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