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Keldote Pty Ltd v Riteway Transport Pty Ltd

Keldote Pty Ltd v Riteway Transport Pty Ltd

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Case Copied 16 June 2010 78 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

KELDOTE PTY LTD & ORS v RITEWAY TRANSPORT PTY LTD

[2010] FMCA 394

INDUSTRIAL LAW – Independent Contractors Act 2006 – jurisdiction to review services contract which is no longer on foot when application is filed – power to vary services contract which is no longer on foot when application is filed.

INDUSTRIAL LAW – Breach of contract – contract varied with retrospective effect by Court’s order pursuant to Independent Contractors Act 2006 – alleged breach occurred after retroactive date of variation but before order for variation pronounced – whether there could be a breach of contract in such circumstances.

INDUSTRIAL LAW – Breach of a contract varied under Independent Contractors Act 2006 – nature of relief available.

INDUSTRIAL LAW – Contract for services – repudiatory breach – distinction between termination of services and termination of contract.

INDUSTRIAL LAW – Contract terminable on reasonable notice – purported acceptance of non-existent repudiation cannot amount to notice to terminate contract within a reasonable time.

CONTRACT – Contract for services – contract of indefinite duration – implication of term implying right to terminate on reasonable notice – identification of reasonable period of notice – relevant considerations –contractual relationship similar to an employment relationship – criteria related to concepts of severance and redundancy not relevant considerations.

DAMAGES – Contract for services – breach of contract – damages for failure to give reasonable notice of termination.

DAMAGES – Breach of contract – damages in the reasonable contemplation of the parties at the time of making the contract as the probable result of the breach.

JURISDICTION – “matter” – express jurisdiction under Independent Contractors Act 2006 – accrued jurisdiction – claim under Independent Contractors Act 2006 and related claim for damages comprised the same matter – associated jurisdiction – claim for damages consequent upon contractual

variation pursuant to Independent Contractors Act 2006 a federal matter associated with claim under the Independent Contractors Act 2006.

PRACTICE AND PROCEDURE – Amendment of claim to include cause of action accruing after commencement of proceedings – date amendment effective.

The Constitution, ss.75, 76, 77
Independent Contractors Act 2006, ss.12, 15, 16
Industrial Relations Act 1988, ss.127A, 127B
Workplace Relations Act 1996, ss.127A, 127B
Industrial Arbitration Act 1940 (NSW), s.88F
Industrial Relations Act 1996 (NSW), s.106
Federal Magistrates Act 1999, ss.10, 15, 18
Trade Practices Act 1974, ss.45, 52, 53, 71, 82, 87
Judiciary Act 1903, ss.39B, 40
Federal Court of Australia Act 1976, s.32
Family Law Act 1975, s.33
Corporations Law
Administrative Decisions (Judicial Review) Act 1977
Designs Act 1906
Trade Marks Act 1955

Federal Magistrates Court Rules 2001, r.7.01
Federal Court Rules 1979, orders 13 r.2, 13 r.3A

Keldote Pty Ltd v Riteway Transport Pty Ltd (2008) 176 IR 316
Keldote Pty Ltd v Riteway Transport Pty Ltd (2009) 185 IR 155
Harding v EIG Ansvar Ltd (2000) 95 IR 349
Buchmueller v Allied Express Transport Pty Ltd (1999) 88 IR 465
Re…

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: [2010] FMCA 394
Decision Date: 16 June 2010

CaseChat Overview and Summary

Keldote Pty Ltd sought relief from the Fair Work Australia Commission against Riteway Transport Pty Ltd. The dispute involved the interpretation and application of the Independent Contractors Act 2006 in the context of a services contract, which had ceased to be in effect at the time the application was filed. The case also included claims for damages arising from alleged breaches of the contract.

The key legal issues before the Commission were whether it had jurisdiction to review a contract that had already terminated and to vary such a contract with retrospective effect, and if a breach of contract could occur after the retroactive date of variation but before the order for variation was made. Additionally, the court had to determine the nature of relief available for a breach of a contract that had been varied under the Independent Contractors Act 2006. The case further explored the distinction between termination of services and termination of contract, particularly in the context of a contract terminable on reasonable notice.

The Commission held that it had jurisdiction to review the terminated contract and to vary it with retrospective effect, as the claim for variation and the related damages claim constituted the same matter. It further found that a breach of contract could occur even if the alleged breach took place after the retroactive date of variation but before the order for variation was pronounced. The Commission also clarified that a purported acceptance of a non-existent repudiation could not constitute notice to terminate the contract within a reasonable time. In terms of relief, the court determined that for a contract of indefinite duration, the reasonable notice period should be assessed based on criteria relevant to a contractual relationship akin to an employment relationship, excluding severance and redundancy considerations. The court awarded damages for the failure to provide reasonable notice of termination, calculated as the amount that would have been earned during the reasonable notice period.

The Fair Work Australia Commission made several orders, granting judgments in favour of Keldote Pty Ltd in three separate proceedings, with specified amounts of damages awarded.

Orders

Orders of the court

In proceeding SYG 2353 of 2007

Judgment for the applicant for $39,072.12.

In proceeding SYG 2354 of 2007

Judgment for the applicant for $36,788.68.

In proceeding SYG 2431 of 2007

Judgment for the applicant for $48,205.87.

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

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