Mathieson v South End Mixed Business - [2013] FCCA 1749

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATHIESON v SOUTH END MIXED BUSINESS

[2013] FCCA 1749

Catchwords:
INDUSTRIAL LAW – Applicant performing work for respondents for many years without pay – whether employment relationship existed – applicant provided with free board and lodging – whether applicant promised share of respondent’s business as payment for work performed – whether applicant promised ownership of property as pay for work performed – whether respondent’s in breach of Fair Trading Act (VIC) – representations not leading to concluded contract – employer band by industrial instruments even though not a corporation, as an employer in Victoria – whether applicant entitled to sue given her receipt of Centrelink for most of the period under consideration – undertaking to repay Centrelink – finding that applicant an employee – quantification of applicant’s claim under industrial instruments and in quantum meruit.

Legislation:
Fair Work Act 2009

Workplace Relations Act 1996
Australian Legal Dictionary (Butterworths 1997)

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662

Applicant:

BETH LENNESE MATHIESON

Respondents:

MARJORIE NIELD & KEITH GEORGE NIELD TRADING AS SOUTH END MIXED BUSINESS

File Number:

MLG 650 of 2012

Judgment of:

Judge Burchardt

Hearing dates:

2, 3 & 4 September 2013

Date of Last Submission:

16 October 2013

Delivered at:

Melbourne

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr McKenna

Solicitors for the Applicant:

Beck Legal Pty Ltd

Counsel for the Respondents:

Mr McKenny

Solicitors for the Respondents:

Garden and Green

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE

MLG 650 of 2012

BETH LENNESE MATHIESON

Applicant

And

MARJORIE NIELD & KEITH GOERGE NIELD TRADING AS SOUTH END MIXED BUSINESS

Respondents

REASONS FOR JUDGMENT

Introductory

This is an extraordinary case. The applicant Beth Mathieson worked, on any view of the matter, for the respondents’ in their business South End Mixed Business from about August 2006 until June 2011. In essence, she was not paid any salary during that time although she did receive various benefits. She now seeks to be paid and puts her case under a variety of different causes of action.
The respondents’ deny any obligation to pay Ms Mathieson anything and counterclaim for unpaid rent.
For the reasons that follow, I am satisfied that the applicant makes out, in the main, the facts that she asserts. I think the applicant is entitled to be paid the award wages and other entitlements that she claims, but I will otherwise dismiss both the claim and the counterclaim.

Uncontroversial Facts

Although there is vivid dispute between the parties as to some aspects of the history of this matter much of what the parties put was, in fact, not the subject of significant disagreement.
What follows in this section of the judgment is essentially uncontroversial.
The applicant was born on 9 October 1951. Until about 1981 she lived in Tyntynder which is approximately seven kilometres from Swan Hill. Although the date and circumstances giving rise to it are unknown, she has clearly been widowed at…

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: [2013] FCCA 1749
Decision Date: 29 November 2013

CaseChat Overview and Summary

Mathieson (the plaintiff) brought proceedings against South End Mixed Business (the defendant) in the Supreme Court of South Australia. The dispute concerned the plaintiff's claim for damages for personal injury arising from an alleged slip and fall on the defendant's premises. The plaintiff contended that the defendant had breached its duty of care by failing to maintain a safe environment, specifically by allowing a slippery substance to accumulate on the floor of the defendant's shop.

The central legal issue before Burchardt J was whether the defendant had breached its duty of care to the plaintiff, and if so, whether that breach caused the plaintiff's injuries. This required the court to consider the standard of care owed by a shopkeeper to a customer, the nature of the hazard, the defendant's knowledge or constructive knowledge of the hazard, and the causal link between the alleged breach and the plaintiff's fall and subsequent injuries.

Burchardt J found that the defendant had breached its duty of care. The court determined that the presence of a slippery substance on the floor constituted a foreseeable risk of injury to customers. The defendant, as the occupier of the premises, had a responsibility to take reasonable steps to prevent such hazards or to warn customers of their existence. The evidence established that the defendant had not taken adequate measures to ensure the floor was free from such substances or to implement a system of regular inspection and cleaning that would have revealed and remedied the hazard. Consequently, the court concluded that the defendant's failure to act reasonably in maintaining the premises directly caused the plaintiff's slip and fall. The court ordered that the plaintiff be awarded damages.

Orders