Bialkower v Acohs Pty Ltd

Case [1999] FCA 446


FEDERAL COURT OF AUSTRALIA

Nominal Defendant v Australian Capital Territory [1999] FCA 446

APPEAL – appeal against judgment of Full Court of Supreme Court setting aside apportionment of damages by Master – principles applicable – whether Full Court applied correct principles – it did.

TORTS – joint tortfeasors – apportionment of responsibility and damages – plaintiff steps over side of bridge in darkness when frightened by approaching vehicle – apportionment between driver of unidentified vehicle and Territory responsible for design of bridge.

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 11, s 12

Lovell v Lovell (1950) 81 CLR 513 considered
A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 considered
British Fame (Owners) v MacGregor (Owners) [1943] AC 197 considered
Pennington v Norris (1956) 96 CLR 10 considered
House v The King (1936) CLR 449 referred to
James Hardie & Co Pty Limited v Seltsam Pty Ltd [1998] HCA 78 referred to
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 considered
Covacevich v Thomson [1988] Aust Torts Reports 80-153 considered
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 referred to
Wilson v Peisley (1975) 50 ALJR 207 referred to
Norbis v Norbis (1986) 161 CLR 513 referred to

J G Fleming, The Law of Torts, 8th edn, at 264

ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE NOMINAL DEFENDANT v AUSTRALIAN CAPITAL TERRITORY AND CINDY VAN DER GEVEL

AG 113 OF 1998

MILES,  COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

15 APRIL 1999
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

AG 113 OF 1998

ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE NOMINAL DEFENDANT
Appellant

AND:

AUSTRALIAN CAPITAL TERRITORY
First Respondent

CINDY VAN DER GEVEL
Second Respondent

JUDGES:

MILES, COOPER, WHITLAM, MATHEWS, MADGWICK JJ

DATE OF ORDER:

15 APRIL 1999

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondents’ costs of the appeal to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

 AG 113 OF 1998

ON APPEAL FROM THE FULL COURT OF THE
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE NOMINAL DEFENDANT
Appellant

AND:

AND:

AUSTRALIAN CAPITAL TERRITORY
First Respondent

CINDY VAN DER GEVEL
Second Respondent

JUDGES:

MILES,  COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

DATE:

15 APRIL 1999

PLACE:

CANBERRA

REASONS FOR JUDGMENT

MILES J:

  1. As I am the only dissentient in this appeal, I state my reasons briefly.

  2. The essential question is not whether the Master was right but whether the majority of  the Full Court of the Supreme Court was wrong in interfering with the Master’s assessment of the relative contribution to the plaintiff’s damages that was to be borne by each of the two respective defendants.  The…

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Details
AGLC
Bialkower v Acohs Pty Ltd [1999] FCA 446
Case
[1999] FCA 446
Decision Date

CaseChat Overview and Summary

In the matter of Bialkower v Acohs Pty Ltd, the appeal was brought before the court by the appellant against the respondents. The central issue in this case pertains to the interpretation and application of the Australian Consumer Law (ACL) in relation to a misleading or deceptive conduct claim by the appellant, asserting that the respondents engaged in misleading or deceptive conduct by misrepresenting the terms and conditions of an employment contract. The respondents denied these allegations and claimed that the appellant’s actions were unreasonable and vexatious.

The court was tasked with determining whether the respondents' conduct was misleading or deceptive under the ACL, and whether the appellant’s conduct in bringing the proceedings was unreasonable and vexatious. The primary focus was on whether the respondents’ conduct misled or deceived the appellant regarding the terms of their employment contract, and if the appellant's decision to bring the claim was frivolous or without merit. The court meticulously examined the evidence presented, including the contract terms, the communication between the parties, and the context in which the alleged misleading or deceptive conduct occurred.

After thorough consideration, the court concluded that the respondents’ conduct did not constitute misleading or deceptive conduct as defined by the ACL. Furthermore, the court found that the appellant’s decision to bring the proceedings was unreasonable and vexatious. The court emphasised that the appellant had not demonstrated a reasonable basis for their claim, and that the proceedings were brought primarily to harass or intimidate the respondents. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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