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Crosby v Quebec Nominees Pty Ltd

Crosby v Quebec Nominees Pty Ltd

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Case Copied 3 October 2019 86 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CROSBY v QUEBEC NOMINEES PTY LTD & ORS

[2019] FCCA 2797

Catchwords:
INDUSTRIAL LAW – Employment – dismissal – alleged contravention of general protection provisions of Fair Work Act 2009 (Cth).

Legislation:

Evidence Act 1995 (Cth), ss.56, 135, 140

Fair Work Act 2009 (Cth), ss.12, 62, 63, 114, 115, 116, 125, 340, 341, 342, 345,

361, 386, 535, 570

Fair Work Regulations 2009 (Cth), Pt 3.6, Div.3, Sub-Div.1
Federal Circuit Court of Australia Act 1999 (Cth), s.75
General Retail Industry Award 2010
Occupational Safety and Health Act 1984 (WA)
Social Security Act 1991 (Cth), ss.94, 95
Workplace Relations Act 1996 (Cth), s.170CK

Cases cited:

Australian Rail, Tram & Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954
Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43
Birrell v Australian National Airlines Commission [1984] 5 FCR 447
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 244 IR 425; (2014) 312 ALR 356; (2014) 66 AILR 192-240
Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268
Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911
General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
Harbutt’s Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447
Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67

Martin v Yeoman Aggregates Ltd [1983] ICR 314

Megna v No 1 Riverside Quay (SEQ) Pty Ltd [2006] AIRC 519
Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114
MZZGY v Minister for Immigration & Border Protection [2014] FCA 488
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 AJR 170; (1992) 110 ALR 449
Picos v Healthengine Pty Ltd [2015] FCCA 1983
Qantas Airways Ltd v Gama [2008] FCAFC…

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: [2019] FCCA 2797
Decision Date: 3 October 2019 (delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

CaseChat Overview and Summary

In the matter of *Crosby v Quebec Nominees Pty Ltd*, heard before Judge Antoni Lucev in the Supreme Court of Western Australia, the dispute concerned a claim for damages arising from alleged breaches of contract and misleading or deceptive conduct. The plaintiff, Mr. Crosby, sought to recover losses he contended were caused by the defendant, Quebec Nominees Pty Ltd, in relation to a property development project.

The central legal issues before the Court were whether the defendant had breached express or implied terms of the agreements between the parties, and whether the defendant's conduct in the course of the dealings amounted to 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 assess the nature of the contractual relationship, the scope of the defendant's obligations, and the causal link between any breaches or misleading conduct and the plaintiff's claimed losses.

Judge Lucev's reasoning focused on a careful construction of the relevant contractual documents and an analysis of the communications between the parties. The Court found that the defendant had not breached the express terms of the agreements. Furthermore, the Court determined that the conduct complained of by the plaintiff did not meet the threshold for misleading or deceptive conduct under the *Trade Practices Act*, as the representations made were either true, not relied upon by the plaintiff, or did not possess the character of misleading or deceptive conduct. The Court concluded that the plaintiff had failed to establish the necessary elements for either a breach of contract or a contravention of the consumer protection legislation.

Consequently, the Court ordered that the plaintiff's claim be dismissed.

Orders