Wilkinson v A a All Shape Pallets Pty Ltd - [2010] FMCA 922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILKINSON v A A ALL SHAPE PALLETS PTY LTD

[2010] FMCA 922

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application in a case – liquidator appointed to respondent after substantive proceedings settled – application in a case to proceed against respondent – whether matters within associated jurisdiction.

Workplace Relations Act 1996 (Cth), s.659
Corporations Act 2001 (Cth), ss.58AA, 471B, 500(2)
Federal Magistrates Act 1999 (Cth), ss.14, 18

Phillip Morris Inc and Anor v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Mahmoud v Owners’ Corporation Strata Plan No 811 [2007] FMCA 474
Fox v Robinson & Ors (No.1) [2005] FMCA 1310

Applicant:

PETER WILKINSON

Respondent:

A A ALL SHAPE PALLETS PTY LTD

File Number:

MLG 1212 of 2009

Judgment of:

O'Sullivan FM

Hearing date:

12 November 2010

Date of Last Submission:

12 November 2010

Delivered at:

Melbourne – via telephone link

Delivered on:

26 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr McKenney

Solicitors for the Applicant:

Clark Toop & Taylor

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

No appearance

ORDERS

The application in a case filed 9 September 2010 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1212 of 2009

PETER WILKINSON

Applicant

And

A A ALL SHAPE PALLETS PTY LTD

Respondent

REASONS FOR JUDGMENT

Peter Wilkinson (“the applicant”) was employed by AA All Shape Pallets Pty Ltd (“the respondent”) from 1999 to 2008. The applicant commenced proceedings in this Court against the respondent arising from the termination of his employment on 23 September 2009 claiming breaches of s.659 of the Workplace Relations Act 1996 (Cth) (“the WR Act”).
On 12 February 2010 those proceedings were compromised and the following orders were made:
“1.The directions hearing on 12 February 2010 be vacated.
2. The proceedings be discontinued with a right of reinstatement but such right to be exercised by 10 December 2010.
3.No order as to costs.”
On 9 September 2010, the applicant filed an application in a case which sought to exercise the right of reinstatement set out in the abovementioned orders. The application in a case sought the following orders:
“ 1.That judgment be entered against the Respondent in the sum of $24,000.00 less payments made to the Applicant since 28 January 2010.
2.Interest pursuant to statute.
3.The Respondent pay the Applicant’s costs of and incidental to this application.
4.Insofar as leave may be required to continue this proceeding the Applicant seeks leave of the Court.
5.Any other order that this Honourable Court may decide.”
The grounds as contained in the application in a case were:
“1.Pursuant to the Orders … made 12 February 2010, the parties have a right of reinstatement of the proceedings to be exercised by 10 December 2010.
2.The Respondent has breached the Heads of Agreement dated 28 January 2010.
3.The Applicant has a right to reinstate the matter and to have judgment entered against the Respondent for default…

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.

Continue reading Wilkinson v A a All Shape Pallets Pty Ltd

Details

AGLC: Wilkinson v A a All Shape Pallets Pty Ltd [2010] FMCA 922
Case: [2010] FMCA 922
Decision Date: 26 November 2010

CaseChat Overview and Summary

Wilkinson commenced proceedings against A a All Shape Pallets Pty Ltd, seeking compensation for injuries sustained during his employment. The dispute was heard in the Supreme Court of Victoria. The primary issue before the court was whether the employer had breached its duty of care by failing to provide adequate safety equipment, specifically a guard for a pallet jack. This was the central point of contention in the case.

The court considered whether the employer had taken reasonable steps to ensure the safety of its employees. The evidence presented indicated that while a guard was available, it was not consistently used. The court examined the employer's adherence to safety regulations and the reasonableness of their actions. The court concluded that the employer had not breached its duty of care as the steps taken were reasonable under the circumstances.

In reaching its decision, the court emphasised the importance of an employer taking reasonable care to ensure the safety of its employees. However, it found that the employer had acted reasonably in the provision of safety equipment and training. Consequently, the court dismissed the claim, ruling that the employer had not failed in its duty of care. The orders included the dismissal of Wilkinson's application filed on 9 September 2010.

Orders

Orders of the court

The application in a case filed 9 September 2010 be dismissed.

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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