Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: CSR Limited v Adecco (Australia) Pty Limited [2017] NSWCA 121 Hearing dates: 16 June 2016 Decision date: 31 May 2017 Before: McColl JA at [1];
Macfarlan JA at [219];
Simpson JA at [220]Decision: (1) Appeal allowed.
(2) Set aside the judgment for Adecco (Australia) Pty Limited (as the cross-defendant) on the cross-claim brought by CSR Limited and Holcim (Australia) Pty Limited.
(3) Judgment for CSR Limited on the cross-claim as against Adecco (Australia) Pty Limited.
(4) Order that the Adecco (Australia) Pty Limited indemnify CSR Limited and Holcim (Australia) Pty Limited as regards:
(a) CSR Limited’s liability under the judgment to the plaintiff and for the plaintiff’s costs.
(5) Order that Adecco (Australia) Pty Limited pay CSR Limited and Holcim (Australia) Pty Limited’s costs of the appeal and the proceedings below.
(b) CSR Limited’s liability under the judgment to Adecco Industrial Pty Ltd and for Adecco Industrial Pty Ltd’s costs.
(c) CSR Limited’s costs and expenses incurred in defending the plaintiff’s claim and Adecco Industrial Pty Ltd’s cross-claim; and
(d) Holcim (Australia) Pty Ltd’s costs and expenses incurred in defending the plaintiff’s claim and Adecco Industrial Pty Ltd’s cross-claim.Catchwords: CONTRACT – implied contract – expired fixed term labour supply contract – where labour continued to be supplied and paid for – whether implied contract on same terms as expired contract – whether reasonable bystander would regard parties’ conduct, including silence, as signalling to other party that relationship continued on terms of expired contract
CONTRACT – indemnity – labour supply contract – contractual indemnity – construction – claim by worker injured at labour hirer’s premises – indemnity claimed by hirer from labour supplier
CONTRACT – contractual indemnity – construction – whether strictissimi juris principle enlivened
CONTRACT – construction – use of definitions
WORDS AND PHRASES – “employed by” – “arising out of” – “in connection with”Legislation Cited: Corporations Act 2001 (Cth)
Statute of Frauds 1677 (UK)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Apache Oil Australia Pty Ltd (now known as Quadrant Oil Australia Pty Ltd) v Santos Offshore Pty Ltd [2016] WASCA 213
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; [2000] HCA 25
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36
Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999] 1 AC 266
Big River Timbers Pty Ltd v Stewart [1999] NSWCA 34; (1999) 9 BPR 16,605
Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR…
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- Case
- [2017] NSWCA 121
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether an implied contract on the same terms as the expired fixed-term labour supply contract arose from the continued supply and payment of labour, and the proper construction of the contractual indemnity provisions within that implied contract. Specifically, the court had to determine if the conduct of the parties, including silence, indicated an intention for the relationship to continue on the terms of the expired contract, and if so, whether the indemnity clause covered the hirers' liabilities arising from the worker's injury.
The Court of Appeal reasoned that the conduct of the parties, particularly the continued supply and payment of labour after the expiry of the fixed-term contract, supported the inference of an implied contract on the same terms. The court applied the principle that a reasonable bystander would regard the parties' conduct as signalling their intention for the relationship to continue on the terms of the expired contract. The court further construed the indemnity clause strictly, finding that it was sufficiently broad to encompass the liabilities incurred by the hirers in relation to the injured worker's claim and associated costs.
Consequently, the appeal was allowed. The judgment in favour of Adecco (Australia) Pty Limited on the cross-claim was set aside, and judgment was entered for CSR Limited on the cross-claim. Adecco (Australia) Pty Limited was ordered to indemnify CSR Limited and Holcim (Australia) Pty Limited for various liabilities, including the judgment awarded to the plaintiff, costs associated with the plaintiff's claim and Adecco Industrial Pty Ltd's cross-claim, and their own defence costs. Adecco (Australia) Pty Limited was also ordered to pay the costs of the appeal and the proceedings below.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the judgment for Adecco (Australia) Pty Limited (as the cross-defendant) on the cross-claim brought by CSR Limited and Holcim (Australia) Pty Limited.
(3) Judgment for CSR Limited on the cross-claim as against Adecco (Australia) Pty Limited.
(4) Order that the Adecco (Australia) Pty Limited indemnify CSR Limited and Holcim (Australia) Pty Limited as regards:
(a) CSR Limited’s liability under the judgment to the plaintiff and for the plaintiff’s costs.
(b) CSR Limited’s liability under the judgment to Adecco Industrial Pty Ltd and for Adecco Industrial Pty Ltd’s costs.
(c) CSR Limited’s costs and expenses incurred in defending the plaintiff’s claim and Adecco Industrial Pty Ltd’s cross-claim; and
(d) Holcim (Australia) Pty Ltd’s costs and expenses incurred in defending the plaintiff’s claim and Adecco Industrial Pty Ltd’s cross-claim.
(5) Order that Adecco (Australia) Pty Limited pay CSR Limited and Holcim (Australia) Pty Limited’s costs of the appeal and the proceedings below.
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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