Alfred v Wakelin (No 3) [2009] FCA 224

Alfred v Wakelin (No 3) [2009] FCA 224

The Pre-Start Forms and leave records showed only that Mr O'Connor was on leave and did not sign in for work on 10 November 2005; they did not conclusively prove he was absent from the meeting, particularly where three witnesses, including the AWU's witness, placed him there and the case had been pleaded, evidenced and submitted on that basis. There was therefore no demonstrated misapprehension of fact and it would be contrary to the interests of justice to vary or set aside the judgment and orders. Although the motion was misconceived, the circumstances fell short of establishing an unreasonable omission under s 824, so no costs order should be made.

Jurisdiction
Australia
Judgment Date
13 March 2009
Procedural Posture
Notice of Motion to Vary and Set Aside Judgment and Orders / Post Judgment Motion Following Alfred V Wakelin (no 2) [2008] FCA 1543; Issue of Penalty Had Been Adjourned
Outcome
Notice of motion dismissed; no order as to costs.
Legal Topics
['application to Vary or Set Aside Judgment and Orders' 'misapprehension of Facts' 'costs in Industrial Proceedings' 'unreasonable Omission']
['practice and Procedure' 'industrial Law'] ['application to Vary or Set Aside Judgment and Orders' 'misapprehension of Facts' 'costs in Industrial Proceedings' 'unreasonable Omission']

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Procedural Posture

Notice of Motion to Vary and Set Aside Judgment and Orders / Post Judgment Motion Following Alfred V Wakelin (no 2) [2008] FCA 1543; Issue of Penalty Had Been Adjourned

Legal Issues

  1. 1 ["Whether the Court should vary or set aside its 17 October 2008 judgment and orders on the basis of an alleged misapprehension that Mr O'Connor was present at the Lake Cowal gold mine on 10 November 2005." "Whether the sixth and seventh respondents' failure to withdraw the notice of motion was an unreasonable omission warranting a costs order under s 824 of the Workplace Relations Act."]

Ratio Decidendi

The Pre-Start Forms and leave records showed only that Mr O'Connor was on leave and did not sign in for work on 10 November 2005; they did not conclusively prove he was absent from the meeting, particularly where three witnesses, including the AWU's witness, placed him there and the case had been pleaded, evidenced and submitted on that basis. There was therefore no demonstrated misapprehension of fact and it would be contrary to the interests of justice to vary or set aside the judgment and orders. Although the motion was misconceived, the circumstances fell short of establishing an unreasonable omission under s 824, so no costs order should be made.

Court Disposition

Notice of motion dismissed; no order as to costs.

Orders

  • ['The notice of motion filed by the sixth and seventh respondents on 18 February 2009 is dismissed.' 'Each party is to pay its own costs of the notice of motion.']