Federal Court of Australia
Federal Court of Australia
Touhey v Salini Australia Pty Ltd [2022] FCA 55 File number: WAD 165 of 2021
Judgment of: BANKS-SMITH J
Date of judgment: 4 February 2022
Catchwords: INDUSTRIAL LAW - whether employee entitled to payment of untaken accrued annual leave entitlements for period when workers' compensation payments received - statutory construction - whether 'permitted' by s 80 of the Workers' Compensation and Injury Management Act 1981 (WA) to accrue annual leave - whether appropriate to make declarations as to entitlements - declarations made PRACTICE AND PROCEDURE - where respondent filed submitting notice - whether deemed admissions or whether court required to enquire in context of declaratory relief - whether respondent in position of contradictor - whether respondent in default for purpose of any default judgment
Legislation: Fair Work Act 2009 (Cth) ss 22, 44, 87, 90, 130 Federal Court of Australia Act 1976 (Cth) s 21 Federal Court Rules 2011 (Cth) rr 1.32, 5.23, 12.01, 22.07 Workers Compensation Act 1987 (NSW) s 49 Workers' Compensation and Injury Management Act 1981 (WA) ss 3, 80 Uniform Civil Procedure Rules 2005 (NSW) r 6.11
Cases cited: Anglican Care v NSW Nurses and Midwives' Association [2015] FCAFC 81; (2015) 231 FCR 316 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513 Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 Australian Competition and Consumer Commission v Panthera Finance Pty Ltd [2020] FCA 340 Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100; (2015) 231 FCR 298 Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; (2020) 280 FCR 265 EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 IPC Global Pty Ltd v Pavetest Pty Ltd (No 2) [2016] FCA 1332 Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317; (2014) 86 NSWLR 645 NSW Nurses and Midwives' Association v Anglican Care [2014] FCCA 2580 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Trewin v Comcare (1998) 84 FCR 171 Trust Co of Australia Ltd v Perpetual Trustees (WA) Ltd (No 2) (1995) 36 NSWLR 654
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