McConvill & Associates Pty Ltd v Carbone (No 2) [2023] FCA 519

Federal Court of Australia

McConvill & Associates Pty Ltd v Carbone (No 2) [2023] FCA 519 Appeal from: Carbone v James McConvill & Associates [2021] FCCA 661

File number: VID 241 of 2021

Judgment of: SNADEN J

Date of judgment: 25 May 2023

Catchwords: INDUSTRIAL LAW – appeal from the (then) Federal Circuit Court of Australia ("FCCA") – adverse action – where respondent successfully obtained judgment – where matter remitted to FCCA for assessment of damages and penalties – where appellants deemed to have contravened provisions of the Fair Work Act 2009 (Cth) ("FW Act") – whether primary judge erred in finding that respondent would have remained employed for a period of 26 weeks – whether error as alleged was discretionary – whether primary judged erred in assessment of accrued annual leave entitlements – whether primary judge erred in appraising evidence – whether respondent's abandonment of claims to contractual relief was unreasonable – whether primary judge erred in declining to award costs pursuant to s 570 of the FW Act – whether factual or legal error in ordering that penalties be paid directly to the respondent – whether the primary judge failed to consider factors in exercising discretion – error not established – appeal dismissed

Legislation: Competition and Consumer Act 2010 (Cth) sch 2 – s 236 Evidence Act 1995 (Cth) ss 59, 69 Fair Work Act 2009 (Cth) ss 340, 342, 343, 535, 536, 539, 545, 546, 570

Cases cited: Carbone v James McConvill & Associates [2021] FCCA 661 Carbone v James McConvill and Associates Pty Ltd [2019] FCA 1305 Carbone v James McConvill and Associates Pty Ltd (No 2) [2019] FCA 1594 House v The King (1936) 55 CLR 499 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53 Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336