WINTER v GHD Services Pty Ltd - [2019] FCCA 775

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINTER v GHD SERVICES PTY LTD

[2019] FCCA 775

Catchwords:
INDUSTRIAL LAW – Application for summary dismissal – whether applicant “Australian-based employee” – whether contract of employment formed in Australia – whether law of Australia applied to contract – application dismissed.

Legislation:

Copyright Act 1968 (Cth)

Electronic Transactions Act (1999) (Cth), s.5

Fair Work Act 2009 (Cth), ss.35(2) & (3), 323, 340, 344, 351, and 566

Fair Work Regulations 2009 (Cth), reg.1.15F(4)

Federal Circuit Court Act 1999 (Cth), s.10

Federal Circuit Court Rules 2001 (Cth), rr.13.01 and 13.10

Cases cited:

Burgundy Royale Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173

Cohen v iSOFT Group Pty Ltd (2013) 298 ALR 516
Munjoma v Salvation Army (NSW) Property Trust [2013] FWC 3337
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418

Chitty on Contracts, 33^rd Edition, published by Sweet & Maxwell Ltd, 2018

Applicant:

BRYCE WINTER

Respondent:

GHD SERVICES PTY LTD

File Number:

ADG 435 of 2018

Judgment of:

Judge Heffernan

Hearing date:

29 January 2019

Date of Last Submission:

29 January 2019

Delivered at:

Adelaide

Orders delivered on:

22 March 2019

Reasons delivered on:

28 March 2019

REPRESENTATION

Counsel for the Applicant:

Ms G Walker

Solicitors for the Applicant:

PGC Legal

Counsel for the Respondent:

Mr L Howard

Solicitors for the Respondent:

Price Waterhouse Coopers

UPON NOTING THAT:

(a)The judgment, reserved on 29 January 2019, will be published at a later date from chambers; and
(b)The matter has been referred to mediation on 26 March 2019 at 9.30am

ORDERS

The respondent’s Application in a Case filed on 23 July 2018 is dismissed.
There is no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 435 of 2018

BRYCE WINTER

Applicant

And

GHD SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

This is an Application in a Case made by the respondent, GHD Services Pty Ltd. The application seeks the following orders:
“(1) Pursuant to rule 13.01 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the proceeding be summarily dismissed.
(2) Further or in the alternative, and pursuant to rule 13.10 of the Rules, any residue of the proceeding be summarily dismissed, or alternatively, stayed.
(3) The applicant to pay the respondent’s costs of and incidental to and occasioned by the proceeding (including this Application in a Case).”
The applicant invokes the original jurisdiction of the Court conferred by s.566 of the Fair Work Act 2009 (Cth) (‘the FW Act’).[1] The Initiating Application in this matter alleges breaches of the FW Act, specifically a breach of s.323, relating to the method and frequency of payment; the protection against adverse action associated with the existence, exercise or proposed exercise of a workplace right encompassed in s.340; a breach of s.344, which prohibits exerting undue influence or undue pressure on an employee; and a breach…

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.

Continue reading WINTER v GHD Services Pty Ltd

Details

AGLC: WINTER v GHD Services Pty Ltd [2019] FCCA 775
Case: [2019] FCCA 775
Decision Date: 29 January 2019

CaseChat Overview and Summary

The applicant, Winter, sought to bring a claim under the Fair Work Act 2009 (Cth) against GHD Services Pty Ltd. The central dispute concerned whether Winter qualified as an "Australian-based employee" for the purposes of the Act. GHD Services Pty Ltd applied for summary dismissal of Winter's application, arguing that the preconditions for the Fair Work Act to apply were not met. The matter came before Judge Heffernan in the Federal Court of Australia.

The primary legal issues before the Court were whether Winter's contract of employment was formed in Australia and whether the law of Australia applied to that contract. These questions were critical to determining whether Winter could be considered an "Australian-based employee" and therefore entitled to bring proceedings under the Fair Work Act.

Judge Heffernan considered the principles governing the formation of contracts and the proper law of contracts. The Court found that the evidence did not establish that the contract of employment was formed in Australia. Furthermore, the Court determined that the law of Australia did not apply to the contract. Consequently, Winter did not meet the definition of an "Australian-based employee" as required by the Fair Work Act. The application for summary dismissal was therefore dismissed.

Orders