Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697

Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697

Leave to appeal was warranted because Heiko Constructions raised sufficiently arguable and important issues about whether the Federal Circuit Court could find a contravention of s 348 of the Fair Work Act 2009 (Cth) where that contravention had not been pleaded after strikeout and no formal amendment was made, and about whether any amendment for variance or finding after the close of evidence was procedurally fair. The declaration was treated as interlocutory because penalty and compensation remained unresolved, so leave was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Jurisdiction
Australia
Judgment Date
14 February 2020
Procedural Posture
Application for Leave to Appeal From Orders of the Federal Circuit Court of Australia in Fair Work Civil Penalty Proceedings / Leave to Appeal Granted; Stay Application Adjourned
Outcome
Application for leave to appeal granted; application for stay adjourned to a date to be fixed; no order as to costs on the leave application.
Legal Topics
['fair Work Act Civil Penalty Proceedings' 'contravention of S 348 of the Fair Work Act 2009 (cth)' 'leave to Appeal' 'interlocutory Orders' 'procedural Fairness' 'amendment for Variance' 'stay of Proceedings']
['employment and Industrial Relations' 'practice and Procedure'] ['fair Work Act Civil Penalty Proceedings' 'contravention of S 348 of the Fair Work Act 2009 (cth)' 'leave to Appeal' 'interlocutory Orders' 'procedural Fairness' 'amendment for Variance' 'stay of Proceedings']

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Procedural Posture

Application for Leave to Appeal From Orders of the Federal Circuit Court of Australia in Fair Work Civil Penalty Proceedings / Leave to Appeal Granted; Stay Application Adjourned

Legal Issues

  1. 1 ["Whether the Federal Circuit Court's declaration of contravention was an interlocutory order requiring leave to appeal." 'Whether it was arguable that the Federal Circuit Court could not find a contravention of s 348 of the Fair Work Act 2009 (Cth) where the allegation raising s 348 had been struck out and no formal amendment had been made.' 'Whether it was arguable that procedural fairness was denied by finding a s 348 contravention after the close of evidence without giving Heiko Constructions an opportunity to meet that case.' 'Whether the stay application should be determined immediately or adjourned.']

Ratio Decidendi

Leave to appeal was warranted because Heiko Constructions raised sufficiently arguable and important issues about whether the Federal Circuit Court could find a contravention of s 348 of the Fair Work Act 2009 (Cth) where that contravention had not been pleaded after strikeout and no formal amendment was made, and about whether any amendment for variance or finding after the close of evidence was procedurally fair. The declaration was treated as interlocutory because penalty and compensation remained unresolved, so leave was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Court Disposition

Application for leave to appeal granted; application for stay adjourned to a date to be fixed; no order as to costs on the leave application.

Orders

  • ["Save for paragraphs 1, 2, 3, 4, 5, 26, 27, 28, 29, 36 and 37, the respondent's affidavit filed 14 February 2020 be read as if the remaining paragraphs were struck out." "No person, other than a party to the proceedings or a lawyer acting as a representative of a party to the proceedings or a Judge or officer of...