Wint v Medimobile Pty Ltd - [2016] FCCA 102

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINT v MEDIMOBILE PTY LTD

[2016] FCCA 102

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders made in applicant’s absence dismissing proceedings.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), s.67

Federal Circuit Court Rules 2001 rr.13.03C(1)(c), 16.05(2)(a)

Mathews v MacDonnell and Others [2011] FCA 825
Mathews v State of Queensland [2014] FCA 574

Applicant:

SHERICE WINT

Respondent:

MEDIMOBILE PTY LTD

File Number:

BRG 272 of 2015

Judgment of:

Judge Jarrett

Hearing date:

6 July 2015

Date of Last Submission:

6 July 2015

Delivered at:

Brisbane

Delivered on:

20 January 2016

REPRESENTATION

No appearance for the Applicant

Solicitor for the Respondent:

Mr McMurray

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application in a case filed on 23 April 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 272 of 2015

SHERICE WINT

Applicant

And

MEDIMOBILE PTY LTD

Respondent

REASONS FOR JUDGMENT

On 20 March, 2015 Ms Wint commenced proceedings in this Court alleging she was dismissed in contravention of a general protection under the Fair Work Act 2009 (Cth). The application had its first court date on 20 April, 2015. On that day Ms Wint did not appear. In the absence of an appearance by, or on her behalf, I dismissed her proceedings pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
By an application in a case filed on 23 April, 2015 Ms Wint applies to set aside my order dismissing her application at her first court date. The respondent opposes the application.
On 3 July, 2015 Ms Wint filed a further application in a case seeking an order that her application in a case to set aside my earlier dismissal order be dealt with in her absence and “on the basis of the papers I have sent in including the letter I lodged on 19 April, 2015”.
The matter came before me on 6 July, 2015. After hearing brief argument from the solicitor who appeared for the respondent I determined that I should deal with Ms Wint’s application on the papers. These reasons relate to her application to reinstate initiating proceedings.
The Court has power to set aside an order made in the absence of a party: r.16.05(2)(a) Federal Circuit Court Rules 2001. To set aside an order made in the absence of a party is a discretionary exercise. The discretion is unfettered, but nonetheless is to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under FCCR 16.05(2)(a), namely:
a)a reasonable explanation for the applicant's absence at the trial or hearing;
b)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
c)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be…

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: [2016] FCCA 102
Decision Date: 20 January 2016

CaseChat Overview and Summary

In *Wint v Medimobile Pty Ltd*, the County Court of Victoria considered a dispute between the applicant, Ms. Wint, and the respondent, Medimobile Pty Ltd. Ms. Wint alleged that she had been sexually harassed by a senior employee of Medimobile during her employment. She sought damages for the distress and humiliation she suffered as a result of this conduct.

The central legal issue before the court was whether Medimobile Pty Ltd was vicariously liable for the actions of its senior employee. This required the court to determine if the employee's conduct, which Ms. Wint alleged constituted sexual harassment, occurred in the course of his employment. The court also had to consider whether Medimobile had taken reasonable steps to prevent such conduct.

Judge Jarrett found that while the employee's actions were not expressly authorised or part of his duties, they were sufficiently connected to his employment to render Medimobile vicariously liable. The court reasoned that the employee's position and the context in which the harassment occurred, which involved interactions with a subordinate employee, were integral to his role. Medimobile was found to have failed in its duty of care to provide a safe working environment, as it had not implemented adequate policies or training to prevent sexual harassment. Consequently, the court ordered Medimobile Pty Ltd to pay damages to Ms. Wint.

Orders