Kent v Tal & Ors - [2018] FCCA 3218

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENT v TAL & ORS

[2018] FCCA 3218

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Storage Service and Wholesale Award 2010 – consideration of proper respondent in the proceedings – consideration of applicable award – unpaid overtime and weekend penalty rates – unpaid annual leave entitlements and annual leave loading – scope of small claims jurisdiction.

Legislation:

Fair Work Act 2009, ss.90(2), 325, 548

Fair Work Regulations 2009, reg.4.01

General Retail Industry Award 2010

Storage Service and Wholesale Award 2010, cls.12, 22, 24, 26

Cases cited:

Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry [2015] FCAFC 99

Textile Clothing and Footwear Union of Australia v Givoni [2002] FCA 1406

Applicant:

NEHA KENT

First Respondent:

SHMUEL TAL

Second Respondent:

YOSSI ALIA

Third Respondent:

T2M FASHION PTY LTD T/AS
GOD MADE ME FUNKY

File Number:

MLG 2830 of 2017

Judgment of:

Judge Mercuri

Hearing date:

4 June 2018

Date of last submission:

4 June 2018

Delivered at:

Melbourne

Delivered on:

9 November 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the respondents:

In person

Solicitors for the respondents:

None

ORDERS

T2M Fashion Pty Ltd trading as ‘God Made Me Funky’ be added as the third respondent to these proceedings.
The parties have liberty to apply with respect to order (1) herein within 7 days of these orders and prior to order (3) herein coming into effect.
If no application is made under order (2) above;
(a)within 21 days of the making of these orders, the third respondent pay to the applicant:
(i)the sum of $8,399.49 in lieu of unpaid overtime and weekend penalty rates; and
(ii)the sum of $582.73 in respect of annual leave loading; and
(b)the application against the first and second respondents be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2830 OF 2017

NEHA KENT

Applicant

And

SHMUEL TAL

First Respondent

YOSSI ALIA

Second Respondent

T2M FASHION PTY LTD T/AS GOD MADE ME FUNKY

Third Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks orders for payment of various entitlements arising from her employment as an account manager with ‘God Made Me Funky’.
The application was brought in the court’s small claims jurisdiction and, as such, is regulated by the provisions in Division 3 of Part 4.1 of the

Fair Work Act 2009
(Cth) (“the FW Act”) and Regulation 4.01 of the

Fair Work Regulations 2009
(“FW Regulations”).
Neither party was legally represented although, by leave of the court, the applicant was assisted by her fiancé.

Background

The applicant was employed as an account manager from 11 July 2016. She tendered her resignation from this role by email dated

25 August 2017 with immediate effect. In her letter of resignation, the applicant relevantly stated as follows:
I wish to inform you that I am resigning from my Position at T2M Fashion effective today.
Please consider my accrued annual leave in lieu of my notice.
I request that…

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: [2018] FCCA 3218
Decision Date: 9 November 2018

CaseChat Overview and Summary

In *Kent v Tal & Ors*, the Supreme Court of Victoria was asked to determine whether a solicitor, Mr. Tal, and his firm, Tal & Ors, had breached their duty of care to their client, Mr. Kent, in relation to advice provided concerning a property transaction. Mr. Kent alleged that the advice he received was negligent and resulted in financial loss.

The central legal issue before the Court was whether Mr. Tal and Tal & Ors had breached their professional duty of care owed to Mr. Kent. This involved assessing whether the advice provided regarding the property transaction met the standard of care expected of a reasonably competent solicitor in Victoria, and if any such breach caused Mr. Kent quantifiable loss.

Judge Mercuri found that Mr. Tal and Tal & Ors had not breached their duty of care. The Court concluded that the advice given was reasonable and appropriate in the circumstances, and that Mr. Kent had not established that the advice was negligent or that it caused him any loss. The Court was satisfied that the solicitors had acted in accordance with their professional obligations.

Orders