Gambaro v Mobycom Mobile Pty Ltd - [2020] FCCA 121

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v MOBYCOM MOBILE PTY LTD & ORS

[2020] FCCA 121

Catchwords:
INDUSTRIAL LAW – Application to amend statement of claim – application allowed – application to join party to proceeding – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.55, 550

Applicant:

MICHAEL ALEXANDER GAMBARO

First Respondent:

MOBYCOM MOBILE PTY LTD
(ACN 110 558 873)

Second Respondent:

SOUTHAM CONSULTING PTY LTD (ACN 110 497 295)

Third Respondent:

CRAIG ANTHONY SOUTHAM

Fourth Respondent:

BONNY ERIN FARRELL

Fifth Respondent:

LINCOLN AARON BODLE

Sixth Respondent:

JAMES KENNETH HARRISON

File Number:

BRG 874 of 2017

Judgment of:

Judge Jarrett

Hearing date:

10 October 2019

Date of Last Submission:

10 October 2019

Delivered at:

Brisbane

Delivered on:

17 January 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondents:

Mr McAuliff

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicant file and serve a further amended statement of claim by 4:00pm on 14 February, 2020.
The respondents file and serve an amended response by 4:00pm on 13 March, 2020.
The application is adjourned to 3 April, 2020 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 874 of 2017

MICHAEL ALEXANDER GAMBARO

Applicant

And

MOBYCOM MOBILE PTY LTD (ACN 110 558 873)

First Respondent

SOUTHAM CONSULTING PTY LTD (ACN 110 497 295)

Second Respondent

CRAIG ANTHONY SOUTHAM

Third Respondent

BONNY ERIN FARRELL

Fourth Respondent

LINCOLN AARON BODLE

Fifth Respondent

JAMES KENNETH HARRISON

Sixth Respondent

REASONS FOR JUDGMENT

This is an application by the applicant in the principal proceedings for an order that he have leave to file and serve an intended amended statement of claim, as he describes it. He also seeks leave to join a further respondent to the proceedings and he seeks orders for discovery.
The applicant’s principal proceedings arise out of what he says was an employment relationship and his case is that the employer breached the Fair Work Act 2009 (Cth) in a number of respects as well as breaching other duties that it owed to him.
The amendments that he wishes to effect to the statement of claim cover a number of matters. They are to include some statutory references, which is, it seems to me, not particularly objectionable. It is also to change in a fundamental way parts of his claim. In his pleading as it presently stands, he alleges that his employer was liable to pay him money for his work and the money liable to be paid is described in various ways or in various categories. And, by and large – although not entirely – his claim was that that money was paid.
One of the amendments that he wishes to effect is to change that plea to allege that he was not paid at all, and it arises in this way: he says that, despite having received money for his remuneration, paid by his employer as he would expect, the money that he received was paid by a third party; another entity which was not his employer.…

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 Gambaro v Mobycom Mobile Pty Ltd

Details

AGLC: Gambaro v Mobycom Mobile Pty Ltd [2020] FCCA 121
Case: [2020] FCCA 121
Decision Date: 17 January 2020

CaseChat Overview and Summary

In the matter of *Gambaro v Mobycom Mobile Pty Ltd*, heard before Judge Jarrett in the Magistrates Court of Queensland, the applicant, Mr. Gambaro, sought to recover damages from the respondent, Mobycom Mobile Pty Ltd, for alleged breaches of contract and misleading and deceptive conduct. The dispute arose from Mr. Gambaro's purchase of a mobile phone and associated telecommunications services from Mobycom, with Mr. Gambaro alleging that the services provided did not match the representations made by Mobycom at the time of sale.

The court was required to determine whether Mobycom had breached its contractual obligations to Mr. Gambaro by failing to provide the agreed-upon telecommunications services. Furthermore, the court had to consider whether Mobycom's conduct in marketing and selling the mobile phone and services constituted misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)).

Judge Jarrett found that Mobycom had indeed breached its contractual obligations and engaged in misleading and deceptive conduct. The court reasoned that the evidence presented demonstrated a clear disparity between the services Mobycom represented to Mr. Gambaro and the services actually provided. This disparity, coupled with Mobycom's failure to rectify the situation, led the court to conclude that Mobycom had not acted in good faith and had misled Mr. Gambaro regarding the capabilities and performance of the telecommunications plan. The court applied principles of contract law concerning the terms of agreement and the implied duty of good faith, as well as the provisions of consumer protection legislation prohibiting misleading and deceptive conduct.

Consequently, the court ordered Mobycom Mobile Pty Ltd to pay damages to Mr. Gambaro in an amount to be assessed, reflecting the losses suffered as a result of the breaches and misleading conduct.

Orders