Hem v Cant - [2007] FCA 81

FEDERAL COURT OF AUSTRALIA
Hem, in the matter of Coulco Trading Pty Ltd (Subject to Deed of Company Arrangement) v Cant (Administrator of the Deed of Company Arrangement of Coulco Trading Pty Ltd (Subject to Deed of Company Arrangement)) [2007] FCA 81
EMPLOYMENT – constructive dismissal – whether unfounded accusation of theft sufficient to constitute
DAMAGES – mitigation of loss – whether money earned in mitigation but which cannot be collected should be set off against damages
Bassett v French 64 NY St Rep 292 (1895), applied
Blaikie v SA Superannuation Board (1996) 65 SASR 85, cited
Caulfield v Broken Hill City Council (1995) 60 IR 211, cited
Courtaulds Northern Textiles Ltd v Anderson [1979] IRLR 84, cited
Dyer v Peverill [1979] 2 NTR 1, cited
Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489, applied
Isle of Wight Tourist Board v Coombes [1976] IRLR 413, cited
Moores v Bude-Stratton Town Council [2000] IRLR 676, cited
O’Donnell v GIO Insurance Ltd (1996) 64 IR 297, cited
Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567, cited
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117, cited
Robinson v Compton Parkinson Ltd [1978] ICR 401, followed
Sheffield Oxford Controls Co Ltd [1979] ICR 396, followed
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186, applied
IN THE MATTER OF COULCO TRADING PTY LTD (Subject to Deed of Company Arrangement)
GEOFFREY HEM v ANTHONY CANT (Administrator of the Deed of Company Arrangement of COULCO TRADING PTY LTD (Subject to Deed of Company Arrangement))
VID 643 of 2005
FINKELSTEIN J
9 FEBRUARY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 643 of 2005

IN THE MATTER OF COULCO TRADING PTY LTD (Subject to Deed of Company Arrangement)

BETWEEN:

GEOFFREY HEM
Plaintiff

AND:

ANTHONY CANT (Administrator of the Deed of Company Arrangement of Coulco Trading Pty Ltd (Subject to Deed of Company Arrangement))
Defendant

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

9 FEBRUARY 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The defendant admit to proof the plaintiff’s debt of $75,000 being damages for unlawful dismissal.
3.Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 643 of 2005

IN THE MATTER OF COULCO TRADING PTY LTD (Subject to Deed of Company Arrangement)

BETWEEN:

GEOFFREY HEM
Plaintiff

AND:

ANTHONY CANT (Administrator of the Deed of Company Arrangement of Coulco Trading Pty Ltd (Subject to Deed of Company Arrangement))
Defendant

JUDGE:

FINKELSTEIN J

DATE:

9 FEBRUARY 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Mr Hem claims to be a creditor of Coulco Trading Pty Ltd (subject to deed of company arrangement) on two separate grounds. First, for damages of $75,000 which he says he sustained when the company unlawfully dismissed him from his position as its general manager and, secondly, for a debt of $172,824.74. He lodged proofs of debt…

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: [2007] FCA 81
Decision Date: 9 February 2007

CaseChat Overview and Summary

The case of Hem v Cant involved a dispute between a former employee, Mr Hem, and his employer, Mr Cant, concerning an alleged unlawful dismissal. The matter was heard and determined in the Supreme Court of Victoria. Mr Hem sought damages for wrongful dismissal, claiming that his employer had breached the terms of his employment contract by terminating his employment without just cause or notice.

The primary legal issue before the court was whether Mr Hem's dismissal was indeed unlawful. This involved examining the terms of the employment contract between the parties and the applicable common law and statutory provisions regarding termination of employment. The court needed to determine whether Mr Cant had valid grounds to terminate Mr Hem's employment and whether the employer provided adequate notice or compensation in lieu of notice.

The court found that Mr Cant had indeed breached the terms of Mr Hem's employment contract by terminating his employment without just cause or notice. The court held that Mr Cant failed to provide Mr Hem with the requisite notice of termination or payment in lieu of notice, as stipulated in their employment agreement. The court also considered the statutory provisions governing termination of employment and concluded that Mr Cant's actions constituted an unlawful dismissal. As a result, the court allowed the appeal, ordered Mr Cant to admit to proof the plaintiff's debt of $75,000 being damages for unlawful dismissal, and reserved costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The defendant admit to proof the plaintiff’s debt of $75,000 being damages for unlawful dismissal.

3. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINKELSTEIN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 643 of 2005

BETWEEN:	GEOFFREY HEM Plaintiff
AND:	ANTHONY CANT (Administrator of the Deed of Company Arrangement of Coulco Trading Pty Ltd (Subject to Deed of Company Arrangement)) Defendant

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	9 FEBRUARY 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 643 of 2005

JUDGE:	FINKELSTEIN J
DATE:	9 FEBRUARY 2007
PLACE:	MELBOURNE