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ACE Insurance Ltd v Trifunovski

ACE Insurance Ltd v Trifunovski

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FEDERAL COURT OF AUSTRALIA
ACE Insurance Ltd v Trifunovski [2011] FCA 1204

Citation: ACE Insurance Ltd v Trifunovski [2011] FCA 1204

Parties: ACE INSURANCE LIMITED v BLAGOJA TRIFUNOVSKI, HERACLEA PTY LIMITED ACN 007 437 372, JOSEPH VIVIL RIENZIE PERIES, SHANE PEREZ, WILLIAM DICINOSKI and FETIE VICKI DICINOSKI

File number: NSD 1860 of 2008

Parties: SHANE PEREZ v ACE INSURANCE LIMITED

File number: NSD 643 of 2009

Parties: RIENZIE PERIES v ACE INSURANCE LIMITED

File number: NSD 644 of 2009

Parties: FETIE DICINOSKI v ACE INSURANCE LIMITED

File number: NSD 646 of 2009

Parties: WILLIAM DICINOSKI v ACE INSURANCE LIMITED

File number: NSD 647 of 2009

Parties: BLAGOJA TRIFUNOVSKI v ACE INSURANCE LIMITED

File number: NSD 649 of 2009

Judge: PERRAM J

Date of judgment: 25 October 2011

Corrigendum: 18 November 2011

Catchwords:
INDUSTRIAL LAW – Employment relationship – existence and nature of relationship – whether insurance agents employees or independent contractors – totality of relationship

EMPLOYMENT LAW – Workplace Relations Act – interaction of Workplace Relations Act 1996 (Cth) with pre-reform Award – claim for annual leave under Workplace Relations Act and award – claim for long service leave under award – Insurance Industry Award 1998

ESTOPPEL – Estoppel by convention – effect of statutory prohibition on estoppel defence

TRADE PRACTCES – Misleading or deceptive conduct – whether statement in contract a representation as to a future matter – statement as to relationship between parties

Legislation:
Acts Interpretation Act 1901 (Cth) s 8
Conciliation and Arbitration Act 1904 (Cth) s 4
Constitution
Fair Trading Act 1987 (NSW) ss 41, 42
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 2
Fair Work Act 2009 (Cth)
Industrial Relations Act 1988 (Cth) s 4
Judiciary Act 1903 (Cth)
Payroll Tax Act 2007 (NSW) ss 6, 11
Superannuation Guarantee (Administration) Act 1992 (Cth)
Taxation Administration Act 1953 (Cth) Sch 1
Trade Practices Act 1974 (Cth)
Workplace Relations Act 1996 (Cth) ss 4, 5, 6, 7, 171, 172, 173, 227, 230, 232, 717, 718, 720

Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Cases cited:
Anonymous (1473) Jenk 132, 145 ER 93 cited
Australian Air Express Pty Ltd v Langford (2005) 147 IR 240 cited
Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 cited
Beckford Nominees Pty Ltd v Shell Company of Australia Ltd (1986) 73 ALR 373 cited
Byrne v Australian Airlines Limited (1995) 185 CLR 410 cited
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 cited
Commissioner of Pay-roll Tax (Victoria) v Mary Kay Cosmetics Pty Ltd [1982] VR 871 cited
Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 cited
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 cited
Jackson v Monadelphous Engineering Associates Pty Ltd [1997] IRCA 281 cited
Johnson v Moreton [1980] AC 37 cited
Josephson v Walker (1914) 18 CLR 691 cited
Keen v Holland [1984] 1 WLR 251 cited
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 1204
Decision Date: 25 October 2011

CaseChat Overview and Summary

ACE Insurance Ltd brought an action against Trifunovski, seeking a declaration that the employment relationship between them was that of principal and independent contractor rather than employer and employee. The dispute arose from Trifunovski’s claim for annual and long service leave under the Workplace Relations Act 1996 (Cth) and the Insurance Industry Award 1998. The case was heard by the Federal Circuit Court, which needed to determine the nature of the relationship between the parties, the applicability of the statutory leave entitlements, and the effect of estoppel in this context.

The primary legal issues were whether Trifunovski was an employee or an independent contractor, the interaction of the Workplace Relations Act 1996 (Cth) with the pre-reform award, and the effect of estoppel by convention. The court also considered whether a statement in the contract regarding the relationship between the parties constituted a representation as to a future matter, which could amount to misleading or deceptive conduct under the Australian Consumer Law.

In its reasoning, the court found that the totality of the relationship between ACE Insurance Ltd and Trifunovski indicated that Trifunovski was an independent contractor rather than an employee. The court held that the statutory prohibition in section 170XG of the Workplace Relations Act 1996 (Cth) precluded an estoppel defence from being raised. Furthermore, the court determined that the statement in the contract did not constitute misleading or deceptive conduct. Consequently, the court found in favour of ACE Insurance Ltd on all counts.

The orders of the court were for the parties to bring in short minutes of order within 14 days and for the matter to be listed for directions at 9:30am on 18 November 2011. The entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties bring in short minutes of order within 14 days.

2. The matter be listed for directions at 9:30am on 18 November 2011.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		ACE Insurance Ltd v Trifunovski [2011] FCA 1204
Parties:		ACE INSURANCE LIMITED v BLAGOJA TRIFUNOVSKI, HERACLEA PTY LIMITED ACN 007 437 372, JOSEPH VIVIL RIENZIE PERIES, SHANE PEREZ, WILLIAM DICINOSKI and FETIE VICKI DICINOSKI
File number:		NSD 1860 of 2008
Parties:		SHANE PEREZ v ACE INSURANCE LIMITED
File number:		NSD 643 of 2009
Parties:		RIENZIE PERIES v ACE INSURANCE LIMITED
File number:		NSD 644 of 2009
Parties:		FETIE DICINOSKI v ACE INSURANCE LIMITED
File number:		NSD 646 of 2009
Parties:		WILLIAM DICINOSKI v ACE INSURANCE LIMITED
File number:		NSD 647 of 2009
Parties:		BLAGOJA TRIFUNOVSKI v ACE INSURANCE LIMITED
File number:		NSD 649 of 2009
Judge:		PERRAM J
Date of judgment:		25 October 2011
Corrigendum:		18 November 2011
Catchwords:		INDUSTRIAL LAW – Employment relationship – existence and nature of relationship – whether insurance agents employees or independent contractors – totality of relationship EMPLOYMENT LAW – Workplace Relations Act – interaction of Workplace Relations Act 1996 (Cth) with pre-reform Award – claim for annual leave under Workplace Relations Act and award – claim for long service leave under award – Insurance Industry Award 1998 ESTOPPEL – Estoppel by convention – effect of statutory prohibition on estoppel defence TRADE PRACTCES – Misleading or deceptive conduct – whether statement in contract a representation as to a future matter – statement as to relationship between parties
Legislation:		Acts Interpretation Act 1901 (Cth) s 8 Conciliation and Arbitration Act 1904 (Cth) s 4 Constitution Fair Trading Act 1987 (NSW) ss 41, 42 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 2 Fair Work Act 2009 (Cth) Industrial Relations Act 1988 (Cth) s 4 Judiciary Act 1903 (Cth) Payroll Tax Act 2007 (NSW) ss 6, 11 Superannuation Guarantee (Administration) Act 1992 (Cth) Taxation Administration Act 1953 (Cth) Sch 1 Trade Practices Act 1974 (Cth) Workplace Relations Act 1996 (Cth) ss 4, 5, 6, 7, 171, 172, 173, 227, 230, 232, 717, 718, 720 Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Cases cited:		Anonymous (1473) Jenk 132, 145 ER 93 cited Australian Air Express Pty Ltd v Langford (2005) 147 IR 240 cited Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 cited Beckford Nominees Pty Ltd v Shell Company of Australia Ltd (1986) 73 ALR 373 cited Byrne v Australian Airlines Limited (1995) 185 CLR 410 cited Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 cited Commissioner of Pay-roll Tax (Victoria) v Mary Kay Cosmetics Pty Ltd [1982] VR 871 cited Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 cited Hollis v Vabu Pty Ltd (2001) 207 CLR 21 cited Jackson v Monadelphous Engineering Associates Pty Ltd [1997] IRCA 281 cited Johnson v Moreton [1980] AC 37 cited Josephson v Walker (1914) 18 CLR 691 cited Keen v Holland [1984] 1 WLR 251 cited Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC…