Whelan v Cigarette and Gift Warehouse Pty Ltd

FEDERAL COURT OF AUSTRALIA

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 695

File number:

QUD 987 of 2015

Judge:

LOGAN J

Date of judgment:

26 April 2017

Catchwords:

PRACTICE AND PROCEDURE – application for freezing orders r 7.32 Federal Court Rules 2011 (Cth) – criteria that must be satisfied for the court to grant a freezing order – applicant must establish ‘a good arguable case’ on a prospective cause of action – freezing order not granted

INDUSTRIAL LAW – employment – costs – whether security for costs order appropriate – where s 570 of Fair Work Act 2009 (Cth) limits availability of costs in proceedings in relation to a matter under the Act – where proceedings involve actions under the Fair Work Act 2009 (Cth) and at common law – whether Fair Work Act 2009 (Cth) limits availability of costs for whole of proceedings – relevant factors – Fair Work Act 2009 (Cth), s 570 – indemnity basis – “unreasonable act or omission”

Legislation:

Competition and Consumer Act 2010 (Cth)

Fair Work Act 2009 (Cth) ss 340, 545, 570

Workplace Relations Act 1996 (Cth)

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574

Insolvency Guardian Melbourne Pty Ltd v Carlei (2016) 111 ACSR 236

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

Date of hearing:

26 April 2017

Registry:

Queensland

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

24

Counsel for the Applicant:

Mr E White

Counsel for the Respondents:

Mr P Roney QC

Solicitor for the Respondents:

Nyst Legal

ORDERS

QUD 987 of 2015

BETWEEN:

ANDREW WHELAN

Applicant

AND:

CIGARETTE & GIFT WAREHOUSE PTY LTD
ACN 055 030 567

First Respondent

TRAVERS BEYNON

Second Respondent

AND BETWEEN:

CIGARETTE & GIFT WAREHOUSE PTY LTD
ACN 055 030 567

Cross-Claimant

AND:

ANDREW WHELAN

Cross-Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	26 APRIL 2017

THE COURT ORDERS THAT:

1.The amended interlocutory application be dismissed.

2.The applicants on the application (respondents in the substantive proceeding) pay the costs of the respondent to that application (applicant in the substantive proceeding) to be taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. Mr Andrew Whelan has instituted proceedings in this Court under the Fair Work Act 2009 (Cth) (Fair Work Act). He claims as to the proceeding as originally constituted that Cigarette & Gift Warehouse Pty Ltd (Cigarette & Gift Warehouse) contravened s 340 of the Fair Work Act by terminating his employment with that company on the basis of a sham reason. His claim is that he was dismissed because he had refused a request that his wife sign a non-disclosure agreement after attending a party at the company’s managing director’s home. In the alternative, he alleges that Cigarette & Gift Warehouse, by its agent Mr Beynon…