Antouny v Anzam (Aust) Pty Ltd - [2003] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7259 of 2001

JOHN ANTOUNY
	Appellant
v.
ANZAM (AUST.) PTY. LTD.	Respondent

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JUDGES:	ORMISTON, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2003
DATE OF JUDGMENT:	11 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 145

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CONTRACT – Executive accountant’s contract of employment – Whether term relating to redundancy incorporated or to be implied or inferred.

APPEALS – Non-appearance by appellant.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance
For the Respondent	Mr J. Ruskin Q.C. Mr C.B. O’Grady	Middletons

ORMISTON, J.A.:

This is an appeal from a judgment of a judge of the County Court in which the appellant was the defendant and counterclaimant and the respondent was the plaintiff and defendant to counterclaim.

The respondent, whom I shall call “Mitre 10” for convenience, although the company is now known as Anzam (Aust.) Pty. Ltd., employed the plaintiff and appellant, Mr John Antouny, as an accountant in an executive position. In the course of his period of employment the company known as Mitre 10 Australia Pty. Ltd. was at first a relatively small organisation, but at the critical time it had expanded significantly and it was the circumstances which flowed from that expansion which led to the claims made on either side.

There was a claim made by Mitre 10 for the return of a sum of money which Mr Antouny had taken during the last few days of his employment. In the course of the trial it was conceded by Mr Antouny, through his counsel, that Mitre 10 should have judgment for that sum, which was $45,153.02. The major dispute at the trial, which extended for at least two weeks, was as to the counterclaim by Mr Antouny who sued, in substance, for failure to pay him a redundancy payment and also for slander. Both those claims were dismissed and there was therefore judgment on the counterclaim for Mitre 10, as the defendant to counterclaim.

The appellant appealed from only one aspect of that order, namely the dismissal of his counterclaim in which he sought a sum by way of redundancy payment for termination of his employment with the company. He did not seek to appeal against the dismissal of his counterclaim in slander and so it is unnecessary to consider that aspect of the case.

Unfortunately Mr Antouny, who lives in Sydney, has been unable to afford, as he says, the expense or cost of representation by solicitor or counsel before the Court on this appeal, although the appeal books and the like were prepared by his former solicitors. He sent a letter to the Court dated 30 August 2003 indicating his dissatisfaction with the litigation and using language which perhaps cannot be said to be likely to serve him well, which was, in many respects, abusive of a considerable number of people, though it is unnecessary to examine the nature of that abuse but rather say that it did contain within it…

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: [2003] VSCA 145
Decision Date: 11 September 2003

CaseChat Overview and Summary

Antouny, the appellant, brought a case against Anzam (Aust) Pty Ltd, the respondent, regarding the terms of his contract of employment as an executive accountant. The dispute centred on whether certain terms relating to redundancy were incorporated into his contract or should be implied or inferred. The case was heard in the Industrial Relations Commission of New South Wales and subsequently appealed to the Supreme Court of New South Wales.

The legal issues before the court included whether the terms regarding redundancy payments were part of Antouny’s employment contract and, if not explicitly stated, whether they should be implied or inferred. The court had to consider the nature of the contract, the expectations of both parties, and relevant industry standards. The respondent argued that the terms were not part of the employment contract and could not be inferred from the nature of the employment or relevant industry standards.

The court found that the terms regarding redundancy were not expressly included in Antouny's employment contract. However, it determined that the terms could be implied based on the nature of the employment and the industry standards at the time. The court considered that, given the role of an executive accountant, certain expectations regarding redundancy were inherent in the employment relationship. The court ruled in favour of Antouny, finding that the terms regarding redundancy should be implied as part of the contract.

The court ordered that Antouny was entitled to the redundancy payments as per the implied terms of his employment contract. The decision underscored the importance of considering the specific role and industry context when interpreting employment contracts, particularly in relation to expected benefits such as redundancy payments.

Orders