Heriot v Sayfa Systems Pty Limited - [2014] FCCA 1622

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERIOT v SAYFA SYSTEMS PTY LIMITED

[2014] FCCA 1622

Catchwords:
INDUSTRIAL LAW – General protections court application under Fair Work Act 2009 – application to have applicant’s claim dismissed on basis of no case to answer – application refused.

Legislation:

Disability Discrimination Act1992
Fair Work Act 2009, ss.342, 342(1), 351, 351(1), 351(2), 351(3), 352, 361, 361(1)

Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490

Applicant:

DAVID HERIOT

Respondent:

SAYFA SYSTEMS PTY LIMITED
(ACN 631 210 199)

File Number:

MLG 1236 of 2013

Judgment of:

Judge Jarrett

Hearing date:

21 July 2014

Date of Last Submission:

21 July 2014

Delivered at:

Melbourne

Delivered on:

21 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Addision

Solicitors for the Applicant:

Maddison & Associates

Counsel for the Respondent:

Mr McNabb

Solicitors for the Respondent:

Wotton & Kearney Insurance Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1236 of 2013

DAVID HERIOT

Applicant

And

SAYFA SYSTEMS PTY LIMITED (ACN 631 210 199)

Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application by the respondent to have the applicant’s claim dismissed on the basis that the respondent has no case to answer.
When I returned to court after the morning tea break, the respondent foreshadowed the application, but was uncertain whether the respondent would proceed with the application in circumstances where it did not know whether I would put the respondent to its election if it made the application. The election is the election to either make the no case submission and not lead further evidence in the proceedings, or to not make the no case submission and to conduct its case in the usual manner.
I indicated that I would require an election. There was no attempt to persuade me to the contrary. At that point, there was a short adjournment, after which the respondent informed me that it pressed the application that it has no case to answer notwithstanding it was required to elect not to go into evidence.
The respondent’s position is this: it says, first of all, the applicant cannot establish that there was adverse action taken against him because, in truth, there was a mutual termination of the applicant’s employment with the respondent, a resignation, if you will, rather than the type of action contemplated by s.342 of the Fair Work Act2009. The respondent argues that exhibit 3, the letter in which the termination agreement is contained, is consistent with that, and that being unable to establish that the respondent took any adverse action against him the applicant’s claim must fail.
Secondly, the respondent argues that in any event, even if adverse action was taken against the applicant, it was not for the reason relied upon by the applicant and which is proscribed by the Fair Work Act, because the applicant was encouraged to take sick leave, rather than punished because he took it.
The application has been conducted on pleadings. There is a statement of…

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: [2014] FCCA 1622
Decision Date: 21 July 2014

CaseChat Overview and Summary

Heriot (the applicant) brought proceedings against Sayfa Systems Pty Limited (the respondent) in the Federal Court of Australia. The dispute concerned the respondent's alleged contravention of section 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The applicant sought an injunction and damages.

The primary legal issue before the court was whether the respondent's conduct in marketing and selling its security camera systems constituted misleading or deceptive conduct under the ACL. Specifically, the court had to determine if representations made by the respondent regarding the capabilities and performance of its products were false or likely to mislead consumers.

Jarrett J found that the respondent had engaged in misleading and deceptive conduct in contravention of section 18 of the ACL. His Honour reasoned that the representations made by the respondent concerning the "all-weather" capabilities and the effectiveness of its camera systems in various lighting conditions were not substantiated by the evidence. The court applied the established legal principles for assessing misleading or deceptive conduct, which involve considering the likely effect of the representations on the target audience, and whether those representations were factually accurate. The applicant was successful in establishing the contravention.

Orders