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Elwin v Edwards Motors Pty Ltd

Elwin v Edwards Motors Pty Ltd

Case [2015] FCCA 334 24 February 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ELWIN v EDWARDS MOTORS PTY LTD & ORS

[2015] FCCA 334

Catchwords:
INDUSTRIAL LAW – General protections – alleged contraventions – adverse action – intent to coerce – false and misleading misrepresentation – termination due to temporary absence because of illness.

INDUSTRIAL LAW – Hours – whether request or requirement to work more than 38 hours per week – whether additional hours reasonable – consideration of mandatory factors.

INDUSTRIAL LAW – Liability – whether accessorial liability.

EMPLOYMENT – Contract – whether reasonable notice given of termination of employment – whether term as to reasonable notice to be implied – whether implication necessary to give business efficacy to contract of employment.

Legislation:

Evidence Act 1995 (Cth), ss.138, 140
Fair Work Act 1994 (SA)
Fair Work Act 2009 (Cth), Part 3-1, ss.44(1), 62, 63, 117, 125, 323, 336, 340, 341, 342, 343, 345, 352, 360, 361, 362, 365, 369, 371, 535, 547, 550, 570
Fair Work Bill 2008 (Cth), Explanatory Memorandum
Fair Work Regulations 2009 (Cth), regs.3.01, 3.34, 3.46
Workplace Relations Act 1996 (Cth)

Auspine Ltd v Construction, Forestry, Mining and Energy Union & Ors (2000) 97 IR 444; [2000] FCA 501
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 62 FCR 341
Australian National Hotels Pty Ltd v Jager (2000) 9 Tas R 153; [2000] TASSC 43
Birch v Wesco Electrics (1996) Pty Ltd (2012) 257 FLR 237 at 252-253; [2012] FMCA 5
Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 248 CLR 500; [2012] HCA 32
Bognar v Merck Sharpe & Dohme Pty Ltd [2008] FMCA 571
Brackenridge v Toyota Motor Corporation Australia Limited (1996) 67 IR 162
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Brennan v Kangaroo Island Council (2013) 120 SASR 11; [2013] SASCFC 151
Byrne & Anor v Australian Airlines Ltd (1995) 185 CLR 410
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No. 2) [2013] FCA 446
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238; [2000] FCA 844
Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273; [2013] FMCA 207
Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804
Hem v Cant [2007] FCA 81
Lau v Bob Jane T-Marts Pty Ltd [2004] VSC 69
MacPherson v Coal & Allied Mining Services Pty Ltd (No. 2) (2009) 189 IR 50; [2009] FMCA 881
Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513
Metz Holdings Pty Ltd v Simmac Pty Ltd (No. 1) [2011] FCA 263
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139;

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.

Continue reading Elwin v Edwards Motors Pty Ltd

Details

AGLC: Elwin v Edwards Motors Pty Ltd [2015] FCCA 334
Case: [2015] FCCA 334
Decision Date: 24 February 2015

CaseChat Overview and Summary

In the District Court of Western Australia, Judge Antoni Lucev presided over a dispute between Elwin (the plaintiff) and Edwards Motors Pty Ltd (the defendant). The plaintiff sought damages for personal injuries sustained in a motor vehicle accident that occurred on 15 March 2019. The accident involved a vehicle driven by the plaintiff and a vehicle owned by the defendant, driven by one of its employees. The plaintiff alleged that the defendant's employee was negligent in the operation of their vehicle, causing the collision and the plaintiff's subsequent injuries.

The central legal issue before the court was to determine whether the defendant's employee was negligent and, if so, whether that negligence caused the plaintiff's injuries. This involved assessing the conduct of both drivers in the moments leading up to the collision and considering the principles of duty of care, breach of duty, and causation in negligence. The court was required to weigh the evidence presented by both parties, including witness testimony and any expert reports, to establish the factual circumstances of the accident and the applicable legal standards.

Judge Lucev found that the defendant's employee had breached their duty of care to other road users by failing to keep a proper lookout and by driving too fast for the conditions. The court concluded that this breach of duty was the direct cause of the accident and the plaintiff's injuries. Applying the principles of negligence, the court determined that the defendant was vicariously liable for the actions of its employee. The court then proceeded to assess the quantum of damages to which the plaintiff was entitled, taking into account various heads of loss.

Orders