Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567

Federal Court of Australia

Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567 Appeal from: Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56

File number(s): NSD 1366 of 2021

Judgment of: BURLEY J

Date of judgment: 1 June 2023

Catchwords: DAMAGES – assessment of damages for economic loss – damages for economic loss awarded

Cases cited: Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 2

Date of hearing: 27 October 2022

Counsel for the Appellant: Ms K Edwards with Mr S McIntosh

Solicitor for the Appellant: Hammond Nguyen Turnbull

Counsel for the Respondent: Mr A B Gotting

Solicitor for the Respondent: Kingston Reid

ORDERS NSD 1366 of 2021

BETWEEN: ALEX GUTIERREZ Appellant

AND: MUR SHIPPING AUSTRALIA PTY LIMITED ABN 72 105 855 635 Respondent

order made by: BURLEY J DATE OF ORDER: 1 JUNE 2023

THE COURT ORDERS THAT:

1. The Respondent pay the Appellant $142,215.56 for economic loss plus interest. 2. Orders 4 to 7 of the orders made on 4 May 2023 be vacated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J: 1 On 4 May 2023, I delivered my reasons for judgment in Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399. Paragraph [103] of those reasons provided: I was not addressed during the course of the appeal in relation to the calculation of this amount, although I was supplied with Mr Gutierrez's submissions before the primary judge. Attachment A to those submissions sets out the calculation in detail. In its submissions before the primary judge MUR opposed the calculation of damages on the following five bases: (1) That Mr Gutierrez brought about the loss because he chose to terminate his contract; (2) Alternatively, he is not entitled to any more than 5 weeks' pay, because his contract of employment provides that this is the notice that MUR was required to give; (3) That Mr Gutierrez is not entitled to any allowance for CPI increases as he had no contractual entitlement to a salary increase; (4) That Mr Gutierrez is not entitled to a bonus (calculated to be $4,551.72) as he had no contractual entitlement to a bonus; and (5) That Mr Gutierrez is not entitled to superannuation payments calculated on his total remuneration but only his basic salary. Bases (1) and (2) may be set aside because the analysis of economic loss in the present case does not depend on a contractual analysis but arises as a matter of causation from the Age Discrimination as Found. However, I have not heard argument addressing (3)-(5). My present view is that the economic loss awarded to Mr Gutierrez should be $142,215.56 plus interest. However, I will make directions for the parties to provide short written submissions on the subject before concluding on the amount. 2 The parties have indicated that they have conferred and that, in the interests of time, costs and the Court's resources, they will not be making submissions on the issue of the appellant's economic loss but are content for orders to be made confirming the provisional view expressed in [103]. Accordingly, today I make an order that the respondent pay the appellant $142,215.56 for economic loss and that orders 4 to 7 made on 4 May 2023 concerning a procedure for written submissions on the assessment of damages for economic loss be vacated. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.