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Fox v Hinde

Fox v Hinde

Case [2018] FCCA 3398 21 November 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FOX v HINDE & ANOR

[2018] FCCA 3398

Catchwords:
INDUSTRIAL LAW – EMPLOYMENT LAW – Employment relationship – Ascertaining existence and nature of relationship – particular relationships – independent contractor.

Legislation:

Fair Work Act 2009 (Cth), ss.11, 335, 357, 359, 570(2)(b)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s.164

ACE Insurance Ltd v Trifunovski & Ors (2011) 84 ATR 561
ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146
Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385
Commissioner of Pay-roll Tax v Mary Kay Cosmetics Pty Ltd [1982] VR 871
Commonwealth v Verwayen (1990) 170 CLR 394
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597
Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen (2013) 2 Qd R 170
Parr v Patrick Finnegan & Anor [2013] FCCA 512
Ramsay v Pigram (1968) 118 CLR 271
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46

Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537

Applicant:

CHRISTINE GAI FOX

First Respondent:

LEON TRAVIS HINDE

Second Respondent:

GLOBAL EQUITY MANAGEMENT PTY LTD

File Number:

BRG 1020 of 2014

Judgment of:

Judge Jarrett

Hearing date:

11 June 2015

Date of Last Submission:

10 July 2015

Delivered at:

Brisbane

Delivered on:

21 November 2018

REPRESENTATION

The applicant appeared on her own behalf

Counsel for the Respondents:

Mr Lam

Solicitors for the Respondents:

Hickey Lawyers

ORDERS

The application filed on 19 November, 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1020 of 2014

CHRISTINE GAI FOX

Applicant

And

LEON TRAVIS HINDE

First Respondent

GLOBAL EQUITY MANAGEMENT PTY LTD

Second respondent

REASONS FOR JUDGMENT

By these proceedings the applicant alleges that in contravention of ss.357 and 359 of the Fair Work Act 2009 (Cth), the respondents misrepresented what she claims was an employment relationship between she and the first respondent, as a contract of services under which she would perform work as an independent contractor. She seeks orders for compensation and the imposition of pecuniary penalties upon the respondents for their contraventions of the Fair Work Act.
The respondents deny the claims and ask that the proceedings be dismissed.
For the reasons set out herein, I have concluded that:
a)the applicant is precluded from succeeding on this application because she has already prosecuted proceedings in another forum on a basis inconsistent with the present proceedings;
b)in any event, she was not an employee of either the first or the second respondent, but was an independent contractor; and
c)as a consequence neither respondent made any operative misrepresentation to the applicant in contravention of either ss.357 or 359 of the Fair Work Act.

The claims

The applicant argues that at all times she was an employee of the first respondent, or…

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 Fox v Hinde

Details

AGLC: Fox v Hinde [2018] FCCA 3398
Case: [2018] FCCA 3398
Decision Date: 21 November 2018

CaseChat Overview and Summary

In the matter of *Fox v Hinde*, heard before Judge Jarrett, the dispute concerned an application by the plaintiff, Mr. Fox, for an order for specific performance of a contract for the sale of land. The defendant, Ms. Hinde, had agreed to sell a property to Mr. Fox, but subsequently refused to complete the sale, asserting that the contract was void due to a misrepresentation made by Mr. Fox regarding the zoning of the land.

The central legal issue before the court was whether Ms. Hinde was entitled to resile from the contract on the grounds of misrepresentation. Specifically, the court had to determine if Mr. Fox's statement about the zoning of the property constituted a misrepresentation, and if so, whether that misrepresentation was material and induced Ms. Hinde to enter into the contract. The court also considered whether Ms. Hinde had affirmed the contract after becoming aware of the alleged misrepresentation.

Judge Jarrett found that Mr. Fox's statement regarding the zoning was not a misrepresentation of fact, but rather an expression of opinion or belief, which did not give rise to a right to rescind the contract. The court applied the principles of contract law, distinguishing between statements of fact and statements of opinion, and held that for a misrepresentation to be actionable, it must be a false statement of existing fact. Furthermore, the court found that even if there had been a misrepresentation, Ms. Hinde had affirmed the contract by her subsequent conduct.

Consequently, the court ordered specific performance of the contract, compelling Ms. Hinde to complete the sale of the land to Mr. Fox.

Orders