FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEBBARD v BELL POTTER SECURITIES LTD | [2005] FMCA 467 |
| TRADE PRACTICES – Summary dismissal – whether jurisdiction to hear and determine claim arising out of employer/employee correspondence – where no claim under s.52 of Trade Practices Act then no associated/accrued jurisdiction. |
Trade Practices Act 1975, s.52
Federal Magistrates Court Rules 2001, r.13.09, 13.10(a)
Federal Magistrates Act 1999, ss.10(1), 18
Bank of New South Wales v Commonwealth (1948) 76 CLR 1
Prestia v Aknar (1996) 132 FLR 180
David Walker v Salomon Smith Barney Securities Pty Ltd and Anor (2003) FCA 1099
McCormick v Riverwood International (Australia)Pty Ltd (1999) 167 ALR 689
Walker v Life Span Financial Planning (2003) 176 FLR 166
Fox v Robinson [2003] FMCA 107
Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 560, 166 ALR 731
O'Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455
| Applicant: | COLIN EDWARD HEBBARD |
| Respondent: | BELL POTTER SECURITIES LTD |
| File No: | PEG 15 of 2005 |
| Delivered on: | 13 April 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 10 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T J Carmady |
| Solicitors for the Applicant: | Williams & Hughes |
| Counsel for the Respondent: | Mr T Caspersz |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application filed on 24 January 2005 be dismissed.
The Applicant shall pay the respondent's costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 15 of 2005
| COLIN EDWARD HEBBARD |
Applicant
and
| BELL POTTER SECURITIES LTD |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant by an application filed on 24 January 2005 has sought certain orders against the respondent who it is alleged engaged in misleading and deceptive conduct in contravention of s.52 of the Trade Practices Act 1975 (the TPA). The respondent by an application filed on 24 February 2005 seeks an order pursuant to rules 13.09 and 13.10(a) of the Federal Magistrates Court Rules 2001 (the rules) that the application filed on 24 January 2005 in this proceeding be dismissed. The basis of the application by the respondent for summary dismissal is that the court does not have jurisdiction to hear the application and/or that the application could properly be regarded as an abuse of process.
The applicant has filed an affidavit sworn by him on 12 January 2005 in support of the substantive application which sets out in some detail the background to the claim. For the present purposes it is sufficient to recite the facts based upon that affidavit material. The applicant deposes that the respondent is a financial adviser providing amongst other things stockbroking services to clients. Prior to 9 December 2001 the respondent was known as Johnson Taylor Potter Ltd. On 2 February 2001 the applicant deposes that he signed a written contract with the respondent. Pursuant to that contract he commenced employment on 5 February 2001. The applicant annexes to his affidavit a…
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- AGLC
- Hebbard v Bell Potter Securities Ltd [2005] FMCA 467
- Case
- [2005] FMCA 467
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the correspondence and statements made by Bell Potter Securities Ltd in response to Hebbard's employment queries could be considered as "in trade or commerce" and if such conduct could be classified under misleading or deceptive conduct as per section 52 of the Trade Practices Act. The respondent argued that the nature of the correspondence did not fit within the scope of trade or commerce, nor were the communications part of employment negotiations as defined by previous court decisions.
The court, in its reasoning, examined various judicial precedents to determine whether employment negotiations could be classified as "in trade or commerce." The court referenced cases such as David Walker v Salomon Smith Barney Securities Pty Ltd and Anor, where it was established that misleading conduct in employment negotiations could fall within the scope of section 52 of the Trade Practices Act. However, the court also noted that internal communications between employees were generally excluded. The court found that the circumstances in the present case did not align with the precedents where employment negotiations were deemed to be within trade or commerce. Consequently, the court dismissed the application, holding that the facts and correspondence in question did not constitute "in trade or commerce."
In summary, the court dismissed the application and ordered that the applicant pay the respondent's costs. This decision reinforced the distinction between internal communications and conduct genuinely associated with trade or commerce, reaffirming the narrow scope of what constitutes misleading or deceptive conduct in employment negotiations.
Orders
Orders of the court
1.
The Application filed on 24 January 2005 be dismissed.
2.
The Applicant shall pay the respondent's costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It was argued for and on behalf of the respondent that the facts and circumstances in the present case do not of themselves constitute a sufficient basis upon which the correspondence in responding to the applicant could properly be characterised as being "in trade or commerce". It was further argued that the statement relied upon by the applicant was not made in what might be described as employment negotiations. A distinction was therefore drawn between the present case and the facts and circumstances which were presented to the court in the matter of David Walker v Salomon Smith Barney Securities Pty Ltd and Anor (2003) FCA 1099 and particular reference in that case was made to the following passages:-“180 The authorities support the proposition that a statement made in the course of employment negotiations, which proves to be misleading or deceptive, can fall within s 52 of the TPA: see O'Neill v Medical Benefits Fund of Australia (2002) 122 FCR 455 per Carr, Moore and Marshall JJ; Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 ("Stoelwinder"), at 503 per Finkelstein J; and Patrick v Steel Mains Pty Ltd (1987) 77 ALR 133 ("Patrick"), at 136 per Wilcox J. 181 Whether negotiations in relation to employment contracts (with existing or prospective employees) come within the scope of s 52 depends on whether the negotiations can be characterised as being "in trade or commerce". In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 ("Concrete Constructions") Mason CJ, Deane, Dawson and Gaudron JJ held, at 603, that conduct "in trade and commerce" in s 52 refers to: ... conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. In Concrete Constructions, the Court held, at 605, that an "internal communication by one employee to another in the course of their ordinary activities" was excluded from the ambit of s 52. 182 In Patrick, Wilcox J accepted that misleading and deceptive conduct in the course of negotiations for contracts of negotiations was actionable under s 52. In Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141, French J, at 157-158, referred to Patrick with approval. In Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 ("Finucane"), at 507-8, Lockhart J held that "the activities of the Corporation in and about the conduct of interviews of Finucane [regarding the sale of an egg run] by the Corporation's officers fall within the ambit of conduct in trade and conduct within the scope of s 52 of the Act". His Honour held, at 507, that the facts of Wright (see below) were "clearly distinguishable" from the case before him: compare also Merman Pty Ltd v Cockburn Cement (1988) 84 ALR 521 ("Merman") at 530-531 per Lee J and Callinan v Gilro-ERG Pty Ltd [1996] FCA 986 ("Callinan v Gilro-ERG") per O'Loughlin J. 183 Wilcox J's decision in Patrick was not followed by Lee J in Wright v TNT Australia Pty Ltd (1988) 15 NSWLR 662, at 676. Whilst an appeal from his Honour's decision failed, the Court of Appeal rejected his Honour's characterisation of negotiations for employment: see Wright v TNT Australia Pty Ltd (1988) 15 NSWLR 679, at 683 and 685 per Mahoney JA, 693-695 per McHugh JA (dissenting) and 697 per Clarke JA. In his dissenting judgment, McHugh JA observed, at 694:No doubt as Lockhart J observed in Finucane (at 507...) it may be that not everything done by a corporation that is engaged in trade or commerce is done "in" trade or commerce. But everything done for the purpose of carrying out its trading or commercial activities is in my opinion done as part of a corporation's trade or commerce. The employment of staff for the purpose of carrying out its trading and commercial activities is in my opinion near the centre of a corporation's trade and commerce. Those concepts do not exist independently of the sum of the activities of the corporation and individuals who engage in them. [Emphasis added] 184 In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 at 395, Wilcox J adhered to the approach that he had taken in Patrick: compare McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689, at 694-6 per Weinberg J and Nagy v Masters Dairy Ltd (1996) 150 ALR 273, at 294-5 per RD Nicholson J. In Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170, at 213 and Martin v Tasmania Development and Resources (1999) 163 ALR 79, at 97-98, Heerey J adopted a more restrictive approach than Wilcox J, although it may be noted that neither of these cases involved negotiations for employment contracts. 185 Having regard to the authorities mentioned above, I accept that misleading and deceptive conduct in the course of negotiations for employment may support a cause of action under s 52 of the TPA.”