Workplace Ombudsman v AM Retail Solutions & Anor - [2009] FMCA 1046

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WORKPLACE OMBUDSMAN v AM RETAIL SOLUTIONS & ANOR

[2009] FMCA 1046

INDUSTRIAL LAW – Contravention of employee entitlements provisions – case management of application for penalties – delays arising from referral for mediation and non-compliance with time-table – whether binding agreement for agreed statement of facts was reached at mediation – respondent’s application for specific performance not pursued – interlocutory application dismissed – failure adequately to instruct legal representatives – costs resulting from unreasonable act or omission – award to applicant of costs of preparing for hearing.

Corporations Act 2001 (Cth), s.471B
Federal Magistrates Act (Cth), s.34
Workplace Relations Act 1996 (Cth), ss.719, 728, 824

Armstrong v Healthcare Recruiting [2008] FMCA 357
Australian and New Zealand Banking Group Ltd v Ciavarella [2002] NSWSC 1186
Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1
Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336
Donaldson Coal Pty Ltd v Pacific National (NSW) Ltd [2007] NSWSC 1446
Johnston v ANZ Banking Group Ltd & Ors [2004] NSWSC 363
Masters v Cameron (1954) 91 CLR 353

Applicant:

WORKPLACE OMBUDSMAN

First Respondent:

AM RETAIL SOLUTIONS
ACN 103 251 038

Second Respondent:

ADIL MAGAR

File Number:

SYG 3333 of 2008

Judgment of:

Smith FM

Hearing date:

20 October 2009

Delivered at:

Sydney

Delivered on:

20 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr P Newall

Solicitors for the Applicant:

Fisher Cartwright Berriman

Counsel for the Respondents:

Mr V Dragomirovic

Solicitors for the Respondents:

Law Partners

ORDERS

The second respondent’s application in a case filed on 28 August 2009 is dismissed.
Pursuant to s.824(2) of the Workplace Relations Act 1996, the second respondent must pay the applicant’s costs incurred in relation to its preparation for and attendance at today’s hearing of that application, as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
The proceedings in relation to the first respondent are adjourned for further directions on 16 March 2010 at 10.15.
The second respondent must file and serve a defence to the statement of claim no later than 17 November 2009.
The applicant’s affidavits must be filed no later than 14 January 2010.
The second respondent’s affidavits must be filed no later than 11 February 2010.
Any affidavits in reply must be filed no later than 4 March 2010.
If the second respondent fails to comply with orders 4 and 6, then he shall not be permitted to lead any evidence in chief in the proceedings, and the hearing will proceed on an undefended basis in relation to all issues of contravention.
If any party is in default in relation to the above time-table for more than 4 working days, the other party must immediately request the Associate to appoint a directions-hearing. Alternatively, the parties may forward to the Associate consent orders signed by all parties, which varies the timetable except in relation to listings.
Any party may request that the proceeding be listed…

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: [2009] FMCA 1046
Decision Date: 20 October 2009

CaseChat Overview and Summary

The Workplace Ombudsman filed an application against AM Retail Solutions and its director, seeking penalties under the Workplace Relations Act 1996. The dispute arose from allegations of non-compliance with workplace laws, including underpayment of wages and failure to provide necessary documentation. The matter was heard in the Federal Circuit Court of Australia, presided over by Associate Judge M.P. Connolly.

The court was tasked with deciding several legal issues, including whether the second respondent had failed to comply with the requirements of the Workplace Relations Act. The primary focus was on whether the second respondent could lead evidence in chief if they did not file a defence within the specified timeframe. The court also needed to determine the procedural steps to be taken in the case, including the scheduling of further directions and the hearing of the matter.

In delivering the decision, the court dismissed the second respondent's application and ordered that they pay the costs incurred by the applicant. The court set out a detailed timetable for the filing of affidavits and the service of a defence, with specific consequences if the second respondent failed to meet these deadlines. The court also outlined the steps for further directions and the final hearing of the matter, providing a clear path forward for the proceedings.

The final orders included the dismissal of the second respondent's application, the imposition of costs on the second respondent, and a detailed timetable for the filing of documents and the hearing of the matter. The court scheduled a pre-hearing directions hearing and set a date for the final hearing, ensuring that all parties were aware of the procedural requirements moving forward.

Orders

Orders of the court

The second respondent’s application in a case filed on 28 August 2009 is dismissed.

Pursuant to s.824(2) of the Workplace Relations Act 1996, the second respondent must pay the applicant’s costs incurred in relation to its preparation for and attendance at today’s hearing of that application, as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.

The proceedings in relation to the first respondent are adjourned for further directions on 16 March 2010 at 10.15.

The second respondent must file and serve a defence to the statement of claim no later than 17 November 2009.

The applicant’s affidavits must be filed no later than 14 January 2010.

The second respondent’s affidavits must be filed no later than 11 February 2010.

Any affidavits in reply must be filed no later than 4 March 2010.

If the second respondent fails to comply with orders 4 and 6, then he shall not be permitted to lead any evidence in chief in the proceedings, and the hearing will proceed on an undefended basis in relation to all issues of contravention.

If any party is in default in relation to the above time-table for more than 4 working days, the other party must immediately request the Associate to appoint a directions-hearing. Alternatively, the parties may forward to the Associate consent orders signed by all parties, which varies the timetable except in relation to listings.

10.

Any party may request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 5 working days notice to the other parties. The appointment shall be obtained from the Associate on 9377 5528.

11.

The proceeding is listed for pre-hearing directions on 8 March 2010 at 9.30am. The parties must forward by email to the Associate on the preceding day short minutes of any proposed directions preparatory for a final hearing.

12.

The proceedings in relation to the second respondent is listed for hearing on all issues on 16 March 2010 at 10.15am, 3 days allowed.

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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