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Weber v Carkeek

Weber v Carkeek

Case [2019] FCCA 2572 16 September 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WEBER v CARKEEK & ORS

[2019] FCCA 2572

Catchwords:
INDUSTRIAL LAW – Small claim – claim for unpaid farm work – allegations and issues of pay for applicant subject of proceedings in the Victorian Civil and Administrative Tribunal and appeal to the Supreme Court of Victoria – res judicata – issue estoppel – abuse of process – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.548, 570

Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02

Cases cited:

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Weber v Carkeek (Civil Claims) [2018] VCAT 1944
Weber v Carkeek (Civil Claims) (Costs) [2019] VCAT 488
Robinson v Deep Investments Pty Ltd [2018] FCAFC 232
Blair v Curran (1939) 63 CLR 464
McShane v Image Bollards Proprietary Limited (2011) FMCA 215
Black v Young Republic & Anor [2012] FMCA 729
Ryan v Primesafe [2015] FCA 8
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No.2) [2015] FCAFC 97

Applicant:

MARK WEBER

First Respondent:

ALISON CARKEEK

Second Respondent:

EWAN CARKEEK

Third Respondent:

LORRAINE CARKEEK

File Number:

MLG 2473 of 2018

Judgment of:

Judge O'Sullivan

Hearing date:

1 August 2019

Date of Last Submission:

22 August 2019

Delivered at:

Melbourne

Delivered on:

16 September 2019

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

Self-Represented

Counsel for the First, Second and Third Respondents:

Mr Hooper

Solicitors for the First, Second and Third Respondents:

Davies Moloney

Solicitor from the Fair Work Ombudsman:

Ms West

ORDERS

The proceedings be dismissed.
The applicant pay the respondents’ costs fixed in the amount of $3,000.00 within 14 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2473 of 2018

MARK WEBER

Applicant

And

ALISON CARKEEK

First Respondent

EWAN CARKEEK

Second Respondent

LORRAINE CARKEEK
Third Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for decision concern whether a small claims application filed in this Court should be dismissed because the claims made and parties named in the application are the same as those before the Victorian State Courts.

Background

These proceedings were commenced by an application filed by Mark Weber (“the applicant”) on 17 August 2018 in the Small Claims List of the Court. Alison Carkeek, Ewan Carkeek and Lorraine Carkeek (“the respondents”) were named as the respondents to the application. The application made under s.548 of the Fair Work Act 2009 (Cth) (“the FW Act”), which was accompanied by a Form 5 (setting out the details of the claim) first came before the Court on 22 February 2019.
On 21 February 2019, the respondents sent to the Court what purported to be a statement on behalf of the respondents. On 22 February 2019, a response was filed by the respondents. When the matter came before the Court the applicant appeared in person, Ms Lorraine Carkeek appeared for the respondents and an officer from the Fair Work Ombudsman appeared amicus curiae.
As the respondents alerted the Court in their response, the applicant and the respondents have been involved in proceedings…

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 Weber v Carkeek

Details

AGLC: Weber v Carkeek [2019] FCCA 2572
Case: [2019] FCCA 2572
Decision Date: 16 September 2019

CaseChat Overview and Summary

In *Weber v Carkeek*, heard by Judge O'Sullivan, the applicant, Weber, brought a claim for unpaid farm work against the respondent, Carkeek. The dispute concerned allegations and issues surrounding the applicant's pay, which had previously been the subject of proceedings in the Victorian Civil and Administrative Tribunal (VCAT) and a subsequent appeal to the Supreme Court of Victoria.

The central legal issues before the court were whether the doctrine of *res judicata* or issue estoppel applied to prevent Weber from pursuing his claim, and whether the current proceedings constituted an abuse of process.

Judge O'Sullivan dismissed the application, finding that the issues raised by Weber had already been litigated and determined in the prior VCAT proceedings and the subsequent appeal. The court applied the principles of *res judicata* and issue estoppel, which prevent parties from relitigating matters that have been finally decided by a competent court. The court concluded that allowing Weber to pursue the same claim again would be an abuse of process, as it would undermine the finality of judicial decisions and waste court resources.

Orders