Webb v Suntown Enterprises WA Pty Ltd
[2008] FMCA 1706
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEBB v SUNTOWN ENTERPRISES WA PTY LTD | [2008] FMCA 1706 |
| INDUSTRIAL LAW – WORKPLACE RELATIONS – Application in a case to deliver up property the subject of pending proceedings – property in applicant’s possession which was previously in respondent’s possession – property taken possession of by unlawful means – order made to return property. |
| Federal Magistrates Act 1999 (Cth), s.14 |
| Applicant: | CHRISTOPHER MARK WEBB |
| Respondent: | SUNTOWN ENTERPRISES WA PTY LTD |
| File Number: | PEG 186 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 December 2008 |
| Date of Last Submission: | 15 December 2008 |
| Delivered at: | Perth |
| Delivered on: | 15 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms. L. Horwood |
| Solicitors for the Applicant: | L. Horwood Solicitor |
| Counsel for the Respondent: | Mr D. Pratt |
| Solicitors for the Respondent: | Jackson McDonald |
ORDERS
Filing of the Application in a Case be dispensed with and the time for service be abridged.
The Applicant deliver up to the Respondent possession of Guardor Triple Horse Float registration no. ITJF 489 Chassis VIN 6T9T27AB807FX017 manufactured 2008 (“Horse Float”) by 4:00pm on 15 December 2008.
Until further order, the Respondent keep the Horse Float at Lot 2540, Chittering Road, Chittering, Western Australia.
Until further order, the Applicant be restrained from entering on to the property at Lot 2540, Chittering Road, Chittering whether by his servants, agents or howsoever, and from interfering with the Respondent’s possession of the Horse Float.
The matter be listed for hearing on 8 January 2009 at 10:15am on the affidavits presently filed and any further oral evidence the parties may wish to adduce.
There be liberty to apply.
Costs of the Respondent’s Application in a Case and the directions hearing be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 186 of 2008
| CHRISTOPHER MARK WEBB |
Applicant
And
| SUNTOWN ENTERPRISES WA PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore - edited and revised from the transcript)
Introduction
In this matter, an application has been made by Mr Webb in relation to entitlements said to arise from a contract of employment entered into with the respondent, Suntown Enterprises WA Pty Ltd. There are various entitlements concerned, including a horse float, and a horse float particularly identified in an application in a case which has been filed by the respondent as a Guardor Triple Horse Float, registration no. 1TJF 489, Chassis VIN 6T9T27AB807FX017, manufactured in 2008.[1]
[1] “Horse Float.”
All of the matters subject to the application have, the Court is told, been settled between the parties, except for the issue of the possession and rightful ownership of the Horse Float.
Current Possession of the Horse Float
The application by Mr Webb identifies the Horse Float as being something to which he is entitled to as a benefit of his contract of employment, and which is to be returned to his possession in good repair, or alternatively, damages to the value of a new horse float. Of course, when that application was made, the Horse Float was in the possession of the respondent. That position has fundamentally changed in the last few days, when possession was taken of the Horse Float by persons unknown, in circumstances which counsel for the respondent is prepared to concede amount to a trespass upon the property of the respondent to recover possession of the Horse Float. Possession of the Horse Float having been taken by persons unknown, the Horse Float is now, it is common ground, in the possession of the applicant, Mr Webb.
Current application in a case
The taking of possession of the Horse Float by persons unknown, and it now being in the possession of the applicant Mr Webb, has caused an urgent application in a case to be filed today. The Court will treat the papers as filed in Court without the necessity to file them in the registry. That urgent application in the case essentially seeks that the Horse Float be delivered up to the respondent forthwith, and also seeks consequential orders in relation to the Horse Float, pending further order of this Court. Submissions have been put to me by Counsel for the applicant and respondent, as to the respective positions of the parties in relation to the possession of the Horse Float.
Consideration
The matter which carries most weight with the Court is this: the applicant having made an application to the Court for possession of the Horse Float and delivery up of the Horse Float as a consequence of the contract of employment occurred in circumstances where, as indicated above, the Horse Float was then in possession of the respondent. It appears that the applicant is now in possession of the Horse Float as a consequence of an unlawful act. The Court does not countenance either the unlawful act or the applicant taking possession of the Horse Float in circumstances where, given the concessions made by counsel for the respondent, it must have been apparent that, at the very least, the respondent did not consent to the applicant having possession of the Horse Float. That ought to also have been evident from the papers filed in these proceedings.
The Court takes the view that as a matter of equity (in that regard, the Court refers to s.14 of the Federal Magistrates Act 1999 (Cth) and the remedies that are available to the Court):
a)the Horse Float ought not have been taken in the circumstances in which it was taken;
b)the applicant ought not have kept possession of the Horse Float in the circumstances in which he took possession; and
c)the Horse Float ought to be returned to the respondent pending determination of these proceedings.
The latter is important because it is readily apparent on the face of the papers, as the Court indicated in an exchange with counsel for the respondent, that there is a contest, and a serious contest, as to who is entitled to possession or ownership of the Horse Float. That is a matter for determination in the proceedings, proceedings brought by the applicant. It is not, in the Court’s view, appropriate for the applicant simply to take possession of the Horse Float, however that has happened, in circumstances where there is an application before this Court by the applicant.
As the Court indicated in an exchange with counsel for the respondent during her submissions, it is the Court’s view that on the papers the strength of the respective cases is one which is not readily apparent to the Court in terms of differentiating them. That is because on the face of the papers one party says that as a consequence of the provisions of their contract of employment they are entitled to the Horse Float and on the other hand, the respondent says that it was never a contractual entitlement that the applicant have possession of the Horse Float, but the employee was merely to use the Horse Float while engaged as an employee.
The Court has had regard to the financial position of the applicant, about which the Court draws no conclusions on the basis of the papers, the evidence appears to be, as counsel for the respondent correctly submits, too thin in that regard.
In those circumstances, the Court proposes that there will be orders in the application in the case in terms sought by the respondent, save that “delivery up forthwith” will be changed to delivery up to the respondent by 4:00pm today 15 December 2008.
Otherwise, there will be orders in the terms sought by the respondent in the application in the case. There will also be an order that the matter be set down for hearing on the affidavits presently filed, and any other oral evidence that the parties lead on the day of hearing, which will be 10:15am on 8 January 2009. There will also be liberty to apply. In respect of the application in the case today, costs of that will be reserved, and the costs of the directions hearing today will also be reserved.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lucev FM.
Deputy Associate: Michele Lord
Date: 18 December 2008
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