WILLIAMS v LG Staff Pty Ltd - [2020] FCCA 1000

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIAMS v LG STAFF PTY LTD

[2020] FCCA 1000

Catchwords:
INDUSTRIAL LAW – Application in a case – respondent failed to appear – application in a case to set aside orders pursuant to Rule 16.05(2)(a) – explanation for failure to appear – whether reasonable explanation – insufficient evidence – prejudice – application in a case dismissed – consent to order for payment being extended.

Legislation:

Fair Work Act 2009 (Cth), ss.545, 548

Federal Circuit Court Act 1999 (Cth), ss.3, 42

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 13.03, 16.05

Cases cited:

Clifford & Mountford [2006] FMCAfam 450

Wint v Medimobile Pty Ltd [2016] FCCA 102

McShane v Image Bollads Pty Ltd [2011] FMCA 215

Applicant:

JAYE WILLIAMS

Respondent:

LG STAFF PTY LTD

File Number:

MLG 2457 of 2019

Judgment of:

Judge O'Sullivan

Hearing date:

7 April 2020

Date of Last Submission:

7 April 2020

Delivered at:

Melbourne

Delivered on:

7 April 2020

REPRESENTATION

Applicant:

In Person

Respondent:

Mr Fisher – Director

ORDERS

Pursuant to Rule 16.05(2)(f) of Federal Circuit Court Rules 2001 order 4 of the orders made on 12 March 2020 be varied as follows:
“4. Pursuant to s.545 of the Fair Work Act 2009 (Cth) the respondent pay the applicant the sum of $8,925.00 gross by no later than 30 June 2020.”
The application in a case filed 1 April 2020 be otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2457 of 2019

JAYE WILLIAMS

Applicant

And

LG STAFF PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

On 12 March 2020, the following orders were made in these proceedings:
“1.The name of the respondent to the application filed on 30 July 2019 be amended to LG Staff Pty Ltd (ACN 165 878 651).
2. The applicant have leave to proceed undefended pursuant to Rule 13.03A(2)(a)(b)(ii)(vii), 13.03B(2)(d) and 13.03C(1)(e) of the Federal Circuit Court Rules 2001.
THE COURT DECLARES THAT:
3. The respondent contravened the Building and Construction General On-site Award 2010 and the Fair Work Act 2009 (Cth).
THE COURT ORDERS THAT:
4. Pursuant to s.545 of the Fair Work Act 2009 (Cth) the respondent pay the applicant the sum of $8,925.00 gross within 14 days of service of this order on the respondent.
5. The applicant serve the respondent with a copy of this order within 14 days for this date.
THE COURT NOTES:
A Rule 16.05.
Those orders were made in the context of proceedings that had been commenced by Jaye Williams (“the applicant”). The applicant had filed a small claims application under the Fair Work Act 2009 (Cth) (“the FW Act”) on 30 July 2019. The applicant had named Barry Williams as the respondent (“the respondent”).
The application was made returnable on 12 March 2020. For reasons given ex tempore that day the orders referred to earlier were made. In summary (as well as correctly recording the applicant’s former employer as the respondent) given the material before the Court the applicant was given…

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: [2020] FCCA 1000
Decision Date: 7 April 2020

CaseChat Overview and Summary

In *Williams v LG Staff Pty Ltd*, the applicant sought to set aside orders made against them pursuant to Rule 16.05(2)(a) of the relevant rules of court. The respondent had failed to appear at a previous hearing, leading to the making of those orders. The core of the dispute revolved around whether the applicant had provided a reasonable explanation for their absence and whether setting aside the orders would cause prejudice to the respondent.

The primary legal issue before the court was to determine whether the applicant's explanation for their failure to appear at the prior hearing was sufficient to warrant setting aside the existing orders. This required an assessment of the reasonableness of the explanation offered and consideration of any prejudice that might befall the respondent if the orders were vacated.

Judge O'Sullivan found that the evidence presented by the applicant regarding their failure to appear was insufficient to establish a reasonable explanation. Consequently, the application to set aside the orders was dismissed. However, the court did grant consent to an order extending the time for payment of the original orders.

Orders