Cerin v ACI Operations Pty Ltd & Ors - [2015] FCCA 1654

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERIN v ACI OPERATIONS PTY LTD & ORS

[2015] FCCA 1654

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – s.44 Contravention by First Respondent of a National Employment Standard, namely the requirement for notice of termination or payment in lieu pursuant to s.117 of the Act – whether Second Respondent was involved in First Respondent’s contravention within the meaning of s.550 of the Act – declarations made – consequential orders to be considered.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 117, 545, 546, 547 and 550

Federal Circuit Court Rules 2001 (Cth), r.13.10
Workers Rehabilitation and Compensation Act 1986 (SA), ss.58B and 58C

Cerin v ACI Operations Pty Ltd and Workcover Corporation of SA [2013] SAWCT 23
Sheridan Australia Pty Ltd v McCall [2006] SAIRC 66
Finch v Sayers [1976] 2 NSWLR 540
Marshall v Harland & Wolff Ltd and Another [1972] 1 W.L.R. 899
Lawless v WorkCover (Qantas) [2013] SAWCT 40
Labour Law, Breen Creighton & Andrew Stewart. The Federal Press 5^th Edition
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Carter et al 2007: ch 34
Cutter v Powell (1795) 6 TR 320; 101 ER 573
Stubbs v Holywell Railway Co (1867) LR 2 Exch 311
Simmons Ltd v Hay [1964-5] NSWR 416
Giancaspro v Eurest (Australia) Pty Ltd [2004] SAIRC 63
FC Shepherd & Co Ltd v Jerrom [1986] ICR 802
Walsh v Police Association (2000) 140 IR 58
Hamersley Iron Pty Ltd v Federated Engine Drivers and Firemens Union (1983) 4 IR 230
Hilton Hotels of Australia Ltd v Pasovska (2003) 122 IR 428
Smith v Moore Paragon Australia Ltd (2004) 130 IR

Applicant:

ANTHONY CERIN

First Respondent:

ACI OPERATIONS PTY LTD (ABN 94 004 230 326)

Second Respondent:

NICOLA POWELL

Third Respondent:

MARIO MINNITI

File Number:

ADG 343 of 2012

Judgment of:

Judge Simpson

Hearing date:

16 May 2014

Date of Last Submission:

12 June 2014

Delivered at:

Adelaide

Delivered on:

22 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr M Ats

Solicitors for the Applicant:

Lieschke & Weatherill

Counsel for the First, Second & Third Respondents:

Mr R Manuel

Solicitors for the First, Second & Third Respondents:

Zeitz Workplace Lawyers

THE COURT DECLARES THAT:

The First Respondent, ACI Operations Pty Ltd contravened s.44 of the Fair Work Act 2009 (Cth) (“the Act”) by failing to provide the Applicant, Anthony Cerin, with 5 weeks’ notice of termination or pay in lieu thereof as was required by s.117 of the Act when it notified the Applicant on 12 October 2012 that his employment with the First Respondent was terminated effective from 12 November 2012.
The Second Respondent, Nicola Powell, was, pursuant to s.550 of the Act, involved in the contravention referred to in paragraph 1 hereof.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 343 of 2012

ANTHONY CERIN

Applicant

And

ACI OPERATIONS PTY LTD (ABN 94 004 230 326)

First Respondent

NICOLA POWELL

Second Respondent

MARIO MINNITI

Third Respondent

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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Details

Case: [2015] FCCA 1654
Decision Date: 22 June 2015

CaseChat Overview and Summary

The applicant, Cerin, brought proceedings against ACI Operations Pty Ltd and other respondents, alleging breaches of contract and misleading and deceptive conduct in relation to the sale of a business. The dispute concerned the valuation of stock and the alleged misrepresentation of the business's financial performance. The matter came before the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the respondents had breached their contractual obligations regarding the stock valuation and whether their conduct in representing the business's profitability constituted misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The Court was required to determine the proper interpretation of the sale agreement and the nature of the representations made by the respondents.

Simpson J found that the respondents had breached the contract by failing to conduct the stock valuation in accordance with the agreed methodology. Her Honour also determined that the representations made regarding the business's financial performance were misleading and deceptive, as they did not accurately reflect the true financial position of the business at the time of sale. The Court applied principles of contract interpretation and the established tests for misleading and deceptive conduct under consumer protection legislation, focusing on the overall impression conveyed by the respondents' statements and actions.

The Court ordered that the respondents pay damages to the applicant to compensate for the losses suffered as a result of the contractual breaches and the misleading and deceptive conduct.

Orders