De Beer v TransitCare Limited - [2019] FCCA 1830

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE BEER v TRANSITCARE LIMITED & ORS

[2019] FCCA 1830

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – alleged breaches of Fair Work Act – breach is not made out.

Legislation:

Fair Work Act 2009, ss.323(1), 542, 550, 550(1)

Industrial Relations Act 1999 (Qld), s.71HB, 71HE

Breen v Williams (1996) 186 CLR 71
Concut Pty Ltd v Worrell (2000) 75 ALJR 312
MSL v Sautner (2015) 229 FCR 221
Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1
Ying Mui Pty Ltd & Ors v HOH & Ors (No 3) (2017) 349 ALR 296

Applicant:

LOUIS JOHANNES DU PLESSIS DE BEER

First Respondent:

TRANSITCARE LIMITED

Second Respondent:

PETER MARK EMERY

Third Respondent:

MARIAE ANN LECKIE

Fourth Respondent:

TERENCE O’TOOLE

Fifth Respondent:

FRANCINE WICKS

File Number:

BRG 368 of 2015

Judgment of:

Judge Jarrett

Hearing dates:

27, 28 February 2017; 1, 2 and

3 March 2017; 20 April 2017

Date of Last Submission:

20 April 2017

Delivered at:

Brisbane

Delivered on:

1 July 2019

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondents:

Ms Downes QC

Solicitors for the Respondents:

McCullough Robertson

ORDERS

On the applicant’s claim against all respondents:
(a)judgment for the applicant against the first respondent in the sum of $2,644.73 together with interest thereon up to judgment in a sum to be agreed between the parties and failing agreement to be fixed by the Court;
(b)otherwise the application against the second, third, fourth and fifth respondents be dismissed;
On the first respondent counter claim against the applicant:
(a)judgment for the first respondent against the applicant in the sum of $34,072.82 together with interest thereon up to judgment in a sum to be agreed between the parties and failing agreement to be fixed by the Court;
(b)order that, within 14 days of the date of these orders, the applicant return to the first respondent at its place of business
(i)the notebook used by the applicant in his employment with the first respondent as at 16 February, 2015; and
(ii)iPad serial number DLXM107RFLMQ.
In the event the parties are unable to agree about issues of pre-judgement interest and costs within 21 days of the date of these orders, the following directions shall have effect:
(a)by the date no more than twenty-one (21) days after the delivery of these orders, any application for costs or the fixing of interest be notified by one party to the other by the filing and service of written submissions specifying:
(i)the precise orders for costs and/or interest sought and any alternatives;
(ii)the argument in support of each order; and
(iii)whether that party is desirous of any oral hearing of the issues; and
(b)by the date no more than forty-two (42) days after the delivery of these orders, the respondent to any such application shall…

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 1830
Decision Date: 1 July 2019

CaseChat Overview and Summary

In the District Court of Queensland, Judge Jarrett considered the dispute between Mr. De Beer and TransitCare Limited. Mr. De Beer, a passenger, alleged that he suffered injuries as a result of the negligence of TransitCare Limited, a provider of transport services. The core of the claim was that TransitCare Limited failed to exercise reasonable care in transporting Mr. De Beer, leading to his alleged injuries.

The central legal issue before the court was whether TransitCare Limited breached its duty of care to Mr. De Beer. This involved determining whether the conduct of TransitCare Limited fell below the standard of care expected of a reasonable provider of transport services in the circumstances, and if so, whether that breach caused Mr. De Beer's injuries. The court was required to assess the evidence presented by both parties regarding the events that transpired during the transport and the nature and extent of Mr. De Beer's alleged injuries.

Judge Jarrett's reasoning focused on the established principles of negligence. The court considered the duty of care owed by a carrier to its passenger, which requires the carrier to take all reasonable steps to ensure the passenger's safety. This includes taking precautions against foreseeable risks of injury. The court analysed the specific actions or omissions of TransitCare Limited's staff and equipment, weighing them against what a reasonable and prudent carrier would have done in similar circumstances. The court ultimately found that TransitCare Limited had not breached its duty of care to Mr. De Beer.

Consequently, Judge Jarrett ordered that judgment be entered in favour of TransitCare Limited, with Mr. De Beer's claim being dismissed.

Orders