SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0152
BETWEEN
| PAUL BANNON | Applicant |
| v | |
| NAURU PHOSPHATE ROYALTIES TRUST | Respondent |
AND BETWEEN:
S APCI 2019 0003
| NAURU PHOSPHATE ROYALTIES TRUST | Cross-Applicant |
| v | |
| PAUL BANNON | Cross-Respondent |
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| JUDGES: | EMERTON and OSBORN JJA and KENNEDY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7–8 November 2019 |
| DATE OF JUDGMENT: | 17 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 303 |
| JUDGMENT APPEALED FROM: | [2018] VSC 532 (McDonald J) |
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PRACTICE AND PROCEDURE – Appeal – Whether appeal made out of time – No orders made at time of delivery of principal judgment – Application made within time – Supreme Court (General Civil Procedure) Rules 2015, r 64.05.
ESTOPPEL – Estoppel by convention – Promissory estoppel – Whether trial judge erred in finding applicant estopped from claiming unpaid monthly entitlements for acting as Secretary/Director of 19 subsidiaries of the respondent – Meaning of ‘monthly entitlement’ – Meaning of ‘subsidiary company’ – Whether payments payable or calculable on monthly basis – No reference to unpaid entitlements in annual budgets prepared and submitted by applicant – No claim made by applicant during course of his employment – Respondent induced to rely on assumption there was no liability to pay – Applicant acquiesced in assumption – Detriment if applicant permitted to resile – Applicant estopped from claiming monthly entitlements.
CONTRACT – Whether claims for monthly entitlements prior to June 2009 statute barred.
CONTRACT – Whether finding of overpayment of funds advanced to applicant in excess of funds expended on behalf of respondent made on pleaded claim – Whether finding of overpayment open on the evidence – Whether onus of proof reversed – Whether claim barred by Nauruan law – Open on pleadings to claim overpayment – Finding of overpayment open on the evidence – Onus of proof not reversed – Nauruan law does not apply to defeat claim for set off or counterclaim – Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 applied.
EMPLOYMENT – Notice of termination of employment – Whether notice of termination valid – Whether provider of notice authorised on behalf of Board – No error in finding notice of termination of employment was valid – Applicant acted consistently with having been given notice – Claims for accrued annual and long service leave – Whether records accurate – Whether entitlement to annual leave loading – Claims for superannuation entitlements – Whether such claims subject to maximum superannuation salary base in Superannuation Guarantee (Administration) Act 1992 (Cth).
INTEREST – Whether interest payable on claim and counterclaim separately – Interest payable on amount reduced by set off.
COSTS – Proceeding included claims for penalties under the Fair Work Act2009 (Cth) (‘FWA’) – Where claims under the FWA only abandoned on first day of trial – Where trial judge struck out FWA claims with effect from date of issue of proceeding for lack of jurisdiction – Strike out order based on…
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- Case
- [2019] VSCA 303
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the appeal was made out of time, whether the applicant was estopped from claiming unpaid monthly entitlements, and whether claims for such entitlements prior to June 2009 were statute-barred. The court also needed to decide whether the finding of overpayment of funds was open on the evidence, whether the onus of proof was reversed, and whether Nauruan law applied to defeat the claim for set off or counterclaim. Additionally, the court had to determine whether the notice of termination of employment was valid, whether the claims for accrued annual and long service leave and superannuation entitlements were subject to the maximum superannuation salary base, whether interest was payable on the claim and counterclaim separately, and whether the costs orders were correctly made.
The court found that the appeal was not made out of time, as the application had been made within the time prescribed by the rules. The court held that the applicant was estopped from claiming unpaid monthly entitlements because he had acquiesced in the assumption that no such entitlements existed, and that the respondent had relied on this assumption to its detriment. The court also found that any claims for unpaid entitlements prior to June 2009 were statute-barred, as the applicant had not made any claim during the course of his employment. The court further held that the finding of overpayment of funds was open on the evidence, and that the onus of proof was not reversed. The court rejected the argument that Nauruan law applied to defeat the claim for set off or counterclaim.
The court found that the notice of termination of employment was valid, and that the applicant had acted consistently with having been given notice. The court also held that the claims for accrued annual and long service leave and superannuation entitlements were subject to the maximum superannuation salary base in the Superannuation Guarantee (Administration) Act 1992 (Cth). The court held that interest was payable on the amount reduced by set off, and that the costs orders were correctly made.
The court substituted the strike out order with effect after the date of abandonment of the claims under the Fair Work Act 2009 (Cth), and held that the s 570 regime applied up to the date of abandonment in relation to the claim. The court held that no separate orders were to be made in respect of the counterclaim, where success was only on the basis of set off. The court made an order under s 570(2)(b) where the inclusion of the Fair Work Act 2009 (Cth) claims was unreasonable, and declined to interfere with the costs discretion after the date of abandonment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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