Recent cases in labour law — November 2023

Welcome to recent cases in labour law — November 2023:

• The Federal Court of Australia (Snaden J) has held that an employer, which had failed to make superannuation contributions to an employee, was liable to pay as loss of opportunity compensation 80 per cent of the value of the benefit of a total and permanent disability insurance policy, in circumstances where the failure to make such contributions had resulted in the policy ceasing to cover the employee (at [58]-[60]). In doing so, the Court also usefully summarised the legal principles relevant to awards of loss of opportunity compensation pursuant to section 545(2)(b) of the Fair Work Act 2009 (Cth) (at [31]-[34]). (Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311)
• The Full Court of the Federal Court of Australia (Wheelahan, Anderson, and Jackman JJ) has usefully summarised the approach to be taken to determining if a subpoena should be set aside, holding (among other things) that the subpoena would not be aside if was shown that “the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive”; or “there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case”; or “the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist” (at [38]). (Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185)
• The New South Wales District Court (Scotting DCJ) has imposed a “court-ordered WHS undertaking” pursuant to section 239 of the Work Health and Safety Act 2011 (NSW), and declined to impose any fine, on an individual defendant to a work health and safety prosecution, observing that a fine would “divert money away from him engaging in the psychiatric care that he needs” (at [63]-[69]). (SafeWork NSW v Woods [2023] NSWDC 510)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge Forbes) has helpfully summarised the legal principles relevant to determinising the true identity of an person’s employer, in circumstances where there is a dispute as to whether an individual or one of several companies had engaged the person as an employee (at [273]-[294]). (Alvarez Nino v Kuksal (No 4) [2023] FedCFamC2G 1051)
• The Federal Court of Australia (Lee J) has helpfully summarised the legal principles relevant to the Court’s power to limit the cross-examination of a witness, observing that there is no “unfettered right to cross-examine a witness” (at [7]-[13]). (Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge Given) has usefully set out the legal principles relevant to granting an application for security for costs (at [13]-[18]), in the context such application being made in proceedings affected by section 570 of the Fair Work Act 2009 (Cth) (at [23]-[27]). (Khoury v Macquarie Air Pty Ltd [2023] FedCFamC2G 992)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge Symons) has observed that discovery is the “exception and not the rule in the procedure in [the] Court” (at [32]), having regard to the authorities that governed the predecessor to section 176 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (at [30]-[31]). (Ponte v Greater National Holdings Pty Ltd [2023] FedCFamC2G 1044)
• The Supreme Court of New South Wales (Rees J) has helpfully summarised the legal principles relevant to a transfer of proceedings pursuant to section 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (at [32]-[36]). (Wilkinson v Network Ten Pty Ltd [2023] NSWSC 1438)
• The Supreme Court of New South Wales (Peden J) has helpfully summarised the legal principles relevant to the making of “wasted costs orders” against a legal practitioner pursuant to section 99 of the Civil Procedure Act 2005 (NSW) (at [34]-[41]), and, in so doing, listed some of the circumstances in which such orders had been made by reference to the decided cases (at [42]). (Nahata v Robertson (No 2) [2023] NSWSC 1297)