Legal Research
Cases
Bannon v Nauru Phosphate Royalties Trust

Bannon v Nauru Phosphate Royalties Trust

Link copied

Case Copied 17 December 2019 68 min read

Contents

On this page

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

---

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)

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Bannon v Nauru Phosphate Royalties Trust and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSCA 303
Decision Date: 17 December 2019

CaseChat Overview and Summary

In the case of Bannon v Nauru Phosphate Royalties Trust, the dispute before the court involved the former Secretary/Director of the respondent, who was seeking unpaid monthly entitlements and other benefits. The respondent claimed that the applicant was estopped from making these claims due to his acquiescence in the assumption that no such entitlements existed. The respondent also argued that any claims for unpaid entitlements prior to June 2009 were statute-barred, and that any overpayment of funds advanced to the applicant should be offset against any entitlement to unpaid entitlements.

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