West v TWG Services Limited - [2010] FCA 1062

FEDERAL COURT OF AUSTRALIA
West v TWG Services Limited [2010] FCA 1062

Citation: West v TWG Services Limited [2010] FCA 1062

Parties: COLIN WEST v TWG SERVICES LIMITED

File number: VID 1073 of 2008

Judge: GRAY J

Date of judgment: 3 September 2010

Catchwords: PRACTICE AND PROCEDURE – service – service of originating process outside Australia – proceeding including claims for misleading and deceptive conduct, statutory entitlements to accrued annual leave and breaches of contract – whether Court has jurisdiction in the proceeding – whether proceeding consists of or includes one or more of the kinds of proceeding specified in relevant rule – whether prima facie case for all or any relief sought – whether requirements as to evidence to be given on application for leave met – whether statement that service in England to be effected by a private agent validly in accordance with law of England and Wales sufficient

Legislation: Trade Practices Act 1974 (Cth) s 52
Federal Court Rules O 8 r 2, O 8 r 3, O 8 r 3(2)(c), O 13 r 3(1)

Cases cited: West v TWG Services Limited [2009] FCA 1052 referred to

Date of hearing: 3 September 2010

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 10

Counsel for the applicant: Mr S J Wood and Mr M Follett

Solicitor for the applicant: Harmers Workplace Lawyers

Counsel for the respondent: The respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1073 of 2008

BETWEEN:
COLIN WEST
Applicant

AND:
TWG SERVICES LIMITED
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

3 SEPTEMBER 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT the proceeding be stood over until 2.15 pm this day.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1073 of 2008

BETWEEN:
COLIN WEST
Applicant

AND:
TWG SERVICES LIMITED
Respondent

JUDGE:

GRAY J

DATE:

3 SEPTEMBER 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 18 September 2009, I made orders in this proceeding, dismissing an application for leave to serve the originating process on the respondent outside Australia. I also ordered that there be no order as to the applicant’s costs of that application and reserved liberty to the applicant to apply in the proceeding. On that occasion, I published reasons for judgment. See West v TWG Services Limited [2009] FCA 1052. In the course of those reasons for judgment, I expressed the conclusion that, with respect to most of the causes of action on which the applicant then relied, he had failed to satisfy the requirement of O 8 r 3(2)(c) of the Federal Court Rules (Cth) (“the Federal Court Rules”) that he have a prima facie case for the relief he claimed in the proceeding. My conclusion was that, with respect to most of…

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] FCA 1062
Decision Date

CaseChat Overview and Summary

In the case of West v TWG Services Limited, the applicant, Colin West, sought to serve the originating process outside Australia on the respondent, TWG Services Limited, a company incorporated in England. The Federal Court of Australia was tasked with determining whether the Court had jurisdiction over the proceeding, if it constituted one of the types of proceedings specified in the relevant rules, whether there was a prima facie case for all or any of the relief claimed, and if the proposed method of service was valid under the law of England and Wales. The proceeding involved claims for misleading and deceptive conduct, statutory entitlements to accrued annual leave, and breaches of contract.

The Court considered the statutory and accrued jurisdiction over the proceeding, noting that the proceeding included statutory causes of action and contractual claims. It determined that the proceeding was of a kind specified in the Federal Court Rules and that there was a prima facie case for some of the relief claimed, particularly regarding the claim under the Workplace Relations Act and the alleged contractual obligation for an "enhanced redundancy package."

The Court found that the requirements of Order 8 rule 3 of the Federal Court Rules were met, except for the detail regarding the proposed method of service. The Court indicated that it would be content to make the orders sought if the applicant provided further evidence that the proposed method of service was permitted by the law of England and Wales.

The Court stood the matter over to allow the applicant to provide additional evidence regarding the proposed method of service. Once this evidence was provided, the Court would consider making orders to allow the further amended application and statement of claim to be served outside Australia.

Orders