Welsh v Allblend Holdings Pty Ltd (No.4) - [2010] FMCA 521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WELSH v ALLBLEND HOLDINGS PTY LTD (No.4)

[2010] FMCA 521

INDUSTRIAL LAW – Non-payment of accrued annual leave and payment in lieu of notice.

INDUSTRIAL LAW – Costs – no costs jurisdiction – whether unreasonable act or omission – failure to attend or indicate position an unreasonable act – costs awarded – assessment of costs – where costs include all legal costs and disbursements.

PRACTICE AND PROCEDURE – Summary judgment – traditionally cautious approach to summary judgment in Federal Magistrates Court not necessary where no appearance by respondent and no evidence in opposition to application for summary judgment.

Federal Magistrates Act 1999 (Cth)
Workplace Relations Act 1996 (Cth), ss.235, 661(4), 666(3)

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352
George v Fletcher (Trustee) [2010] FCAFC 53
Hill v Lang [2010] FCA 629
Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281
Welsh v Allblend Holdings Pty Ltd (No.2) [2010] FMCA 377
Welsh v Allblend Holdings Pty Ltd (No.3) [2010] FMCA 378

Applicant:

PENELOPE JANE WELSH

Respondent/Applicant by Cross-Claim:

ALLBLEND HOLDINGS PTY LTD

Second Respondent by Cross-Claim:

2B WIZARDS PTY LTD

File Number:

PEG 176 of 2009

Judgment of:

Lucev FM

Hearing date:

19 July 2010

Date of Last Submission:

19 July 2010

Delivered at:

Perth

Delivered on:

19 July 2010

REPRESENTATION

Counsel for the Applicant/Second Respondent by Cross-Claim:

Mr M. Fatharly

Solicitors for the Applicant/Second Respondent by Cross-Claim:

Kott Gunning Lawyers

The Respondent/Applicant by Cross-Claim:

No appearance

ORDERS

There be judgment for the applicant in the amount of $23,536.62, payable by the respondent to the applicant by 30 July 2010; and that all other claims and applications in the matter be dismissed, save as set out below.
The respondent pay the applicant’s costs in the sum of $9,000 by 30 July 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 176 of 2009

PENELOPE JANE WELSH

Applicant

And

ALLBLEND HOLDINGS PTY LTD

Respondent/Applicant by Cross-Claim

2B WIZARDS PTY LTD

Second Respondent by Cross-Claim

REASONS FOR JUDGMENT

(Ex tempore – revised from the transcript)

This is an application made orally in these proceedings for summary judgment on behalf of the applicant, supported by an affidavit sworn by the applicant on 16 July 2010 and filed that day.[1] Liberty to make such application was granted by Order 3 of the Court’s Orders of 30 June 2010, which provided that if there was no appearance by the respondent at the mediation listed for 8 July 2010, the applicant could make an application for summary judgment at the directions hearing today, and the applicant has done so.
[1] Affidavit of Penelope Jane Welsh, sworn 16 July 2010 (“Ms Welsh’s Summary Judgment Affidavit”).

Litigation history

It is necessary, in the circumstances, to set out the litigation history of the matter because that is relevant for later purposes.
The application was filed and commenced by way of Statement of Claim on 25 September 2009 and a Response and Defence…

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 521
Decision Date: 19 July 2010

CaseChat Overview and Summary

The applicant, Mr. Welsh, commenced proceedings against Allblend Holdings Pty Ltd, seeking payment of accrued annual leave and payment in lieu of notice, as well as an award of costs. The case was heard in the Federal Magistrates Court, where the respondent failed to appear or file any evidence in opposition to the applicant's application for summary judgment. The primary legal issues before the court were whether the respondent's failure to attend or indicate a position constituted an unreasonable act or omission warranting an award of costs, and whether the Federal Magistrates Court's traditionally cautious approach to summary judgment applied in this case. The court also needed to assess the appropriate amount of costs to award to the applicant.

The court found that the respondent's failure to attend or indicate a position was an unreasonable act or omission. As a result, the court awarded the applicant all of their legal costs and disbursements. The court held that the traditional cautious approach to summary judgment in the Federal Magistrates Court was not necessary in this case, given the respondent's absence and lack of evidence in opposition to the application. The court also considered the amount of costs to award, taking into account the complexity of the case and the efforts made by the applicant's legal representatives.

The Federal Magistrates Court granted judgment in favour of the applicant in the amount of $23,536.62, payable by the respondent by 30 July 2010. The court also ordered that the respondent pay the applicant's costs in the sum of $9,000 by the same date. All other claims and applications in the matter were dismissed, except for the orders mentioned above. The court's decision highlights the importance of appearing in court and providing evidence in opposition to an application for summary judgment, as failure to do so may result in an award of costs against the respondent.

Orders

Orders of the court

There be judgment for the applicant in the amount of $23,536.62, payable by the respondent to the applicant by 30 July 2010; and that all other claims and applications in the matter be dismissed, save as set out below.

The respondent pay the applicant’s costs in the sum of $9,000 by 30 July 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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