Rangi v Kmart Australia Ltd

• Jurisdiction: Australia Federal only
• Judge: STEWARD J
• Judgment Date: 01 November 2019
• Neutral Citation: [2019] FCA 1778
• Date: 01 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Rangi v Kmart Australia Ltd [2019] FCA 1778

Appeal from:	Application for leave to appeal: Rangi v Kmart Australia Ltd [2018] FCCA 2040 and Rangi v K-Mart Australia Ltd (No.2) [2018] FCCA 3622
File numbers:	VID 949 of 2018 VID 1618 of 2018
Judge:	STEWARD J
Date of judgment:	1 November 2019
Catchwords:	INDUSTRIAL LAW – applications for leave to appeal – where primary judge gave summary judgment in a proceeding involving adverse action claims – where primary judge made costs order pursuant to s 570 of the Fair Work Act 2009 (Cth) – whether the decisions are attended by sufficient doubt – whether the alleged failures to promote altered the position of the employee to the employee’s prejudice within the meaning of item 1(c) of s 342(1) of the Fair Work Act 2009 (Cth) – whether the decision to order costs warrants reconsideration
Legislation:	Fair Work Act 2009 (Cth) ss 340, 341, 342, 361, 570 Federal Circuit Court of Australia Act 1999 (Cth) s 17A Federal Court of Australia Act 1976 (Cth) s 24 Workplace Relations Act 1996 (Cth) s 298K (repealed) Limitation of Actions Act 1958 (Vic) s 5
Cases cited:	Blair v Australian Motor Industries Ltd (1982) 3 IR 176 Childs v Metropolitan Transport Trust (1982) 29 AILR 24 Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; (2006) 157 IR 470 Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Ex parte Bucknell (1936) 56 CLR 221 House v The King (1936) 55 CLR 499 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 Rowland v Alfred Health [2014] FCA 2 Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122
Date of hearing:	28 August 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment and Industrial Relations
Category:	Catchwords
Number of paragraphs:	54
Solicitor for the Applicant:	Mr Y Rangi of Rangi Lawyers
Counsel for the Respondent:	Mr M McKenney
Solicitor for the Respondent:	Landers & Rogers

ORDERS

		VID 949 of 2018
BETWEEN:	YUDHVIR RANGI Applicant
AND:	KMART AUSTRALIA LTD Respondent

		VID 1618 of 2018
BETWEEN:	YUDHVIR RANGI Applicant
AND:	KMART AUSTRALIA LTD Respondent

JUDGE:	STEWARD J
DATE OF ORDER:	1 NOVEMBER 2019

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The parties are to confer on the issue of costs in respect of proceedings VID949/2018 and VID1618/2018 and within 14 days hereof they are to file agreed orders or, if no agreement is reached, submissions of no more than two pages in length.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

1. In 2017, Mr Rangi filed an application in the Fair Work Division of the Federal Circuit Court alleging that his (now erstwhile) employer, Kmart Australia Ltd (“Kmart”), had contravened s 340 of the Fair Work Act 2009 (Cth) (the “FW Act”). Subsequently, he also alleged that Kmart had breached an employment contract between the parties. He sought orders for a promotion, compensation for loss of earnings, and pecuniary penalties.

2. Kmart sought summary dismissal of the proceeding and a costs order pursuant to s 570 of the FW Act. The learned primary judge gave summary judgment for Kmart against Mr Rangi pursuant to s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) on the basis that Mr Rangi had no reasonable prospect of successfully prosecuting the proceeding. Her Honour also ordered Mr Rangi to pay Kmart’s costs pursuant to s 570 fixed in the sum of $13,192.

3. Mr Rangi now seeks leave to appeal both the primary judge’s summary dismissal of his application and her Honour’s order as to costs. For the reasons that follow, I have concluded that Mr Rangi’s applications for leave to appeal should be dismissed.

Relevant Legislative Provisions

4. Section 340 of the FW Act is central to Mr Rangi’s claims against Kmart. It relevantly provides:

Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

…

5. Section 342 of the FW Act relevantly defines the term “adverse action” as follows:

Meaning of adverse action

(1) The following table sets out circumstances in which a person takes adverse action against another person.

…

6. Section 341(1) of the FW Act defines the term “workplace right” as follows:

A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.

7. Section 361 of the FW Act creates a presumption that practically shifts the burden of proof onto a person accused of contravening s 340:

Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

8. Section 570 of the FW Act limits the circumstances in which a Court may order a party to pay costs in relation to a matter...