Lennox v Amcor Limited trading as Amcor Cartonboard (No 2) [2009] FCA 962

FEDERAL COURT OF AUSTRALIA

Lennox v Amcor Limited trading as Amcor Cartonboard (No 2) [2009] FCA 962

PRACTICE AND PROCEDURE – appeal from decision of Federal Magistrate refusing an application seeking an adjournment of trial – consideration of the principles in House v The King (1936) 55 CLR 499 – whether there was a denial of natural justice – failure to hear parties' submissions – parties unable to make submissions on prejudice – both parties favoured the adjournment Held: appeal allowed

Federal Court of Australia Act 1976 (Cth) s 25(1A), s 27 Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 cited Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 distinguished Goldberg v Morrow [2004] FCA 1490 cited House v The King (1936) 55 CLR 499 applied In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 cited Jordan v Smart [1961] NSWR 735 cited Lennox v Amcor Limited trading as Amcor Cartonboard [2009] FCA 959 cited Maxwell v Keun [1928] 1 KB 645 cited Thornberry v R (1995) 69 ALJR 777 cited Trivett v Zoccoli [2002] WASCA 138 cited MARK JASON LENNOX v AMCOR LIMITED TRADING AS AMCOR CARTONBOARD ACN 000 017 372

QUD 209 of 2009 QUD 210 of 2009

COLLIER J

25 AUGUST 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

FAIR WORK DIVISION QUD 209 of 2009

QUD 210 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MARK JASON LENNOX

Appellant

AND: AMCOR LIMITED TRADING AS AMCOR CARTONBOARD ACN 000 017 372

Respondent

JUDGE: COLLIER J

DATE OF ORDER: 25 AUGUST 2009

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeals be allowed. 2. The decision of the Federal Magistrate to refuse the applications to adjourn the trials in the Federal Magistrates Court proceedings BRG649/08 and BRG742/08 be set aside. 3. The decision of the Federal Magistrate to refuse to stay the trials in the Federal Magistrates Court proceedings BRG649/08 and BRG742/08 pending the outcome of these appeals be set aside. 4. The costs of these appeals be costs in the Federal Magistrates Court proceedings BRG649/08 and BRG742/08. 5. In each of the Federal Magistrates Court proceedings BRG649/08 and BRG742/08 by 14 September 2009 each party make discovery on oath in accordance with the following categories: a. the Respondent's personnel file for the Applicant; b. documents purporting to set out or evidence the terms and conditions of employment of the Applicant alleged by the Applicant to have been breached, where the breach has been relied upon by the Applicant; c. documents relating to the Applicant taking sick leave on and after 27 May 2008 and the decision of the Respondent to end the payment of sick pay to the Applicant on about 18 June 2008, including emails, notes and memoranda between managers of the Respondent leading up to the decision; d. the Applicant's sick leave records for the period of his employment with the Respondent; e. documents relating to the decision of the Respondent in September 2008 to refuse to recommence and/or backpay sick leave, including emails, notes and memoranda between managers of the Respondent leading up to the decision; f. documents relating to the Applicant seeking to return to work on 14 October 2008 and the Respondent's decision/s to refuse to allow the Applicant to work or be paid for: i. 14 October 2008; ii. any rostered shift after 14 October 2008; including emails, notes and memoranda between managers of the Respondent leading up to the decision/s. g. documents relating to the Respondent seeking redeployment for the Applicant the Respondent's business, including emails, letters, memoranda and notes of conversations; h. documents relating to the decision to terminate the Applicant's employment on 6 February 2009, including memoranda, emails and minutes or notes of meetings where the termination or possible termination was discussed; i. documents related to the meeting on 6 February 2009 at which the Applicant was terminated, including speaking notes, memoranda or emails before or after the meeting and minutes and/or notes of the meeting. 6. In each of the Federal Magistrates Court proceedings BRG649/08 and BRG742/08 each party shall produce disclosed documents for inspection in accordance with Federal Court Rules by 4.00 pm on 21 September 2009. 7. The trial of Federal Magistrates Court proceedings BRG649/08 and BRG742/08 will be conducted on the basis that the evidence-in-chief of each witness to be called by the parties will be given by affidavit. 8. The witnesses' affidavits in each of Federal Magistrates Court proceedings BRG649/08 and BRG742/08 be exchanged as follows: a. the Applicant file and serve the affidavit of any proposed witness by 19 October 2009; b. the Respondent file and serve the affidavit of any proposed witness by 4 November 2009; and c. the Applicant file and serve any affidavits in reply to the Respondent's affidavits by 13 November 2009. 9. The parties are to exchange outlines of argument 7 days prior to the commencement of the hearing. 10. The proceeding be listed for hearing for 3 days in the Federal Magistrates Court at Brisbane not before 20 November 2009 at a date to be fixed by the Federal Magistrates Court. 11. Either party may apply to the Federal Magistrates Court to amend these directions on three days notice to the other parties to the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA