Wilkinson v Wilson Security Pty Ltd (No 2) - [2022] FCA 1161

FEDERAL COURT OF AUSTRALIA
Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161

File number: WAD 138 of 2021

Judgment of: COLVIN J

Date of judgment: 27 September 2022

Date of publication of reasons: 28 September 2022

Catchwords: REPRESENTATIVE PROCEEDINGS - orders previously made declassing the proceedings subject to any objection by a group member - where representative applicant is a litigant in person - where there exist over 200 group members - where 41 written objections received - where representative applicant did not object to declassing orders - where group members expressed a willingness to allow representative applicant to continue to conduct proceedings - whether a representative applicant may appear in person - declassing orders made

Legislation: Fair Work Act 2009 (Cth)

Cases cited:
Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479

Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416

Wilkinson v Wilson Security Pty Ltd [2022] FCA 756

Division: Fair Work Division

Registry: Western Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 13

Date of hearing: 27 September 2022

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondents: Ms R Howe

Solicitor for the Respondents: Seyfarth Shaw Australia

ORDERS

WAD 138 of 2021

BETWEEN:
PETER LESLIE WILKINSON

Applicant

AND:
WILSON SECURITY PTY LTD (ABN 90 127 406 295)

First Respondent

JOSE CANADAS

Second Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

27 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.Pursuant to s 33N(1)(d) of the Federal Court of Australia Act 1976 (Cth) on and from 21 October 2022 this proceeding shall no longer continue as a representative proceeding under Part IV of the Act.
2.Pursuant to s 33ZF of the Act any limitation period shall begin to run again on and from 28 October 2022.
3.There be no order as to costs of the representative proceeding.
4.On or before 3 October 2022 the respondents do give notice of these orders to each of the 203 group members it has identified as falling within the group member definition set out in the Further Amended Statement of Claim filed 9 March 2022 by sending to each group member by email to the most recent email or otherwise to the most recent mail address held by the first respondent in respect of that group member.
5.There be liberty to the respondents to apply as to the time for compliance for these orders.
6.The case management hearing in these proceedings be adjourned to a date to be fixed after the conclusion of the mediation.

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

REASONS FOR JUDGMENT
COLVIN J:

Mr Peter Wilkinson commenced representative proceedings in this Court in 2021. The proceedings are against Wilson Security Pty Ltd and Mr Jose Canadas, a manager employed by Wilson Security. The application seeks relief…

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 Wilson Security Pty Ltd (No 2)

Details

AGLC: Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161
Case: [2022] FCA 1161
Decision Date: 27 September 2022

CaseChat Overview and Summary

Wilkinson brought a representative proceeding against Wilson Security Pty Ltd on behalf of over 200 group members, all of whom had been employed by the respondent as security guards in Western Australia. Wilkinson, who appeared in person, did not object to the court's previous declassing orders and the group members expressed a willingness to allow Wilkinson to continue to conduct the proceedings. Wilson Security submitted that Wilkinson should not be allowed to continue to represent the group members because he was not a lawyer, had not filed an affidavit of merit, and had not been appointed by the group members as their representative. The court was required to determine whether Wilkinson, as a litigant in person, could continue to act as the representative of the group members in the proceeding.

The court noted that the Federal Court of Australia Act 1976 (Cth) does not provide a mechanism for a litigant in person to be appointed as a representative in a proceeding. However, the court also found that the group members had expressed a willingness to allow Wilkinson to continue to act on their behalf. The court considered this to be a compelling factor and concluded that it should not interfere with the group members' wishes, despite the absence of a formal appointment. The court found that Wilkinson could continue to represent the group members, but that the proceeding should be declassed.

Accordingly, the court made orders declassing the proceeding and setting aside the previous declassing orders. The court ordered that Wilkinson could continue to represent the group members in the proceeding. The court also made orders resetting the limitation period and requiring the respondents to notify the group members of the court's orders. The court further made orders for costs and adjourned the case management hearing pending the conclusion of mediation.

Orders

Orders of the court

1. Pursuant to s 33N(1)(d) of the Federal Court of Australia Act 1976 (Cth) on and from 21 October 2022 this proceeding shall no longer continue as a representative proceeding under Part IV of the Act.

2. Pursuant to s 33ZF of the Act any limitation period shall begin to run again on and from 28 October 2022.

3. There be no order as to costs of the representative proceeding.

4. On or before 3 October 2022 the respondents do give notice of these orders to each of the 203 group members it has identified as falling within the group member definition set out in the Further Amended Statement of Claim filed 9 March 2022 by sending to each group member by email to the most recent email or otherwise to the most recent mail address held by the first respondent in respect of that group member.

5. There be liberty to the respondents to apply as to the time for compliance for these orders.

6. The case management hearing in these proceedings be adjourned to a date to be fixed after the conclusion of the mediation.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	WAD 138 of 2021
Judgment of:	COLVIN J
Date of judgment:	27 September 2022
Date of publication of reasons:	28 September 2022
Catchwords:	REPRESENTATIVE PROCEEDINGS - orders previously made declassing the proceedings subject to any objection by a group member - where representative applicant is a litigant in person - where there exist over 200 group members - where 41 written objections received - where representative applicant did not object to declassing orders - where group members expressed a willingness to allow representative applicant to continue to conduct proceedings - whether a representative applicant may appear in person - declassing orders made
Legislation:	Fair Work Act 2009 (Cth)
Cases cited:	Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	13
Date of hearing:	27 September 2022
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Ms R Howe
Solicitor for the Respondents:	Seyfarth Shaw Australia

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	27 SEPTEMBER 2022