FEDERAL COURT OF AUSTRALIA
Victorian Xray Group Pty Ltd v Ho [2020] FCA 27
Appeal from: Industrial Division of the Magistrates’ Court of Victoria (J13120311/2019, Orders of 20 August 2019) File number: VID 1008 of 2019 Judge: STEWARD J Date of judgment: 24 January 2020 Catchwords: PRACTICE AND PROCEDURE – appeal from decision of magistrate sitting in the Industrial Division of the Magistrates’ Court of Victoria – notice of objection to competency – whether appeal lies to the Federal Court by reason of s. 565 of the Fair Work Act 2009 (Cth) – whether the magistrate was exercising jurisdiction under the Fair Work Act 2009 (Cth) – whether matter simply concerned contractual enforcement Legislation: Acts Interpretation Act 1901 (Cth) s. 2B
Fair Work Act 2009 (Cth) ss. 113, 565, 570
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Judiciary Act 1903 (Cth) s. 39
Magistrates’ Court Act 1989 (Vic) s. 4
Cases cited: Bannon v. Nauru Phosphate Royalties Trust [2019] VSCA 303
Elders Ltd v. Swinbank (2000) 96 FCR 303
Maughan Thiem Auto Sales Pty Ltd v. Cooper (2013) 216 FCR 197
Moorgate Tobacco Co Ltd v. Philip Morris Ltd (1980) 145 CLR 457
Plancor Pty Ltd v. Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357
Treasury Wine Estates Vintners Ltd v. Pearson [2019] FCAFC 21
Date of hearing: 18 December 2019 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 39 Counsel for the Appellants: Ms R. Preston Solicitor for the Appellants: Webb Korfiatis Commercial Counsel for the Respondent: Mr R. A. Millar Solicitor for the Respondent: Capree Lawyers ORDERS
VID 1008 of 2019 BETWEEN: VICTORIAN XRAY GROUP PTY LTD
First Appellant
VICTORIAN XRAY GROUP (FRANKSTON) PTY LTD
Second Appellant
AND: STELLA HO
Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
24 JANUARY 2020
THE COURT ORDERS THAT:
1.The respondent’s Notice of Objection to Competency filed on 14 October 2019 be dismissed.
2.The matter be referred to mediation before a Registrar of this Court on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWARD J:
On 20 August 2019, a magistrate, sitting in the Industrial Division of the Magistrates’ Court of Victoria, gave judgment in favour of the respondent (in the sum of $45,493.27, plus interest and costs). The respondent, who had been employed by either the first or second appellant, had claimed that she had been underpaid in breach of her contract of employment. That claim was upheld. The appellants seek to appeal that decision to this Court. The respondent objects to the competency of that appeal.
Legislative Provisions
The operative provision here is s. 565 of the Fair Work Act 2009 (Cth) (the “FW Act”). It relevantly provides as follows:
Appeals from eligible State or Territory courts
Appeals from original decisions of eligible State or Territory courts
(1)An appeal…
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- Case
- [2020] FCA 27
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Federal Circuit Court was whether the appeal from the Magistrates’ Court to the Federal Court was permissible under section 565 of the Fair Work Act 2009 (Cth). This section deals with appeals from decisions made by the Industrial Division of the Magistrates’ Court. Another significant issue was whether the magistrate was exercising jurisdiction under the Fair Work Act 2009 (Cth) or if the matter was purely a matter of contractual enforcement. The court also considered whether Ms Ho's claim was primarily contractual or had a statutory underpinning as provided by section 113 of the Fair Work Act 2009 (Cth).
In resolving these issues, the Federal Circuit Court referred to section 4(3C) of the Magistrates’ Court Act, which mandates that the Industrial Division must exercise its jurisdiction with minimal legal form and technicality. The court found that the appeal was permissible under section 565 of the Fair Work Act 2009 (Cth) because the matter involved the interpretation and application of the Fair Work Act 2009 (Cth) and related awards. Furthermore, the court determined that the magistrate was exercising jurisdiction under the Fair Work Act 2009 (Cth) as the matter involved the enforcement of awards and related statutory provisions. The court also concluded that Ms Ho's claim had both a contractual and statutory basis, but the contractual claims were clear and determinative.
The court dismissed the respondent’s Notice of Objection to Competency and ordered the matter to be referred to mediation before a Registrar of the Federal Circuit Court. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such cases.
Orders
Orders of the court
1. The respondent’s Notice of Objection to Competency filed on 14 October 2019 be dismissed.
2. The matter be referred to mediation before a Registrar of this Court on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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