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) |
| 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…
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- Case
- [2010] FMCA 521
- Decision Date
CaseChat Overview and Summary
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
1.
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.
1.
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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