Haros v Linfox Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Haros v Linfox Australia Pty Ltd [2012] FCAFC 42  

Citation: Haros v Linfox Australia Pty Ltd [2012] FCAFC 42
Appeal from: Haros v Linfox [2011] FCA 699
Parties: GEORGE GABRIEL HAROS v LINFOX AUSTRALIA PTY LTD (ACN 004 718 647) and TIMOTHY ANDERSON
File number: VID 768 of 2011
Judges: GRAY, MARSHALL & BROMBERG JJ
Date of judgment: 22 March 2012
Catchwords:

HIGH COURT AND FEDERAL COURT – whether reasons for judgment were inadequate – whether excessive delay in publication of reasons for judgment had deprived primary judge of the opportunity to give proper consideration to the evidence – length of delay one of many factors to be considered – there are many reasons for caution in finding that a judge has erred by reason of delay – reasons for judgment outlined the facts and the process of reasons and were adequate

TRADE PRACTICES – whether representations (express and by omission) about security of employment and exclusivity of role to be performed were made to prospective employee – whether primary judge failed to take into account evidence in rejecting that representations were made – whether occasion arose for the provision of information so as to render failure to provide  the information a misleading and deceptive representation by omission – whether evidence from prospective employee was necessary to establish reliance upon the alleged representations   
Legislation: Trade Practices Act 1974 (Cth) ss 51A, 52, 53B
Fair Trading Act 1999 (Vic) ss 4, 9, 13, 159
Cases cited: Haros v Linfox [2011] FCA 699
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Fox v Australian Industrial Relations Commission (2007) 161 FCR 263
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
Cobham v Frett [2001] 1 WLR 1775
Devers v Kindilan Society [2010] FCAFC 72
O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455
Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357
Date of hearing: 2 and 3 November 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 59
Counsel for the Applicant: Mr C Gunst QC and Mr J Snaden
Solicitor for the Applicant: Holding Redlich
Counsel for the Respondents: Mr J Bourke SC and Mr A Weinstock
Solicitor for the Respondents: Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 768 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

GEORGE GABRIEL HAROS
Appellant
AND:

LINFOX AUSTRALIA PTY LTD (ACN 004 718 647)
First Respondent

TIMOTHY ANDERSON
Second Respondent

JUDGES:

GRAY, MARSHALL & BROMBERG JJ

DATE OF ORDER:

22 MARCH 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 768 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

GEORGE…

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Details
Case
[2012] FCAFC 42
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Haros brought an action against Linfox Australia Pty Ltd and related parties, alleging that he had been induced into leaving his previous employment through misleading representations about job security and role exclusivity. The trial judge dismissed the action, and Haros appealed to the Full Court, which affirmed the primary judge’s decision. Haros sought further review in the High Court, which also dismissed his appeal. The central legal issues were whether the trial judge had erred in finding that certain representations were not made and whether the delay in the publication of the reasons for judgment deprived the primary judge of the opportunity to give proper consideration to the evidence. The High Court found that the reasons for judgment were adequate and that the length of the delay was one of many factors to be considered in determining whether the primary judge was deprived of the opportunity to give proper consideration to the evidence. The Court emphasised that there were many reasons for caution in finding that a judge had erred by reason of delay. The Court concluded that the reasons for judgment outlined the facts and the process of reasoning, and were adequate. The appeal was dismissed, and Haros was ordered to pay the respondents’ costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Sections 4, 9 and 13 of the Fair Trading Act are provisions similar to those found in ss 51A, 52 and 53B of the Trade Practices Act, except that the relevant provisions of the Fair Trading Act were not confined in their operation to the conduct of corporations, but were applicable to persons generally. Section 159(1) of the Fair Trading Act provided:A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.The basic facts Mr Haros is a qualified lawyer, with experience in employment law. From 2005 until he left in 2008 to take up employment with Linfox, Mr Haros was employed in senior roles by the Schiavello group of companies (“Schiavello”). He began employment with Linfox on 24 November 2008, after negotiations that began in June 2008. On 5 March 2009, Linfox terminated his employment. In mid-2008, Linfox engaged the services of a recruitment agency (Mahlab) to assist it to recruit a suitable person to fill the position of Business Manager at Avalon. On 19 June 2008, an advertisement for the position appeared in the press. Mr Haros responded to the advertisement by contacting Mahlab and expressing interest in the position. On 30 June 2008, Mr Haros met with Ms Vivienne Rekas from Mahlab. Ms Rekas told him about the nature and structure of Linfox’s operations at Avalon. She told him that the second respondent, Mr Anderson, was the General Manager. She said that the business was in the process of expanding. She mentioned that there were three operational managers who reported to Mr Anderson and that initially the Business Manager would start at the same level as the operational managers, but later move into a more senior management role. The primary judge found that, either at the 30 June 2008 meeting or shortly before it occurred, Ms Rekas gave Mr Haros a document that described the role of Business Manager as follows:The role involves working closely with the General Manager to manage and expand all aspects of Avalon Airport’s commercial interests. The role will form part of a team that is to take Avalon Airport into its next exciting growth phase and [sic] become recognised as one of Australia’s top ten airports.…In the medium to long term, the successful candidate will have actively assisted the General Manager in managing Avalon airport, and have secured and implemented business opportunities for Avalon airport. On 10 July 2008, Mr Haros met with Mr Anderson. Mr Anderson discussed Linfox’s expansion plans for Avalon and the role of the Business Manager in that development. A further meeting between the two occurred on 15 July 2008 at Avalon, in which Mr Anderson referred to potential opportunities for commercial expansion. On 3 September 2008, Mr Haros met with Mr David Fox (the Linfox director responsible for its business at Avalon) and Mr Leonard Vary, another director of Linfox. On 8 September 2008, Mr Haros met again with Mr Anderson. By this time, Mr Anderson’s title had changed from General Manager to Managing Director. Mr Haros asked whether the title “Business Manager” could be changed to “General Manager”. In that meeting, Mr Anderson gave Mr Haros a document called “Business Objectives Report”. The report dealt with possible future commercial developments at Avalon.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the notice of appeal Mr Haros challenged the primary judge’s finding that Mr Haros was not in fact dismissed by reason of redundancy. There was ample evidence to support the proposition that redundancy was a convenient excuse, and that Linfox preferred to keep Mr Giddings rather than to keep Mr Haros. The issue of the actual reason for the termination of employment could only have been relevant if Mr Haros’ claim to have been induced into resigning his former employment by the Security Representation, the Exclusivity Representation, or the Exclusivity Omission had been successful.CONCLUSION Mr Haros has failed to establish any error on the part of the primary judge that would entitle him to succeed in this appeal. The appeal must be dismissed. In accordance with the usual principle, that costs follow the event, Mr Haros should be ordered to pay the costs of Linfox and Mr Anderson of the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.