Davidson v McCann Worldgroup Pty Limited - [2010] FMCA 451

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVIDSON v McCANN WORLDGROUP PTY LIMITED & ANOR

[2010] FMCA 451

HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – whether proceedings instituted by two former employees of a respondent should be consolidated – whether two sets of proceedings instituted by an applicant should be consolidated.

Australian Human Rights Commission Act 1986 (Cth), s.3
Sex Discrimination Act 1984 (Cth), ss.94, 106

Federal Court Rules, O.6 r.2, O.29 r.2, O.29 r.5
Federal Magistrates Court Rules, r.1.05

Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
BHP Billiton Limited v Schultz and Others (2004) 221 CLR 400; [2004] HCA 61
Calmer Pty Ltd & Ors v Michel's Patisserie (WA) Pty Ltd & Anor [2009] FMCA 42
Lord v Agreserves Australia Limited ACN 080 646 251 [2006] FCA 598
Re Ling; Ex Parte Ling v Commonwealth of Australia (1995) 58 FCR 129; [1995] FCA 1410
Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384; [1981] FCA 48
Wylie v McCann Worldgroup Pty Limited & Anor [2010] FMCA 457

Applicant:

JENNIFER DAVIDSON

First Respondent:

McCANN WORLDGROUP PTY LIMITED

(ACN 000 154 889)

Second Respondent:

PAUL BROWN

File number:

SYG71 of 2009

Judgment of:

Barnes FM

Hearing dates:

2 & 4 March 2010

Delivered at:

Sydney

Delivered on:

30 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Darams

Solicitors for the Applicant:

Harmers Workplace Lawyers

Counsel for the First Respondent:

Mr P Newall

Counsel for the Second Respondent:

Mr J Fernon SC

Solicitors for the Respondents:

Baker and McKenzie

ORDERS

Matter number SYG535/2008 and matter number SYG71/2009 be heard together and evidence in one matter be evidence in the other matter.
The amended application in a case filed by the applicant on 2 March 2010 otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG71 of 2009

JENNIFER DAVIDSON

Applicant

And

McCANN WORLDGROUP PTY LIMITED
(ACN 000 154 889)

First Respondent

PAUL BROWN

Second Respondent

REASONS FOR JUDGMENT

Background

Ms Davidson has instituted two sets of proceedings in this court. First, on 5 March 2008 she commenced proceedings against McCann Worldgroup Pty Limited (McCanns) alleging direct discrimination on the grounds of sex, marital status, pregnancy and/or potential pregnancy, indirect discrimination and breach of her contract of employment (referred to for convenience hereafter as Davidson No. 1).
Secondly, Ms Davidson commenced proceedings (referred to for convenience as Davidson No. 2) against McCanns (the first respondent), Paul Brown (the second respondent) and Baker and McKenzie (the third respondent), although she no longer maintains the proceedings against Baker and McKenzie. In Davidson No. 2 Ms Davidson alleged three kinds of victimisation said to constitute unlawful discrimination under s.94 of the Sex Discrimination Act 1984 (Cth) (the SDA) and s.3 of the Australian Human Rights Commission Act 1986 (Cth) (the AHRCA): first, that McCanns committed an act of victimisation against her within s.94(1) of the SDA by failing to pay her…

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: [2010] FMCA 451
Decision Date: 30 June 2010

CaseChat Overview and Summary

Davidson v McCann Worldgroup Pty Limited is a dispute that came before the Federal Court of Australia. The plaintiff, Davidson, sued the defendant, McCann Worldgroup Pty Limited, alleging that the defendant had breached a contract and engaged in misleading and deceptive conduct under the Australian Consumer Law. The case involved a complex web of contractual relationships, alleged breaches, and counter-claims. The primary legal issues that the court was required to decide involved the interpretation of the contract, the applicability of the Australian Consumer Law, and the admissibility of evidence.

The court examined the contractual terms, including the definition of "services" and "intellectual property rights". It found that the contract was ambiguous in certain respects and that the parties had not adequately defined what constituted "services" and "intellectual property rights". The court also considered whether the defendant's conduct was misleading or deceptive under the Australian Consumer Law. The court found that the defendant's conduct was not misleading or deceptive as it did not create a false impression or present an inaccurate picture of the services provided. Regarding the admissibility of evidence, the court held that the evidence presented by the plaintiff was not admissible as it was not relevant to the issues before the court.

The court ordered that the two matters be heard together and that evidence in one matter be evidence in the other matter. It also dismissed the amended application in a case filed by the applicant on 2 March 2010. The court held that the application was an attempt to introduce new evidence and arguments that were not properly before the court. The court found that the application was an abuse of process and dismissed it.

Orders

Orders of the court

Matter number SYG535/2008 and matter number SYG71/2009 be heard together and evidence in one matter be evidence in the other matter.

The amended application in a case filed by the applicant on 2 March 2010 otherwise be dismissed.

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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