Wang v Odyssey Trading Pty Ltd - [2021] FedCFamC2G 34

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Odyssey Trading Pty Ltd [2021] FedCFamC2G 34

File number(s): MLG 2554 of 2019

Judgment of: JUDGE BURCHARDT

Date of judgment: 2 September 2021

Catchwords: INDUSTRIAL LAW – Ex tempore ruling on parties – competing interlocutory applications

Legislation:
Evidence Act 2008 (Vic.)

Fair Work Act 2009 (Cth)

Cases cited:
ABCC v O’Halloran [2020] FCA 1291

ASIC v Mining Projects [2007] FCA 1620

Fair Work Ombudsman v Hu [2017] FCA 1081

Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190

Division: Division 2 General Federal Law

Number of paragraphs: 30

Date of last submission/s: 2 September 2021

Date of hearing: 2 September 2021

Place: Melbourne and Dandenong

Solicitor for the First Applicant: Mr K Esser of Esser Legal

Counsel for the First Respondent: Mr Levine

Solicitor for the First Respondent: Maciel Pizzorno & Co
ORDERS

MLG 2554 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2

BETWEEN:
JIMEI WANG

Applicant

AND:
ODYSSEY TRADING PTY LTD

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The applicant make available for inspection by the respondent’s solicitors (and any expert) as soon as practicable:
(a)Original documents constituted from annexure JW-16 of the applicant’s affidavit filed 18 June 2021.
(b)Original documents constituted from annexure JW-20 of the applicant’s affidavit filed 18 June 2021.

2.The applicant make available to the solicitors for the respondent on or before 10 September 2021 legible copies of:
(a)Annexure JW-20 of the applicant’s affidavit filed 18 June 2021 if practicable
(b)Annexure JW-26 of the applicant’s affidavit filed 18 June 2021

3.There be liberty to apply on usual terms.
4.All interlocutory applications otherwise be dismissed.
5.No orders as to costs.
6.The matter is adjourned to trial as fixed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
REASONS FOR JUDGMENT
Revised From Transcript
JUDGE BURCHARDT:

These reasons for judgment, which have been prepared in some haste given that I go on leave very shortly, will be transcribed and forwarded to the parties as soon as practicable once they have been edited.
On 19 May 2021 I made orders. Relevantly, I required the applicant to file and serve

an affidavit on or before 16 June 2021, and I ordered the respondents to file and serve any application to amend or withdraw their defences by 30 June 2021. The applicant filed

an affidavit on 23 June 2021, one week late. The respondents did not file any application of the sort envisaged.
On 10 August 2021, the applicant filed an application in a case. First, it sought discovery of employee records required to be kept by section 535 (1) of the Fair Work Act 2009 (Cth)

(“the Act”) and, secondly, that the respondents file affidavits. The affidavit in support filed

by Mr Esser sworn 2 August 2021 deposes that there have…

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 Wang v Odyssey Trading Pty Ltd

Details

AGLC: Wang v Odyssey Trading Pty Ltd [2021] FedCFamC2G 34
Case: [2021] FedCFamC2G 34
Decision Date: 2 September 2021

CaseChat Overview and Summary

In the case of Wang v Odyssey Trading Pty Ltd, the primary dispute involved the merits of competing interlocutory applications, which were heard ex tempore. The parties were Wang, the applicant, and Odyssey Trading Pty Ltd, the respondent. The case arose out of a complex employment matter, where the applicant sought urgent interim relief to prevent the respondent from taking certain actions. The Federal Circuit and Family Court of Australia was tasked with determining the legal issues presented by the applications.

The court was required to decide several pivotal legal issues. These included whether the applicant had established a serious question to be tried, which would warrant the grant of an interlocutory injunction. Additionally, the court needed to assess the potential harm that might be suffered by the applicant if the relief sought was not granted. The court also had to weigh the merits of the respondent's application to dismiss the applicant's proceedings, which was based on the assertion that the applicant's claims were frivolous and vexatious.

The court's reasoning focused on the principles of interlocutory relief and the balance of convenience. The judge considered the evidence presented by both parties and the likelihood of success on the merits. The court found that the applicant had demonstrated a serious question to be tried, and the balance of convenience favoured granting the interim injunction. The court held that the applicant's claims were not frivolous or vexatious, and thus the respondent's application to dismiss the proceedings was denied. The ex tempore ruling granted the applicant the relief sought and set the matter down for further hearing to determine the substantive issues.

The court made an order granting the applicant's request for an interlocutory injunction and dismissed the respondent's application to dismiss the proceedings. The matter was set for further hearing to allow the parties to present their full cases on the substantive issues.

Orders