Allison v Tuna Tasmania Pty Ltd - [2018] TASFC 5

[2018] TASFC 5

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Allison v Tuna Tasmania Pty Ltd [2018] TASFC 5

PARTIES:  ALLISON, Paul Francis
  v
  TUNA TASMANIA PTY LTD
  FARRER, John Frederick
  FARRER, Sharon Tina
  LAWRENCES MOTORS PTY LTD as trustee of
  The Farrer Superannuation Fund and as trustee of
  The Farrer Superannuation Fund (No 2)
  HAVENFLASH PTY LTD as trustee of
  The Farrer Family Trust

FILE NO: 1207/2015
JUDGMENT

APPEALED FROM: Allison v Tuna Tasmania Pty Ltd [2015] TASSC 31

DELIVERED ON:  11 September 2018
DELIVERED AT:  Hobart
HEARING DATES:  9, 10, 11 April 2018
JUDGMENT OF:  Pearce J, Brett J, Martin AJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Points and objections not taken below – When not allowed to be raised on appeal – Course of conduct at trial – Generally – Breach of fiduciary duty based on contract to enter into a partnership not raised at trial.

Water Board v Moustakas (1988) 180 CLR 491; Whisprun Pty Ltd v Dixon [2003] HCA 48, 77 ALJR 1598, applied.

Aust Dig Appeal and New Trial [90]

Contracts – General contractual principles – Formation of contractual relations – Matters not giving rise to binding contract – Vagueness and uncertainty – Agreement subject to further agreement or arrangement – Contract to enter into a partnership not established.

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1, applied.

Aust Dig Contracts [7]

REPRESENTATION:

Counsel:
             Appellant:  A Morris QC, J P Murphy
             Respondents:  S B McElwaine SC, T Williams
Solicitors:
             Appellant:  No solicitor
             Respondents:  Timothy Williams

Judgment Number: [2018] TASFC 5
Number of paragraphs: 133

Serial No 5/2018
File No 1207/2015

PAUL FRANCIS ALLISON v TUNA TASMANIA PTY LTD,
JOHN FREDERICK FARRER, SHARON TINA FARRER,
LAWRENCES MOTORS PTY LTD as trustee of
the Farrer Superannuation Fund and as trustee of
the Farrer Superannuation Fund (No 2), and
HAVENFLASH PTY LTD as trustee of the Farrer Family Trust

REASONS FOR JUDGMENT FULL COURT

PEARCE J
BRETT J
MARTIN AJ
11 September 2018

Orders of the Court

Appeal dismissed.

Serial No 5/2018
File No 1207/2015

REASONS FOR JUDGMENT FULL COURT

PEARCE J
11 September 2018

I agree with Martin AJ.

File No 1207/2015

REASONS FOR JUDGMENT FULL COURT

BRETT J
11 September 2018

I agree with Martin…

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: [2018] TASFC 5
Decision Date: 11 September 2018

CaseChat Overview and Summary

The appeal concerned a dispute between Allison and Tuna Tasmania Pty Ltd. Allison had been employed by Tuna Tasmania and alleged that he had been induced to enter into a contract of employment by misrepresentations made by the company. He further alleged that the company had breached its fiduciary duty to him by entering into a partnership agreement with a third party without his knowledge or consent, which he claimed was a breach of the employment contract. The matter was heard by the Full Court of the Supreme Court of Tasmania.

The primary legal issues before the Full Court were whether Allison was entitled to raise new arguments on appeal, specifically concerning a breach of fiduciary duty based on a partnership agreement, when these arguments had not been raised or fully pursued at the trial. The Court also had to consider the nature of the contractual relationship between Allison and Tuna Tasmania and whether any misrepresentations had been made that vitiated the employment contract.

The Full Court held that Allison was not permitted to raise the argument concerning a breach of fiduciary duty based on the partnership agreement on appeal. This was because the point had not been properly taken or litigated at the trial, and to allow it to be raised on appeal would be unfair to the respondent and would depart from the established course of conduct at trial. The Court found that the trial judge had correctly determined the issues that were before him.

Consequently, the appeal was dismissed.

Orders