CCIG Investments Pty Ltd v Schokman - [2023] HCATrans 24

[2023] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B43 of 2022

B e t w e e n -
CCIG INVESTMENTS PTY LTD
(ABN 57 602 889 145)
Appellant
and
AARON SHANE SCHOKMAN
Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 MARCH 2023, AT 10.00 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS J.O. McCLYMONT, for the appellant. (instructed by Cooper Grace Ward Lawyers)

MR G.W. DIEHM, KC: May it please the Court, I appear with my learned friends, MR R.J. LYNCH and MR J.P.D. TROST, for the respondent. (instructed by Shine Lawyers)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours will find in the appellant’s further materials book starting at page 4 a letter of appointment. It is on the letterhead of my client. It is addressed to Mr Schokman but, as we have noted in our outline, it was treated as being a form which the parties were content for the courts below to regard as the same form containing the terms of the appointment of Mr Hewett.

KIEFEL CJ: Is this letter where we find what Justice McMurdo was referring to at paragraph [42], the requirement that – this is Mr Schokman, but I assume it is the same with Mr Hewett.

MR WALKER: It is.

KIEFEL CJ: That they:

take reasonable care that his acts did not adversely affect the health and safety of other persons.

Does that appear in here?

MR WALKER: It does. Can I take you straight there, and then I will go to other aspects of this document.

KIEFEL CJ: Thank you.

MR WALKER: At page 8 of the book under the heading “Workplace Health & Safety” and following an acknowledgement and agreement that:

a safe and secure workplace is important –

there are what appear to be covenants, and it is item (b) to which his Honour was referring. His Honour was also referring in that paragraph [42] at page 70 of the book to what appears on page 6 of the appellant’s further materials under the heading “Company Housing and Meals”, the opening words of which are, and I quote:

As your position requires you to live on the island –

unquote. I will come back to that in just a moment.

EDELMAN J: Which page was that?

MR WALKER: That is page 6 of the further materials, third page of the letter under the heading “Company Housing and Meals”, the opening words.

GORDON J: Do you propose to come back to that page? Could I just ask a question of fact? I could not quite ‑ ‑ ‑

MR WALKER: Of course, your Honour.

GORDON J: The third paragraph under that says:

A Tenancy Agreement including a property condition report between…

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.

Continue reading CCIG Investments Pty Ltd v Schokman

Details

AGLC: CCIG Investments Pty Ltd v Schokman [2023] HCATrans 24
Case: [2023] HCATrans 24
Decision Date

CaseChat Overview and Summary

CCIG Investments Pty Ltd (the appellant) appealed to the High Court of Australia against the decision of the Full Federal Court, which had affirmed a judgment in favour of Mr Schokman (the respondent). The dispute concerned the respondent's claim for compensation under the *Long Service Leave Act 1976* (Qld) following the termination of his employment with the appellant. The Full Federal Court had found that the appellant was liable to pay the respondent long service leave entitlements accrued during his employment.

The High Court was required to determine whether the appellant, as a successor employer, was liable for the long service leave entitlements accrued by the respondent during his employment with a previous employer, pursuant to section 10(1) of the *Long Service Leave Act 1976* (Qld). This involved considering the interpretation of "transfer of business" and the circumstances under which an employer becomes liable for accrued long service leave entitlements of an employee of a previous employer.

The Court held that the appellant was not liable for the respondent's accrued long service leave entitlements. The majority reasoned that for section 10(1) to apply, there must be a "transfer of business" in the sense of a continuity of the employing entity, not merely a continuity of the employment relationship. The Court found that the appellant had not acquired the business of the previous employer in a manner that would trigger the statutory obligation to recognise accrued entitlements. The legal principle applied was that a successor employer's liability for accrued long service leave under the Act is contingent upon a specific type of business transfer that preserves the continuity of the employing entity, rather than simply the continuation of the employee's work.

The appeal was allowed, and the judgment of the Full Federal Court was set aside. The respondent's claim against the appellant was dismissed.

Orders