Encyclopaedia Britannica Australia Ltd v Campbell - [2009] NSWCA 286

New South Wales

Court of Appeal

CITATION: Encyclopaedia Britannica Australia Ltd v David Campbell [2009] NSWCA 286

HEARING DATE(S): 24 August 2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Giles JA at 1; Macfarlan JA at 2; Sackville AJA at 3

DECISION: 1) Appeal allowed.
2) Set aside orders 1 to 4 made on 14 November 2008 and entered on 9 February 2009.
3) In lieu of the orders referred to in order 2 above, order that judgment be entered for the appellant (the defendant below).
4) Order the respondent to repay to the appellant the sum of $150,650.18 paid by it to the respondent pursuant to the orders made on 14 November 2008, together with interest thereon at the rates specified from time to time in Schedule 5 to the UCPR from 12 December 2008 to the date of repayment.
5) Direct the appellant to file within seven days an amended notice of appeal seeking restitution of the sum referred to in Order 4 and interest thereon.
6) The appellants file and serve written submissions on the costs of the trial and of the appeal within seven days.
7) The respondent file and serve written submissions in reply within a further seven days.

CATCHWORDS: EMPLOYMENT LAW- contract of employment- period of notice required in termination of employment- whether in "event of redundancy"

LEGISLATION CITED: Supreme Court Act 1970 (NSW) s75A
Uniform Civil Procedure Rules 2005 (NSW) rr 51.52(3), 51.54; Schedule 5

CATEGORY: Principal judgment

CASES CITED: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241
Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693
Dibb v Commissioner of Taxation [2004] FCAFC 126; 136 FCR 388
Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2008] HCA 35; 201 CLR 520
Heydon v NRMA (No 2) [2001] NSWCA 445; 53 NSWLR 600
Jones v Department of Energy and Minerals [1995] IRCA 292; 60 IR 304
Pacific Carriers Ltd v BNP Paripas [2004] HCA 35; 218 CLR 451
Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 32;219 CLR 165
R v Industrial Commission (SA); Ex Parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6
Short v F W Hercus Pty Ltd [1993] FCA 51; 40 FCR 511
Tallerman and Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10; 98 CLR 93
TCN Channel 9 v Antoniadis (No 2) [1999] NSWCA 104
Willis v Health Communications Network Ltd [207] NSWCA 313

PARTIES: Encyclopaedia Britannica Australia Ltd (Appellant)
David Campbell (Respondent)

FILE NUMBER(S): CA CA 40420/08

COUNSEL: T Hale SC/ P Sibtain (Appellant)
A McInerney (Respondent)

SOLICITORS: Unsworth Legal (Appellant)
Carneys Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 5617/06

LOWER COURT JUDICIAL OFFICER: Bergin CJ in Eq

LOWER COURT DATE OF DECISION: 11 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Campbell v Encyclopaedia Britannica Australia Ltd…

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: [2009] NSWCA 286
Decision Date: 10 September 2009

CaseChat Overview and Summary

The appeal in *Encyclopaedia Britannica Australia Ltd v Campbell* concerned a dispute over the period of notice required for the termination of an employment contract, specifically in the context of redundancy. The case was heard in the Court of Appeal of New South Wales.

The central legal issue before the court was the interpretation of a clause in the employment contract that stipulated a notice period of "six months or six months' pay" in the event of redundancy. The court was required to determine whether the circumstances of the respondent's termination constituted a redundancy within the meaning of the contract, and consequently, what notice period was legally due.

The Court of Appeal allowed the appeal, setting aside the previous orders made by the trial court. The court reasoned that the respondent's employment was terminated not due to redundancy, but rather due to the employer's decision to cease a particular business operation. This distinction was critical, as the contractual provision for a six-month notice period was expressly limited to "event of redundancy." As such, the court found that the respondent was not entitled to the extended notice period stipulated for redundancy. The court ordered the respondent to repay the sum of $150,650.18, which had been paid pursuant to the earlier orders, along with interest.

Orders

Orders of the court

1) Appeal allowed.

2) Set aside orders 1 to 4 made on 14 November 2008 and entered on 9 February 2009.

3) In lieu of the orders referred to in order 2 above, order that judgment be entered for the appellant (the defendant below).

4) Order the respondent to repay to the appellant the sum of $150,650.18 paid by it to the respondent pursuant to the orders made on 14 November 2008, together with interest thereon at the rates specified from time to time in Schedule 5 to the UCPR from 12 December 2008 to the date of repayment.

5) Direct the appellant to file within seven days an amended notice of appeal seeking restitution of the sum referred to in Order 4 and interest thereon.

6) The appellants file and serve written submissions on the costs of the trial and of the appeal within seven days.

7) The respondent file and serve written submissions in reply within a further seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Encyclopaedia Britannica Australia Ltd v David Campbell [2009] NSWCA 286
HEARING DATE(S):	24 August 2009
JUDGMENT DATE:	10 September 2009
JUDGMENT OF:	Giles JA at 1; Macfarlan JA at 2; Sackville AJA at 3
DECISION:	1) Appeal allowed. 2) Set aside orders 1 to 4 made on 14 November 2008 and entered on 9 February 2009. 3) In lieu of the orders referred to in order 2 above, order that judgment be entered for the appellant (the defendant below). 4) Order the respondent to repay to the appellant the sum of $150,650.18 paid by it to the respondent pursuant to the orders made on 14 November 2008, together with interest thereon at the rates specified from time to time in Schedule 5 to the UCPR from 12 December 2008 to the date of repayment. 5) Direct the appellant to file within seven days an amended notice of appeal seeking restitution of the sum referred to in Order 4 and interest thereon. 6) The appellants file and serve written submissions on the costs of the trial and of the appeal within seven days. 7) The respondent file and serve written submissions in reply within a further seven days.
CATCHWORDS:	EMPLOYMENT LAW- contract of employment- period of notice required in termination of employment- whether in "event of redundancy"
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) s75A Uniform Civil Procedure Rules 2005 (NSW) rr 51.52(3), 51.54; Schedule 5
CATEGORY:	Principal judgment
CASES CITED:	Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693 Dibb v Commissioner of Taxation [2004] FCAFC 126; 136 FCR 388 Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2008] HCA 35; 201 CLR 520 Heydon v NRMA (No 2) [2001] NSWCA 445; 53 NSWLR 600 Jones v Department of Energy and Minerals [1995] IRCA 292; 60 IR 304 Pacific Carriers Ltd v BNP Paripas [2004] HCA 35; 218 CLR 451 Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 32;219 CLR 165 R v Industrial Commission (SA); Ex Parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 Short v F W Hercus Pty Ltd [1993] FCA 51; 40 FCR 511 Tallerman and Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10; 98 CLR 93 TCN Channel 9 v Antoniadis (No 2) [1999] NSWCA 104 Willis v Health Communications Network Ltd [207] NSWCA 313
PARTIES:	Encyclopaedia Britannica Australia Ltd (Appellant) David Campbell (Respondent)
FILE NUMBER(S):	CA CA 40420/08
COUNSEL:	T Hale SC/ P Sibtain (Appellant) A McInerney (Respondent)
SOLICITORS:	Unsworth Legal (Appellant) Carneys Lawyers (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	5617/06
LOWER COURT JUDICIAL OFFICER:	Bergin CJ in Eq
LOWER COURT DATE OF DECISION:	11 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Campbell v Encyclopaedia Britannica Australia Ltd…