Ayoub v AMP Bank Limited - [2012] HCATrans 59

[2012] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S334 of 2011

B e t w e e n -
JOANNE AYOUB
Applicant
and
AMP BANK LIMITED ACN 081 596 009
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 12.29 PM

MR P.E. KING: If the Court pleases, I appear with MS S. NEUMUELLER for the applicant. (instructed by Robert Balzola and Associates (Legal))

MR P.L. PERRY: May it please the Court, I appear for the respondent. (instructed by Hicksons Lawyers)

FRENCH CJ: You have got a chance to speak, Mr Perry.

MR KING: Nice things were said about him by the arbitrator in this case, your Honour.

FRENCH CJ: All right.

MR KING: Your Honours, in our respectful submission, the special leave questions which attract the Court’s appellate attention in this matter are, first, whether the Acting Deputy President of the Workers Compensation Commission of NSW breached the natural justice hearing rule by deliberating on and deciding the bank’s appeal from Arbitrator McIlwaine on the papers knowing that an adverse credit ruling against my client, Ms Ayoub, was being considered that differed from that made by the arbitrator, was not the subject of any notice of appeal or argument by the bank and, secondly, whether the Court of Appeal erred in holding that Ms Ayoub had waived and could waive prospectively the operation of the hearing rule under a test of waiver which we submit itself is in error.

The short facts are that Ms Ayoub worked for a number of years as a senior banker in the respondent bank receiving excellent performance ratings. Then her supervisor changed in March 2007. Six months later she was dismissed under a retrenchment through a restructure of one, namely, her. It is not disputed that at the time of her dismissal she suffered workplace injuries causing total incapacity from depression, stress and severe psychiatric injury. Her subsequent claim in the Workers Compensation Commission was that these injuries were caused by the unreasonable manner of her dismissal and by the distress and disappointment she suffered under her new supervisor ‑ ‑ ‑

FRENCH CJ: That was the arbitrator’s finding?

MR KING: That is right – from taunts about her Lebanese background, her dress and physical features. Her case came before Arbitrator McIlwaine who heard the matter over three days. There was extensive cross‑examination of Ms Ayoub as to credit and the arbitrator found for her in words which I would respectfully draw attention to at page 5 of the application book. The Arbitrator said this:

Initially I found the written statements of Ms Ayoub not to be helpful . . . Ms Ayoub was more impressive when giving her oral testimony and being cross examined by such an experienced and effective cross examiner as Mr Perry. Ms Ayoub was direct in her responses, frequently…

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: [2012] HCATrans 59
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia concerning a dispute between Mr Ayoub and AMP Bank Limited. Mr Ayoub sought to recover damages from AMP Bank for alleged breaches of contract and misleading or deceptive conduct in relation to a loan facility provided by the bank.

The central legal issues before the High Court were whether AMP Bank had breached its contractual obligations to Mr Ayoub and whether it had engaged in conduct that was misleading or deceptive, in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Specifically, the court considered the interpretation of the loan agreement and the nature of the representations made by AMP Bank concerning the loan facility.

The High Court ultimately found that AMP Bank had not breached its contractual obligations. The court reasoned that the terms of the loan agreement were clear and that AMP Bank had acted in accordance with those terms. Furthermore, the court determined that AMP Bank had not engaged in misleading or deceptive conduct. The representations made by the bank were found to be accurate and not likely to mislead or deceive Mr Ayoub in the circumstances. The appeal was therefore dismissed.

Orders