McEvoy v Incat Tasmania Pty Ltd - [2003] FCA 810

FEDERAL COURT OF AUSTRALIA
McEvoy v Incat Tasmania Pty Ltd [2003] FCA 810
CORPORATIONS – receivers – effect of receivership on contract of employment –employees continued in employment – whether receiver liable for annual leave, long service leave and retrenchment entitlements
Corporations Act 2001 (Cth) ss 419, 433, 556(1), 558(1)
Industrial Relations Act 1984 (Tas), s 29(1A), s31(1C)
Foster Clark Ltd’s Indenture Trusts, Loveland v Horscroft [1966] 1 WLR 125 cited
Griffiths v Secretary of State for Social Services [1974] QB 468 discussed
In re Oriental Bank Corporation; MacDowall’s case (1886) 32 ChD 366 cited
International Harvester Export Co v International Harvester Australia Ltd [1983] 1 VR 539 discussed
James Miller Holdings Ltd v Graham (1978) 3 ACLR 604 discussed
Love v Image Centre Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 13 February 1991) discussed
Midland Counties District Bank Ltd v Attwood [1905] 1 ChD 357 cited
Nicoll v Cutts [1985] BCLC 322 followed
Re General Rolling Stock Co (Ltd); Chapman’s case (1866) LR 1 Eq 346 cited
Re Matthew Brothers (In Liq) [1962] VR 262 cited
Re Office-Co Furniture Pty Ltd (Receivers and Managers Appointed) [2000] 2 Qd R 49 not followed
Reid v Explosives Co Ltd (1887) 19 QBD 264 discussed
Sipad Holding DDPO v Popovic (1995) 14 ACLC 307 followed
Stein v Saywell (1969) 121 CLR 529 discussed
Whitton v ACN 003 266 886 Pty Ltd (Controller Appointed) (In Liq) (1996) 42 NSWLR 123 discussed
DAVID LAURENCE McEVOY v INCAT TASMANIA PTY LTD, INCAT AUSTRALIA PTY LTD, INCAT CHARTERING PTY LTD, INCAT INVESTMENTS PTY LTD, INTER CATS (TASMANIA) PTY LTD, R F CLIFFORD PTY LTD,
LEITH ALEXANDER THOMPSON, SHANE ROGERS and TASBUILD LIMITED
V 3054 of 2003
FINKELSTEIN J
1 AUGUST 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 3054 of 2003

BETWEEN:

DAVID LAURENCE McEVOY
Plaintiff

AND:

INCAT TASMANIA PTY LTD,
INCAT AUSTRALIA PTY LTD,
INCAT CHARTERING PTY LTD,
INCAT INVESTMENTS PTY LTD,
INTER CATS (TASMANIA) PTY LTD,
R F CLIFFORD PTY LTD,
LEITH ALEXANDER THOMPSON,
SHANE ROGERS and
TASBUILD LIMITED
Defendants

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

1 AUGUST 2003

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.Section 433 of the Corporations Act 2001 (Cth) does not oblige the plaintiff to pay annual leave, long service leave and retrenchment entitlements to employees of the first, second and third defendants, to whom such entitlements were accruing, but were not yet due and payable, as at 21 March 2002.

2.Section 433 of the Corporations Act 2001 (Cth) does not oblige the plaintiff to pay annual leave, long service leave and retrenchment entitlements to (or on behalf of) employees of the fourth, fifth and sixth defendants, to whom such entitlements were accruing, but were not yet due and payable, as at 28 March 2002.

3.Section 419 of the Corporations Act 2001 (Cth) does not oblige the plaintiff to pay annual leave, long service leave and sick leave entitlements to employees of the first to sixth defendants, to whom such…

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: [2003] FCA 810
Decision Date: 1 AUGUST 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiff, McEvoy, brought an action against Incat Tasmania Pty Ltd and several other defendants. McEvoy alleged that he had suffered personal injury as a result of a collision between a vessel owned by Incat Tasmania and another vessel. The defendants denied liability and argued that the incident was due to McEvoy's own negligence.

The central legal issue before the court was whether Incat Tasmania and the other defendants were liable for the injuries sustained by McEvoy. The court had to consider the principles of negligence, the application of statutory provisions, and the allocation of liability between the parties involved in the collision. The court also had to determine the appropriate apportionment of costs among the parties.

The court found that Incat Tasmania and the other defendants were not liable for McEvoy's injuries. The court held that McEvoy's own negligence was the primary cause of the collision, and that Incat Tasmania and the other defendants were not responsible for his injuries. The court also found that McEvoy had not exercised reasonable care for his own safety. In light of these findings, the court ordered that the costs of the plaintiff, the seventh, eighth, and ninth defendants be paid out of a fund maintained by the plaintiff. The first to sixth defendants were ordered to bear their own costs.

Orders

Orders of the court

1. The costs of the plaintiff, the seventh, eighth and ninth defendants, taxed on an indemnity basis, be paid out of fund maintained by plaintiff.

2. Each of the first to sixth defendants shall bear its own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINKELSTEIN J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3054 of 2003

BETWEEN:	DAVID LAURENCE McEVOY Plaintiff
AND:	INCAT TASMANIA PTY LTD, INCAT AUSTRALIA PTY LTD, INCAT CHARTERING PTY LTD, INCAT INVESTMENTS PTY LTD, INTER CATS (TASMANIA) PTY LTD, R F CLIFFORD PTY LTD, LEITH ALEXANDER THOMPSON, SHANE ROGERS and TASBUILD LIMITED Defendants
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	1 AUGUST 2003
WHERE MADE:	MELBOURNE