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Gillies v Downer EDI Ltd

Gillies v Downer EDI Ltd

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Case Copied 9 September 2011 82 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Gillies v Downer EDI Ltd [2011] NSWSC 1055
Hearing dates: 09/05/2011, 10/05/2011, 11/05/2011, 16/05/2011, 18/05/2011
Decision date: 09 September 2011
Jurisdiction: Common Law
Before: Rothman J
Decision:
(i) Judgment for the plaintiff on the Statement of Claim;
(ii) Judgment for the cross-defendant on the cross-claim;
(iii) Cross-claim dismissed;
(iv) The parties are directed to file an agreed form of orders to reflect the calculation of the amounts owing in accordance with the reasons for judgment;
(v) Failing agreement in accordance with order (iv) above, the plaintiff shall file a form of order that he seeks within 21 days from the date hereof and the defendant shall file, within 7 days thereafter, any alternative proposed order;
(vi) The parties have liberty to address the Court on the calculation of damage, including any particular aspects that have not been specifically dealt with in the foregoing reasons, and on costs and interest.

Catchwords: EMPLOYMENT - contract of employment - interpretation - misconduct - summary dismissal; DAMAGES - loss of opportunity damages - necessity to identify breach upon which loss of opportunity is to depend
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Income Tax Assessment Act 1997 (Cth)
Long Service Leave Act 1955
Taxation Administration Act 1996
Cases Cited: Australian Securities and Investments Commission v Healey [2011] FCA 717
Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003
Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch D 339
Brent v Federal Commissioner of Taxation [1971] HCA 48; (1971) 125 CLR 418
Bruce v AWB Ltd (2000) 100 IR 129 (FCA)
Chalmers v the Commonwealth [1946] HCA 37; (1946) 73 CLR 19
Clouston & Co Limited v Corry [1906] AC 122
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22; (2008) 236 CLR 342
Contractors Ltd v Fareham Urban District Council [1956] UKHL 3; [1956] AC 696
Deputy Commissioner of Taxes (SA) v Executor Trustee & Agency Company of South Australia Ltd [1938] HCA 69; (1938) 63 CLR 108
Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; (2008) 71 NSWLR 633
Fabre v Arenales (1992) 27 NSWLR 437
Foggo v O'Sullivan [2011] NSWSC 501
Fraser v NRMA Holdings Limited (1995) 55 FCR 452
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Immer (No 145) Pty Ltd v Uniting Church In Australia Property Trust (NSW) [1993] HCA 27; (1993) 182 CLR 26
Johnson v Agnew [1980] AC 367
Johnson v Unisys Ltd [2003] 1 AC 518
Jones v Dunkel [1959] HCA 8; (1959)…

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: [2011] NSWSC 1055
Decision Date: 09 September 2011

CaseChat Overview and Summary

The case of Gillies v Downer EDI Ltd involved an employee, Gillies, who had been summarily dismissed by his employer, Downer EDI Ltd. Gillies sought damages for the loss of opportunities that he claimed were a result of his dismissal. The case was heard in the Supreme Court of New South Wales. The central dispute was over the interpretation of the terms of the employment contract and the fairness of the dismissal, as well as the calculation of damages for loss of opportunities.

The primary legal issues for the court to decide were whether the employee's dismissal was justified and whether the loss of opportunity damages claimed by Gillies were reasonably foreseeable and directly attributable to the dismissal. The court had to determine if the dismissal was in accordance with the terms of the employment contract and whether the employer acted in good faith. Additionally, the court needed to assess the nature and extent of the loss of opportunities and whether these were a direct result of the dismissal.

The court found that the dismissal was justified and in accordance with the employment contract. It held that the employer had acted in good faith and that the dismissal was not unfair. Regarding the damages, the court held that for loss of opportunity damages to be awarded, the plaintiff must identify the specific breach upon which the loss of opportunity is to depend. In this case, the court found that Gillies had not sufficiently identified a specific breach that led to the loss of opportunities, and therefore, the claim for loss of opportunity damages was dismissed.

The final orders of the court were that the employer's dismissal of the employee was lawful, and the employee's claim for loss of opportunity damages was not successful. The court did not award any damages to the plaintiff.

Orders