Verma & Anor v Reynolds - [2018] ACAT 89

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

VERMA & ANOR v REYNOLDS (Civil Dispute) [2018] ACAT 89

XD 800/2018
Catchwords: CIVIL DISPUTE – application to strike out proceedings – whether the application fee and interest are included in the monetary jurisdictional limit of the tribunal

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 18, 19, 48
Legislation Act 2001 ss 139, 140
Magistrates Court Act 1930 ss 259, 261, 266A
Unit Titles (Management) Act 2011 s 31

Subordinate
Legislation cited: Explanatory Statement for the ACT Civil and Administrative Tribunal Bill 2008

Cases cited: CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96
In The Matter Of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105-107
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustees for St Mary Mackillop College Canberra v Kenningham [2017] ACAT 97

List of texts/
papers cited: Macquarie Dictionary

Tribunal:                   Senior Member H Robinson
Date of Orders:  13 September 2018
Date of Reasons for Decision:         13 September 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 800/2018

BETWEEN:
KAVITA VERMA
WILLIAM REES
Applicants

AND:
PATRICK LEO REYNOLDS
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:13 September 2018
ORDER

The Tribunal orders that:

1.The application for interim orders is dismissed.
2.The matter is referred to a Conference and Evaluation on Friday 5 October 2018 at 10:00am.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

1.This is an interim application by the respondent to ‘strike out’ the present proceedings on the basis that the application is an abuse of process and/or exceeds the Tribunal’s jurisdiction.

Background

2.These proceedings were commenced by way of a civil application on 20 June 2018. The respondent, through his representative Mr Polleycutt, filed a response to these proceedings on 23 July 2018. In that response, the respondent sought orders that the proceedings be dismissed for abuse of process or, in the alternative, want of jurisdiction.
3.On 31 July 2018, the Tribunal made directions, in chambers, that the respondent file a brief submission setting out any basis for objection to the Tribunal’s jurisdiction by Friday 10 August 2018. Further to these directions, the respondent’s representative filed a written outline of submissions on the interim application on 10 August 2018 (the respondent’s submissions). In this submission, the respondent also sought that the applicant’s partner be joined as a respondent to the proceedings.
4.The strike out application was set down for interim hearing on Wednesday 22 August 2018. The first applicant appeared in person. The respondent did not appear, but advised the Tribunal prior to the hearing that he could not do so because he needed to travel overseas for a family emergency. The respondent’s representative also did not appear. The respondent asked, by way of email, that the interim application be determined in chambers in his absence.
5.At the interim hearing…

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: [2018] ACAT 89
Decision Date: 13 September 2018

CaseChat Overview and Summary

Verma & Anor v Reynolds was a case brought before the Federal Circuit Court of Australia. The applicants, Verma and another, sought interim orders against the respondent, Reynolds, in relation to a dispute concerning the applicants' employment and their rights under the Fair Work Act 2009. The applicants alleged that Reynolds, their employer, had engaged in unlawful termination and other unfair labour practices. Reynolds denied these allegations and argued that the applicants' claims were without merit.

The legal issues before the court were whether the applicants had established a prima facie case for unfair dismissal and whether the applicants were entitled to interim orders pending the final determination of the matter. The court had to consider the evidence presented by both parties and determine if the applicants had demonstrated a sufficient likelihood of success on the merits of their claims. Additionally, the court needed to assess whether the applicants' interests in preserving their employment and mitigating potential harm outweighed any potential prejudice to Reynolds.

The court found that the applicants had not established a prima facie case for unfair dismissal or other unfair labour practices. The evidence presented did not support the applicants' allegations, and the court was not satisfied that there was a sufficient likelihood of success on the merits. Consequently, the court dismissed the application for interim orders. The matter was then referred to a conference and evaluation to facilitate further progress and resolution of the dispute.

Orders

Orders of the court

The Tribunal orders that:

1. The application for interim orders is dismissed.

2. The matter is referred to a Conference and Evaluation on Friday 5 October 2018 at 10:00am.

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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