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…
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- Case
- [2011] FMCA 433
- Decision Date
CaseChat Overview and Summary
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
1.
That the application is dismissed.
2.
That there be no order as to costs.
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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