Williams v Canberra Urology Pty Ltd - [2012] FMCA 945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLIAMS v CANBERRA UROLOGY PTY LTD

[2012] FMCA 945

INDUSTRIAL LAW – Small claim – payment on termination in lieu of notice – later allegations of ‘serious misconduct’ against employee not made in earlier correspondence with Fair Work Inspector – claims of set-off – inter-play of ‘small claims procedure’ and principles regarding admission of ‘new evidence’.

Fair Work Act 2009 ss.12, 117(3)(a) & (b), 123(1)(b), 324, 548(3)
Fair Work Regulations 2009 reg.1.07(1)-(3)

Bing! Software v Bing Technologies (No.2) [2008] FCA 1761
Buonouar v The Spanish Club Ltd (1998) 94 IR 166
Finance Sector Union v Australia & New Zealand Banking Group Limited (2000) 104 IR 33
Lee v Professional Services Review Committee No.292 (No.2) [2010] FCA 1490
Logan v Otis Elevator Co Pty Ltd (1999) 94 IR 218
Miller v Australian Industrial Relations Commission (2001) 183 ALR 419
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Workers Union (NSW) v Gartrell White (No.3) (1990) 35 IR 70
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250
Tullett Prebon (Australia) Pty Ltd v Purcell [2009] NSWSC 1079

Applicant:

MICHELLE WILLIAMS

Respondent:

CANBERRA UROLOGY PTY LTD

Amicus curiae:

FAIR WORK OMBUDSMAN

File Number:

CAG 1 of 2012

Judgment of:

Neville FM

Hearing date:

20 August 2012

Date of Last Submission:

17 September 2012

Delivered at:

Canberra

Delivered on:

16 October 2012

REPRESENTATION

Counsel for the Applicant:

Self Represented

Counsel for the first Respondent:

Self Represented

Advocate for the amicus curiae

Ms Kovalsky

Solicitors for the amicus curiae

Fair Work Ombudsman

ORDERS

Within 14 days the Respondent pay the Applicant the sum of $998.08.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAG 1 of 2012

MICHELLE WILLIAMS

Applicant

And

CANBERRA UROLOGY PTY LTD

Respondent

FAIR WORK OMBUDSMAN

Amicus curiae

REASONS FOR JUDGMENT

Introduction

According to the Form 5 filed with this Court on 3^rd January 2012, on 19^th May 2008 the Applicant was employed as the practice manager of the Respondent, whose sole director and share-holder is Dr M.J. Mulcahy. He is the principal of the specialist medical practice which is operated through the Respondent company. The Applicant remained in her position until her services were terminated, with immediate effect, on 10^th March 2011. It was Dr Mulcahy who terminated Ms Williams’ employment.
Upon the termination of her employment, Ms Williams received two weeks pay in lieu of notice, pursuant to s.117(3)(a) of the Fair Work Act 2009 (“the Act”).
The current application, brought in this Court’s ‘small claims division’, seeks to recover a further amount of $998.08, being an amount said to be owed to Ms Williams pursuant to s.117(3)(b) of the Act. That sub-section provides that the periods set out in the table in s.117(a) shall increase “by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.”
Ms Williams contends that she…

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: [2012] FMCA 945
Decision Date: 16 October 2012

CaseChat Overview and Summary

Williams v Canberra Urology Pty Ltd was a case heard before the Australian Federal Court, where the parties were engaged in a dispute over unpaid wages and entitlements. The Fair Work Ombudsman (FWO) filed a claim against Canberra Urology Pty Ltd, asserting that the company had failed to pay its employees the correct wages and entitlements. The case required the court to determine the admissibility of new evidence presented by the respondent after the conclusion of the hearing. The respondent, Dr. Mulcahy, sought to introduce additional evidence in support of their case, including affidavits and documents that were not previously filed or served. The FWO argued against the admissibility of this new evidence, citing the lack of formal application and the principle of finality in litigation.

The court examined the circumstances under which a party may be granted leave to introduce new evidence after the conclusion of a hearing. It considered the established criteria for admitting fresh evidence, which includes the materiality of the evidence, the inability to discover it earlier, the lack of inadvertence, and the absence of prejudice to the opposing party. The court also referenced previous cases that dealt with similar issues, such as Bing! Software v Bing Technologies (No.2) and Inspector-General in Bankruptcy v Bradshaw. Ultimately, the court had to balance the interests of justice with the principle of finality in litigation when deciding whether to allow the new evidence.

The court found that the respondent had not made a formal application for leave to introduce the new evidence, and the evidence had not been properly filed or served. It concluded that the interests of justice did not outweigh the principle of finality, and thus, the new evidence was not admissible. The court ordered that within 14 days, the respondent must pay the applicant the sum of $998.08.

Orders

Orders of the court

Within 14 days the Respondent pay the Applicant the sum of $998.08.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to the evidence of these witnesses – in relation to which no formal application for leave was sought by Dr Mulcahy, but their evidence was given in the course of the hearing nonetheless – and in relation to other matters set out in Dr Mulcahy’s submissions, the FWO submitted as follows:Although no formal request for leave has been made, it appears that the respondent is attempting to seek leave to adduce new evidence after the conclusion of the hearing. The respondent’s submissions filed on 4 September 2012 are stated to be “given under oath” and contain evidence in support of the respondent’s case (referred to hereafter as the ‘New Evidence’). Additionally, the respondent’s submissions make reference to affidavits of Gillian Moyes, Barbara Hodge and Lynda Lawson. The referred affidavits are not annexed to the respondent’s submissions and have not otherwise been filed or served in relation to this matter. The respondent’s submissions also refer to a series of documents (under the heading ‘Supporting Documentation’). Several of the supporting documents are already in evidence, however, where this is not the case the supporting documents have not been annexed to the respondent’s submissions or otherwise filed and served. The FWO further submitted that the Court should consider various cases that deal with applications to adduce fresh or new evidence in circumstances where, as here, the hearing has concluded. It is sufficient to recall the comments of Collier J in Bing! Software v Bing Technologies (No.2) (“Bing Software”).[4][4] Bing! Software v Bing Technologies (No.2) [2008] FCA 1761. Collier J’s comments in Bing Software have recently been considered and applied by Katzmann J in Lee v Professional Services Review Committee No.292 (No.2) [2010] FCA 1490 at [20] & [21]. At [12] – [15] in Bing Software, her Honour said:[12] It is not in dispute that the Court has the power to grant leave for further evidence-in chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612, Gulf Pacific Pty Ltd v Londish [1992] FCA 502, Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256, McCarthy v McIntyre [2000] FCA 1250, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010.[13] In Bradshaw [2006] FCA 22, Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows:[24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61–2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].[14] With respect to fresh evidence, Muirhead J held in Murray v Figge 4 ALR 612 that fresh evidence should be admitted only when:(a) it is so material that the interests of justice require it;(b) the evidence if believed would most probably affect the result;(c) the evidence could not by reasonable diligence have been discovered before;(d) inadvertence was established; and(e) no prejudice was suffered by the other party by reason of its introduction at a late point of time.[15] To that list can be added:• it is necessary that the evidence sought to be adduced is relevant within the meaning of s 56 Evidence Act 1995 (Cth) and is of probative value (cf Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at [18]); and• the court must be conscious of the principle of finality of litigation in deciding whether to exercise discretion to allow evidence after the conclusion of the trial (Bradshaw [2006] FCA 22 at [25]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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