Inspector Darren Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987

Inspector Darren Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987

Section 728 of the Workplace Relations Act 1996 as introduced by Work Choices cannot apply to pre-reform awards; thus, claims against directors for conduct occurring before Work Choices commenced were without reasonable cause and costs follow. Claims relating to compensation for breaches more than 6 years prior to proceedings could not succeed due to statutory limitation, but imposition of penalties for a course of conduct may be arguable and not unreasonable.

Parties
Applicant: Inspector Darren Lang; First Respondent: ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre; Second Respondent: Mr Gunasena Athugalage; Third Respondent: Mrs Thilaka Athugalage
Jurisdiction
Australia
Judgment Date
04 September 2009
Procedural Posture
Industrial/civil Penalty Proceedings / Judgment on Costs and Appropriateness of Orders Following Settlement
Outcome
Costs order in favour of respondents; prior orders and penalties by consent remain undisturbed.
Legal Topics
Workplace Relations, Award Breaches, Penalties Under Workplace Relations Act, Costs in Industrial Cases, Transitional Provisions
Employment Law Industrial Law Workplace Relations Award Breaches Penalties Under Workplace Relations Act Costs in Industrial Cases Transitional Provisions

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Parties

Inspector Darren Lang

Applicant

ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre

First Respondent

Mr Gunasena Athugalage

Second Respondent

Mrs Thilaka Athugalage

Third Respondent

Procedural Posture

Industrial/civil Penalty Proceedings / Judgment on Costs and Appropriateness of Orders Following Settlement

Legal Issues

  1. 1 Whether directors can be joined as respondents for contraventions prior to relevant statutory amendments
  2. 2 Appropriateness of making declarations and orders by consent
  3. 3 Whether claims relating to events more than 6 years prior to commencement of proceedings are statute-barred

Ratio Decidendi

Section 728 of the Workplace Relations Act 1996 as introduced by Work Choices cannot apply to pre-reform awards; thus, claims against directors for conduct occurring before Work Choices commenced were without reasonable cause and costs follow. Claims relating to compensation for breaches more than 6 years prior to proceedings could not succeed due to statutory limitation, but imposition of penalties for a course of conduct may be arguable and not unreasonable.

Court Disposition

Costs order in favour of respondents; prior orders and penalties by consent remain undisturbed.

Orders

  • Applicant to pay the costs of the second and third respondents.
  • Applicant to pay the costs of the first respondent insofar as it relates to claims for compensation arising prior to 4 June 2002.