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Welsh v Allblend Holdings Pty Ltd (No. 2)

Welsh v Allblend Holdings Pty Ltd (No. 2)

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Case Copied 4 June 2010 25 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WELSH v ALLBLEND HOLDINGS PTY LTD (No.2)

[2010] FMCA 377

INDUSTRIAL LAW – Proceedings instituted in Fair Work Division – whether jurisdiction of Court to be exercised in both Fair Work Division and General Division – whether direction necessary from Chief Federal Magistrate allocating matter to Fair Work Division or General Division.

COURTS AND TRIBUNALS – Federal Magistrates Court of Australia – jurisdiction – associated jurisdiction – incidental jurisdiction.

WORDS AND PHRASES – “associated jurisdiction” – “incidental jurisdiction”.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Conciliation and Arbitration Act 1904 (Cth), ss.110, 144(1)
Corporations Act 2001 (Cth), s.1317H
Fair Work Act 2009 (Cth), s.570
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch.2 Item 11(1); Sch.17 Items 6 and 12
Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009
Federal Court of Australia Act 1976 (Cth), ss.13, 32
Federal Court Rules
Federal Magistrates Act 1999 (Cth), ss.10A, 14, 18, 76, 77, 79
Federal Magistrates Court Rules 2001 (Cth), r.1.05(2)
Trade Practices Act 1974 (Cth), ss.52, 53B
Workplace Relations Act 1996 (Cth), ss.232, 661(2), 824
Workplace Relations Amendment (Work Choices) Act 2005 (Cth), Sch.1

Attorney-General v R (1957) 95 CLR 529
Australian Communications and Media Authority v Mobile Gate Ltd a company incorporated in Hong Kong (No. 3) [2009] FCA 1154
Bailey v Krantz & Ors (1984) 55 ALR 345
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Henderson v Pioneer Homes Pty Ltd (1979) 38 FLR 460
Henderson v Pioneer Homes Pty Ltd (1979) 142 CLR 294
Jackson v Sterling Industries Ltd (1986) 69 ALR 92
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Kennedy v Australasian Coal and Shale Employees Federation & Anor (1983) 78 FLR 252
Kennedy v Australasian Coal and Shale Employees Federation & Anor (No. 2) (1983) 74 FLR 241
Maddison v Qualtime Association Inc (2010) 113 ALD 390; [2010] FMCA 25
Meat and Allied Trades Federation of Australia v The Australasian Meat Industry Employees Union (1984) 2 FCR 419
Parsons v Martin (1984) 5 FCR 235
R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254
Re Read (2007) 164 FCR 237; [2007] FCA 1985
Siminton v Australian Prudential Regulation Authority (2008) 249 ALR 413; [2008] HCA 44
Skipworth v State of Western Australia & Ors (No. 2) (2008) 218 FLR 16; [2008] FMCA 544
Stack v Coast Securities (No. 9) Pty Ltd (1983) 57 ALJR 731
VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291; [2005] FCAFC 91
Welsh v Allblend Holdings Pty Ltd (No. 1) [2010] FMCA 281
Welsh v Allblend Holdings Pty Ltd (No. 3) [2010] FMCA 378
Zentai v O’Connor & Ors (2009) 263 ALR 511; [2009] FCA 1597

Commonwealth of Australia, Senate, Parliamentary Debates, 16 November 1976
Commonwealth of Australia, House of Representatives, Parliamentary Debates, 19 March 2009
Commonwealth of Australia, House of Representatives, Fair Work (Transitional Provisions and Consequential Amendments) Bill…

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: [2010] FMCA 377
Decision Date: 4 June 2010

CaseChat Overview and Summary

This case involved proceedings brought by Penelope Jane Welsh against Allblend Holdings Pty Ltd in the Federal Magistrates Court of Australia. Ms Welsh sought payment of monies she alleged were payable to her under statute on her termination, while Allblend Holdings sought to institute a cross-claim against Ms Welsh and a third party, 2B Wizards Pty Ltd. The legal issues arose from the question of whether the claims made in the amended defence and cross-claim were within the Fair Work Division jurisdiction of the Court or in the General Division jurisdiction of the Court. The court examined the relevant provisions of the Federal Magistrates Act 1999 (Cth), the Federal Magistrates Court Rules 2001 (Cth) and the Federal Court of Australia Act 1976 (Cth). The court also looked at relevant cases and the second reading speech and Explanatory Memorandum of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The court found that the claims in the amended defence and cross-claim were associated matters within the Fair Work Division jurisdiction of the Court and that it was not necessary for a direction to be made by the Chief Federal Magistrate allocating the matter to either the Fair Work Division or the General Division of the Court. The court made a declaration that the application had been correctly instituted and would continue to be heard and determined in the Fair Work Division jurisdiction of the Court. There was no order as to costs.

Orders