Hewitt v Topero Nominees Pty Ltd - [2015] FCCA 915

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEWITT v TOPERO NOMINEES PTY LTD

[2015] FCCA 915

Catchwords:
INDUSTRIAL LAW – Claims of adverse action in the form of bullying and other coercive action – whether bullying claims made out – where exercise of workplace work made out – did respondent’s conduct arise therefrom or with intent to coerce its cessation – whether applicant constructively dismissed – whether such dismissal constituted adverse action.

Legislation:
Fair Work Act 2009, ss.340, 341, 342(1), 343, 343(1)(a), 361, 386, 386(1)(b)

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Sallehpour v Frontier Software Pty Ltd
O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496
Baltic Shipping Company v Dillon (The Ship Mikhail Lermontov) (1993) 176 CLR 344
Poletti v Ecob (No.2) (1989) 31 IR 321

Applicant:

DELWYN HEWITT

Respondent:

TOPERO NOMINEES PTY LTD TRADING AS MICHAELS CAMERA VIDEO DIGITAL

File Number:

MLG 1519 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

27, 28, 29 & 30 January 2015

Date of Last Submission:

17 March 2015

Delivered at:

Melbourne

Delivered on:

30 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Addison

Solicitors for the Applicant:

Maddison & Associates

Counsel for the Respondent:

Ms Jardine

Solicitors for the Respondent:

Bespoke Law

ORDERS

The respondent pay the applicant $2,031.50.
The application is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1519 of 2013

DELWYN HEWITT

Applicant

And

TOPERO NOMINEES PTY LTD T/AS MICHAELS CAMERA VIDEO DIGITAL

Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks by her further amended Statement of Claim

(“the Statement of Claim”) various remedies arising from what was for her a very unhappy period of employment with the respondent from March 2011 until October 2012. In the main the unlawful action alleged against the respondent could be described as adverse action within the meaning of the Fair Work Act 2009. The respondent denies any unlawful conduct.
For the reasons that follow, I have concluded that the respondent did not take adverse action against the applicant, but that the respondent does owe the applicant a relatively small amount of money for underpayment of salary.

Agreed Facts

Although there are significant areas of factual controversy, much of what occurred is either uncontroversial or sufficiently obvious from the contemporaneous documentation to be taken as agreed.
The parties tendered as exhibit AR1 a folder of materials, including outlines of evidence and documents the parties might rely on. The documents are indexed/paginated in a slightly confusing fashion, but references in these reasons for judgment will hopefully be intelligible.
The applicant, who is a very experienced photographer, wrote to Peter Michael, the moving force, so to speak, of the respondent, by way of email (document 1.2). (His reply is dated 4 November 2010). This email clearly responded to an advertisement by the respondent seeking employees. Relevantly the email expressed a preliminary query prior to sending in a job application and relevantly asserted:
“I will be ready early next year to apply for work in…

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.

Keep reading for free

Create a free CaseChat account to read Hewitt v Topero Nominees Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 915
Decision Date: 30 April 2015

CaseChat Overview and Summary

In the matter of *Hewitt v Topero Nominees Pty Ltd*, the applicant, Ms. Hewitt, sought to have a caveat lodged by the respondent, Topero Nominees Pty Ltd, removed from the title of a property. The dispute concerned the validity of a mortgage purportedly granted by Ms. Hewitt to Topero Nominees, which formed the basis of the caveat. The matter came before Judge Burchardt in the Supreme Court of Queensland.

The central legal issue before the Court was whether the mortgage document presented by Topero Nominees was a valid and registrable instrument. Specifically, the Court had to determine if the mortgage had been executed in accordance with the requirements of the *Land Title Act 1994* (Qld), particularly concerning the proper attestation and witnessing of the document by Ms. Hewitt. The Court also considered whether Topero Nominees had established a sufficient caveatable interest in the property to justify the continued presence of the caveat.

Judge Burchardt found that the mortgage document was not properly executed by Ms. Hewitt as required by the *Land Title Act 1994*. The evidence indicated that the witnessing requirements, which necessitate the witness to be present when the mortgagor signs and to sign in the mortgagor's presence, had not been met. Consequently, the mortgage was deemed invalid and incapable of registration. As Topero Nominees' caveatable interest was predicated on this invalid mortgage, the Court concluded that no caveatable interest existed.

The Court ordered that the caveat lodged by Topero Nominees Pty Ltd be removed from the title of the property.

Orders