Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171 File number(s): WAD 131 of 2017
Judge(s): GILMOUR J
Date of judgment: 28 February 2018
Catchwords: PRACTICE AND PROCEDURE – summary judgment application – whether the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding INDUSTRIAL LAW – adverse action – whether a former employee of the first respondent was constructively dismissed through the respondents' conduct or course of conduct – consideration of requirements of constructive dismissal claim – Fair Work Act 2009 (Cth) ('FW Act') s 351 COSTS – whether costs should be awarded in a matter arising under the FW Act pursuant to s 570 – whether the claim has no real prospects of success – consideration of the Court's discretion to award costs other than on a party and party basis – whether applicant should pay the respondents' costs on an indemnity basis Held: application allowed with costs.
Legislation: Fair Work Act 2009 (Cth) ss 12(1), 342(1) item 1, 351, 386 Federal Court of Australia Act 1976 (Cth) ss 31A(2), 37N(4), 37M(1), 43(2), 43(3)(g) Workplace Relations Act 1996 (Cth) Federal Court Rules 2011 (Cth) r 26.01(1)(a)
Cases cited: Allison v Bega Valley Council (1995) 63 IR 68 Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 Council of Kangan Batman Institute of Technology and Further Education v AIRC (2006) 156 FCR 275 Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 George v Fletcher (Trustee) [2010] FCAFC 53 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 R v Prince Alfred College (1979) 46 SAIR 598 Sheffield v Oxford Controls Co Ltd (1979) IRLR 133 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 White Industries Australia Ltd v Cmr of Taxation (2007) 160 FCR 298
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