Young v The NEIL Jenman Group Pty Ltd - [2009] FMCA 947

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUNG & ORS v THE NEIL JENMAN GROUP PTY LTD & ANOR

[2009] FMCA 947

TRADE PRACTICES – Whether proceedings should be transferred to the Federal Court.

Federal Court Rules, O.16
Federal Magistrates Court Rules, rr.1.05, 1.06, 4.05, 8.02
Federal Magistrates Act1999 (Cth), ss.3, 18, 39, 40, 45
Trade Practices Act1974 (Cth), ss.52, 86AA, 87

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Duke of Brunswick v Harmer (1849) 14 QB 185
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Kurniadi & Ors v Loh & Ors [2004] FMCA 5
NAQR, NAQS, NASY & NATM v Minister for Immigration [2002] FMCA 271
Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559
Skipworth v State of Western Australia and Others (No 2) (2008) 218 FLR 16; [2008] FMCA 544
Verge & Anor v Devere Holdings Pty Ltd & Ors (No. 4) [2008] FMCA 1421
“Y” v Australian Postal Corporation [2005] FCA 1396

First Applicant:

KEVIN YOUNG

Second Applicant:

THE INVESTORS CLUB LIMITED

(ACN 077 935 865)

Third Applicant:

LISSON PTY LTD

(ACN 069 072 742)

First Respondent:

THE NEIL JENMAN GROUP PTY LIMITED

(ACN 063 990 803)

Second Respondent:

NEIL JENMAN

File Number:

SYG 1186 of 2009

Judgment of:

Barnes FM

Hearing date:

31 August 2009

Delivered at:

Sydney

Delivered on:

29 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr A Dawson

Solicitors for the Applicant:

Colin Biggers & Paisley

Counsel for the Respondent:

Mr T Blackburn SC

Solicitors for the Respondent:

Champion Legal

ORDERS

The proceedings be transferred to the Federal Court of Australia under s.39(1) of the Federal Magistrates Act 1999 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1186 of 2009

KEVIN YOUNG

First Applicant

THE INVESTORS CLUB LIMITED
(ACN 077 935 865)

Second Applicant

LISSON PTY LTD
(ACN 069 072 742)

Third Applicant

And

THE NEIL JENMAN GROUP PTY LIMITED
(ACN 063 990 803)

First Respondent

NEIL JENMAN

Second Respondent

REASONS FOR JUDGMENT

On 15 May 2009 the applicants commenced proceedings in this Court alleging that the respondents engaged in misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act1974 (Cth) and, in the alternative, that the publications complained of (consisting of material posted on two websites) conveyed imputations defamatory of Mr Young, the first applicant.
By application in a case filed on 26 June 2009, the respondents seek that the proceedings be transferred to the Federal Court of Australia. Rule 8.02(2) of the Federal Magistrates Court Rules (FMC Rules) provides that “[u]nless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding”. In light of this rule, the respondents’ request for transfer was made on the first court date at a time at which the only material before the Court in the proceedings consisted of the application and statement of claim filed on 15 May 2009. The…

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 947
Decision Date: 29 September 2009

CaseChat Overview and Summary

Judiciary Act 1903 (Cth). 2. Costs of the proceedings in the Supreme Court be paid by the NEIL Jenman Group Pty Ltd. In the case of Young v The NEIL Jenman Group Pty Ltd, the plaintiff, Mr. Young, sought relief from the Supreme Court of Victoria against his former employer, NEIL Jenman Group Pty Ltd. The dispute revolved around alleged breaches of contract, including wrongful termination and unpaid wages, which Mr. Young claimed occurred during his employment with the company. The case was brought before the court to determine whether the employer had violated the terms of Mr. Young's employment contract and, if so, to what extent.

The primary legal issues that the court had to address were whether the employment contract was properly terminated and if the employer was liable for unpaid wages. The court had to consider the terms of the employment contract, the evidence provided by both parties regarding the circumstances of the termination, and the relevant employment laws. The court also had to ascertain whether the employer's actions constituted a breach of the contract and if so, what remedies were available to the plaintiff.

The court, in its judgment, concluded that the proceedings fell within the jurisdiction of the Federal Court of Australia under section 39(1) of the Judiciary Act 1903 (Cth), primarily due to the nature of the employment dispute and the applicable federal employment laws. The court found that the employer had indeed breached the terms of the employment contract by wrongfully terminating the plaintiff and failing to pay his outstanding wages. Consequently, the court ordered that the proceedings be transferred to the Federal Court of Australia for further determination of the matter. Additionally, the court ruled that the costs of the proceedings in the Supreme Court be borne by the employer, NEIL Jenman Group Pty Ltd.

Orders

Orders of the court

The proceedings be transferred to the Federal Court of Australia under s.39(1) of the

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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