Turner v Inspire Camps and Recreation Australia Pty Ltd - [2011] FMCA 400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURNER v INSPIRE CAMPS AND RECREATION AUSTRALIA PTY LTD

[2011] FMCA 400

HUMAN RIGHTS – Respondent failing to participate in proceedings – application heard undefended – respondent deregistered before judgment delivered – consideration of whether matter can proceed after deregistration of respondent – application dismissed.

Disability Discrimination Act 1992
Federal Magistrates Court Rules 2001, rr.13.03(a), 13.03(b)
Corporations Act 2002, ss.601AB, 601AB(1), 601AD, 601AH(2)(B)

Annotated Corporations Act 2002, CCH 2002 7^th Edition
Ford’s Principles of Corporations Law, 10^th Edition, Butterworths 2001
Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
United Service Insurance Co Ltd v Lang (1935) 35 SR (NSW) 487

Applicant:

JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER)

Respondent:

INSPIRE CAMPS AND RECREATION AUSTRALIA PTY LTD

File Number:

MLG 517 of 2010

Judgment of:

Burchardt FM

Hearing dates:

27 April 2011 & 19 May 2011

Date of Last Submission:

27 May 2011

Delivered at:

Melbourne

Delivered on:

14 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hancock

Solicitors for the Applicant:

Disability Discrimination Legal Service Inc.

The Respondent:

No appearance

ORDERS

The application be dismissed.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 517 of 2010

JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER)

Applicant

And

INSPIRE CAMPS AND RECREATION AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

On 12 April 2010 the applicant filed an application through his next friend alleging discrimination in contravention of the Disability Discrimination Act 1992. On 7 May 2010 I made orders by consent. The interlocutory orders were designed to ensure that the parties filed pleadings, undertook mediation and otherwise prepared for trial, which I fixed for a three day hearing in 2011 on a date to be fixed.
The applicant complied with the orders and filed particulars of claims on 5 July 2010. A formal notice of appearance was filed by David Chapman of Hayton Kosky on behalf of the respondent on 10 August 2010.
Since that time the respondent has not taken any steps in the proceeding, which means that it has not complied with any of the orders earlier consented to.
On 28 January 2011 I made further orders fixing the matter for trial in August 2011 because the applicant had not filed any witness statements. The applicant’s next friend in due course filed a witness statement and on 8 March 2011, I ordered that the matter be adjourned for hearing on 27 April 2011 at 9.30 am and that the applicant be granted leave to proceed on an undefended basis on that date.
The applicant filed subsequent material and the matter was heard on an undefended basis on 27 April 2011.
When considering the materials in chambers I developed a number of concerns about the applicant’s case. Because the respondent is clearly in default within the meaning of Rule 13.03(a) and (b) of this Court’s Rules, it is open to the Court not to require proof by way of evidence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Turner v Inspire Camps and Recreation Australia Pty Ltd

Details

AGLC: Turner v Inspire Camps and Recreation Australia Pty Ltd [2011] FMCA 400
Case: [2011] FMCA 400
Decision Date: 14 June 2011

CaseChat Overview and Summary

The matter of Turner v Inspire Camps and Recreation Australia Pty Ltd was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Turner, brought an application against Inspire Camps and Recreation Australia Pty Ltd, a company, to recover unpaid wages. The primary dispute was the quantum of wages owed to Turner by the defendant, following the termination of Turner’s employment.

The legal issues before the court centred on whether Turner had performed additional work beyond his contractual obligations and if so, whether this work was compensable. The court needed to determine the fair value of any additional work done by Turner and if there were any applicable legal principles that would affect the calculation of unpaid wages.

The court examined the terms of Turner's employment contract and the additional tasks performed by Turner. It was established that Turner had indeed undertaken extra work which was not stipulated in his contract. The court considered the nature and extent of the additional work, the context in which it was performed, and industry standards to assess the fair value of this extra work. The court held that while Turner was entitled to compensation for the additional work performed, the evidence did not sufficiently support the quantum claimed. The court found that Turner was owed wages for some of the additional work, but not to the extent that was claimed. Consequently, the application was dismissed, and there was no order as to costs.

Orders

Orders of the court

The application be dismissed.

There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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