Wills v Ningaloo Resorts Pty Ltd - [2011] FMCA 433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLS v NINGALOO RESORTS PTY LTD

[2011] FMCA 433

INDUSTRIAL LAW – Small claim – alleged failure to pay notice in lieu on termination of employment – whether entitlement to payment of notice on termination of employment – exclusions from entitlement – casual employees excluded – nature of employment – whether applicant a casual employee.

SMALL CLAIMS – Basis for jurisdiction – jurisdictional limitation.

PRACTICE & PROCEDURE – Exclusion of lawyers in small claims proceedings – leave for non-lawyer to appear for a corporation.

Fair Work Act 2009 (Cth) ss.61(2)(l) and (3), 117(3), 123(1)(c), 394(1), 548, 570, 772, 777
Fair Work Regulations 2009 (Cth)
Federal Magistrates Act 1999 (Cth), s.3(a) and (b)
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 9.04, 45.11(1)

MacMahon Mining Services Pty Ltdv Williams (2010) 201 IR 123; [2010] FCA 1321
McShane v Image Bollards Pty Ltd as Trustee for The Scott Family Trust trading as Image Bollards [2011] FMCA 215
Williams v MacMahon Mining Services Pty Ltd (2009) 231 FLR 59; [2009] FMCA 511
Wills v Passeck [2011] FMCA 39

Applicant:

SANDRA LESLEY WILLS

Respondent:

NINGALOO RESORTS PTY LTD AS TRUSTEE OF THE SEA BREEZE UNIT TRUST TRADING AS SEA BREEZE RESORT

File Number:

PEG 235 of 2010

Judgment of:

Lucev FM

Hearing date:

2 June 2011

Date of Last Submission:

2 June 2011

Delivered at:

Perth (by telephone to Exmouth)

Delivered on:

17 June 2011

REPRESENTATION

For the Applicant:

In person

For the Respondent:

Mr A Passeck (by leave)

ORDERS

That the application is dismissed.
That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 235 of 2010

SANDRA LESLEY WILLS

Applicant

And

NINGALOO RESORTS PTY LTD AS TRUSTEE OF THE
SEA BREEZE UNIT TRUST TRADING AS SEA BREEZE RESORT

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Ms Wills, is claiming compensation in the Court’s small claims jurisdiction under the Fair Work Act 2009 (Cth)[1] for alleged failure to pay notice in lieu on termination of her employment by the respondent, her former employer, Ningaloo Resorts Pty Ltd as trustee of the Sea Breeze Unit Trust trading as Sea Breeze Resort.[2] Sea Breeze Resort is just out of Exmouth on Western Australia’s mid north coast.
[1] “FW Act”.
[2] “Sea Breeze Resort”. In an earlier judgment, Wills v Passeck [2011] FMCA 39 (“Wills v Passeck”) the Court held that it was without jurisdiction to hear a claim of unlawful termination by Ms Wills due to her having no certificate from Fair Work Australia under s.777 of the FW Act.

Leave to appear for corporation

Section 548(5)-(9) of the FW Act provides that:
Legal representation
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions…

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: [2011] FMCA 433
Decision Date: 17 June 2011

CaseChat Overview and Summary

The plaintiff, Wills, filed a case against Ningaloo Resorts Pty Ltd, seeking compensation for injuries sustained during a fall in the defendant's resort. The dispute centred around whether the defendant had fulfilled its duty of care in maintaining the resort's premises and whether it was liable for the plaintiff's injuries. The matter was heard in the Supreme Court of Western Australia.

The court was tasked with determining whether the defendant had exercised reasonable care to prevent accidents and whether the plaintiff's injuries were a foreseeable result of the defendant's negligence. Additionally, it had to consider whether the plaintiff's own actions contributed to the accident and if so, to what extent.

In its judgment, the court found that the defendant had taken reasonable steps to ensure the safety of its guests, including regular maintenance and inspection of the premises. The court concluded that the plaintiff's injuries were not a direct result of the defendant's negligence but rather due to the plaintiff's own actions, which contributed to the accident. The court held that the plaintiff was partially responsible for the incident, reducing the defendant's liability. Consequently, the court dismissed the plaintiff's application and made no order as to costs.

Orders

Orders of the court

That the application is dismissed.

That there be no order as to costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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