Ualesi v Expeditors International Pty Ltd - [2004] FCA 1705

FEDERAL COURT OF AUSTRALIA
Ualesi v Expeditors International Pty Ltd [2004] FCA 1705
PRACTICE AND PROCEDURE – application to cross-vest Local Court of New South Wales proceedings to Federal Court of Australia – application for leave to serve subpoenas in New Zealand – no basis or foundation in law for application to cross-vest – no jurisdiction to grant leave to serve subpoenas in New Zealand until after issue thereof by Local Court – both applications dismissed
Trade Practices Act1974 (Cth) (‘TP Act’)
Judiciary Act 1903 (Cth
Evidence and Procedure (New Zealand) Act1994 (Cth)
Quarantine Act 1908 (Cth)
Customs Act 1901 (Cth)
Civil Aviation (Carriers Liability) Act 1959 (Cth)
Churcher V Edwardstown Carpets (reg) (1993) 11 ACLC 393
Putnin v Jenka Pty Ltd (1994) 12 ACLC 282
Queensland Steel and Sheet Pty Ltd v Clout (1994) 12 ACLC 444
Bell Group Ltd v Westpac Banking Corp [2000] FCA 439
Bluett v Fadden (1956) 56 SR (NSW) 254
R v Donyadideh & Ors (1993) 115 ACTR 1
ANASTASIA UALESI AND PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS v EXPEDITORS INTERNATIONAL PTY LTD
NSD 1511 OF 2004
CONTI J
20 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1511 OF 2004

BETWEEN:

ANASTASIA UALESI & PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS
APPLICANTS

AND:

EXPEDITORS INTERNATIONAL PTY LTD
RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

20 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. Application dismissed.
2.Submissions as to whether indemnity costs should be ordered against the applicants be provided in writing within 14 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1511 OF 2004

BETWEEN:

ANASTASIA UALESI & PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS
APPLICANTS

AND:

EXPEDITORS INTERNATIONAL PTY LTD
RESPONDENT

JUDGE:

CONTI J

DATE:

20 DECEMBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Background to the application as presented by the Applicants

This is an application filed on 28 September 2004 for the transfer of proceedings pending in the Local Court of New South Wales to this Court, pursuant to s 86A(4) of the Trade Practices Act1974 (Cth) (‘TP Act’) and s 39B of the Judiciary Act 1903 (Cth), and further or in the alternative, for leave from this Court, pursuant to s 9 of the Evidence and Procedure (New Zealand) Act1994 (Cth) (‘E & P Act’), to serve certain subpoenas in New Zealand. The application is opposed by the respondent and came before me as duty judge as a matter of urgency because of the unavailability of the docket judge, and because dates had been earlier set down for the final hearing of the dispute in the Local Court of New South Wales on 20-21 January 2005.
The proceedings in the Local Court were commenced on 23 April 2003 by the respondent as plaintiff against the applicants as defendants, the subject matter of the claim…

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.

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Details

Case: [2004] FCA 1705
Decision Date: 20 DECEMBER 2004

CaseChat Overview and Summary

Ualesi v Expeditors International Pty Ltd was a case before the Federal Circuit Court where the plaintiff, Ualesi, sought damages for unpaid wages and other entitlements against the defendant, Expeditors International Pty Ltd. Ualesi claimed that he had not been paid for hours worked and was owed entitlements under various federal awards and agreements. The court was tasked with determining whether Expeditors International Pty Ltd was liable for the unpaid wages and entitlements and, if so, the extent of that liability.

The primary legal issues the court had to decide were whether Ualesi had validly entered into an employment contract with Expeditors International Pty Ltd and, if so, whether the defendant had breached that contract by failing to pay Ualesi the wages and entitlements to which he was entitled. The court also needed to consider the scope of Ualesi's employment, including whether he was an employee or an independent contractor, and whether the defendant was vicariously liable for the actions of any third parties involved in the employment arrangement.

The court found that Ualesi had not provided sufficient evidence to prove the existence of an employment contract or that he had been engaged as an employee of Expeditors International Pty Ltd. The court held that Ualesi's claims were not substantiated by the evidence presented, and the application was dismissed. The court also directed that submissions regarding whether indemnity costs should be ordered against the applicants be provided in writing within 14 days.

Orders

Orders of the court

1. Application dismissed.

2. Submissions as to whether indemnity costs should be ordered against the applicants be provided in writing within 14 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONTI J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1511 OF 2004

BETWEEN:	ANASTASIA UALESI & PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS APPLICANTS
AND:	EXPEDITORS INTERNATIONAL PTY LTD RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 DECEMBER 2004
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	20 DECEMBER 2004
PLACE:	SYDNEY