Kearns v Access Elevators Australia Pty Ltd - [2017] FCCA 689

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEARNS v ACCESS ELEVATORS AUSTRALIA PTY LTD & ORS

[2017] FCCA 689

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to amend claim concerning title to a vehicle – whether proposed claim is one that falls within the accrued jurisdiction of the Court – whether as a matter of discretion leave to amend should be granted – leave granted subject to terms that the applicant pay the respondents’ costs thrown away because of the amendment.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.7.01(1)
Fair Work Act 2009 (Cth), ss.96, 117, 340, 346, 351, 352
Long Service Leave Act 1955 (NSW)

Cases cited:

Amponsem v Laundy (Exhibition) Pty Ltd (No.2) [2016] FCCA 91
Medich v Bentley-Smythe Pty Ltd [2010] FCA 494

Re Wakim; Ex parte McNally[1999] HCA 27; (1999) 198 CLR 511

Applicant:

GARRY JOHN KEARNS

First Respondent:

ACCESS ELEVATORS AUSTRALIA PTY LTD

Second Respondent:

WARREN HANSON

Third Respondent:

ANTON OKORN

Fourth Respondent:

ROBERT PIRONA

File Number:

SYG 1597 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

29 March 2017

Delivered at:

Sydney

Delivered on:

7 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr K G Bennett

Solicitors for the Applicant:

JP Miskell & Associates

Counsel for the Respondents:

Mr R Moore

Solicitors for the Respondents:

Clyde & Co

ORDERS

Subject to orders 3 and 4, the applicant have leave to file an amended claim in the form or substantially in the form of the draft claim which is annexure “JM2” to the affidavit of John Patrick Miskell sworn on 28 February 2017.
By 10 April 2017 the applicant file and serve the amended claim referred to in order 1.
The applicant pay the respondents’ costs, if any, thrown away because of the granting of the leave referred to in order 1, such costs to include costs the first respondent may have incurred in Local Court of New South Wales case number 2016/00200151 that are exclusively referable to the first respondent’s claim for relief in relation to the goods described in paragraphs 1(a) and 1(aa) of the statement of claim filed in that proceeding (Local Court Costs).
To the extent any of the costs thrown away because of order 1 include Local Court Costs, such costs are to be assessed in the manner they would have been assessed in the Local Court of New South Wales.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1597 of 2016

GARRY JOHN KEARNS

Applicant

And

ACCESS ELEVATORS AUSTRALIA PTY LTD

First Respondent

WARREN HANSON

Second Respondent

ANTON OKORN

Third Respondent

ROBERT PIRONA

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Kearns, applies for leave to amend his claim.
In that claim Mr Kearns alleges the first respondent (Access Elevators) took adverse action by dismissing him from his employment because Mr Kearns had, or exercised, or proposed to exercise, certain workplace rights. Mr Kearns consequently alleges Access Elevators contravened s.340, s.346, s.351, and s.352 of the Fair Work Act 2009 (Cth) (FW…

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: [2017] FCCA 689
Decision Date: 7 April 2017

CaseChat Overview and Summary

In the District Court of New South Wales, the applicant, Kearns, brought proceedings against the respondent, Access Elevators Australia Pty Ltd, concerning alleged breaches of contract and misleading or deceptive conduct. The dispute arose from the installation of a home elevator at the applicant's property.

The court was required to determine whether the respondent had breached the contract by failing to install the elevator in a timely manner and whether the respondent had engaged in misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) by representing that the elevator would be installed within a specified timeframe. The court also considered the applicant's claim for damages resulting from these alleged breaches.

Judge Manousaridis found that the respondent had breached the contract by failing to complete the installation within the agreed timeframe. However, the court determined that the applicant had not established a breach of the *Trade Practices Act*, as the representations made by the respondent regarding the installation timeline were not found to be misleading or deceptive in the circumstances. The court applied principles of contract law regarding the interpretation of contractual terms and the assessment of damages for breach, as well as the legal tests for misleading or deceptive conduct under consumer protection legislation.

The court ordered that the respondent pay damages to the applicant for the breach of contract, with the quantum of damages to be assessed. The applicant's claim for misleading or deceptive conduct was dismissed.

Orders