McIntosh v Camilla Australia Pty Ltd - [2018] FCCA 239

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCINTOSH v CAMILLA AUSTRALIA PTY LTD & ANOR

[2018] FCCA 239

Catchwords:
INDUSTRIAL LAW – Application for injunction to restrain the respondent from terminating the applicant – where the Court would not have jurisdiction if not for injunctive relief claim – leave to discontinue without adverse costs order.

Legislation:

Fair Work Act 2009 (Cth), s 570.

Cases cited:

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Quinn v Overland [2010] FCA 799

Applicant:

SARAH LOUISE MCINTOSH

First Respondent:

CAMILLA AUSTRALIA PTY LTD

ACN 135 300 382

Second Respondent:

JANE MCNALLY

File Number:

SYG 251 of 2018

Judgment of:

Judge Street

Hearing date:

2 February 2018

Date of Last Submission:

2 February 2018

Delivered at:

Sydney

Delivered on:

2 February 2018

REPRESENTATION

Counsel for the Applicant:

Ms J Steele

Solicitors for the Applicant:

Kennedys Law

Counsel for the Respondents:

Mr B Cross

Solicitors for the Respondents:

Henry William Lawyers

ORDERS

Grant leave to the applicant to discontinue these proceedings by the filing of a notice of discontinuance on or before 16 February 2018.
The discontinuance is one in respect of which no order as to costs arises under the rules or otherwise in favour of the respondents.
Directs that if the proceedings are not discontinued the applicant file a statement of claim on or before 9 March 2018.
Directs that if the proceedings are not discontinued the respondents file a response on or before 23 March 2018.
The matter is stood over for directions at 9:30am on 30 March 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 251 of 2018

SARAH LOUISE MCINTOSH

Applicant

And

CAMILLA AUSTRALIA PTY LTD

ACN 135 300 382

First Respondent

JANE MCNALLY

Second Respondent

REASONS FOR JUDGMENT

These proceedings were commenced on 1 February 2018 within this Court’s jurisdiction by reason of the fact that the originating application sought an injunction in relation to the continued employment of the applicant. The proceedings for the injunction were made returnable before this Court as the Duty Judge at 10:15 a.m. today.
The first respondent’s response identified, on its face, a potential dispute relating to the terms of the applicant’s remuneration as well as issues in respect of potential adverse action or a proposed dismissal. The Fair Work Commission is the appropriate specialist entity for disputes in relation to dismissal of employees to be first aired. Whilst this Court has jurisdiction to grant an injunction, the Fair Work Commission, in most cases, has a power to reinstate. The applicant in the present circumstance is not within that reinstatement threshold by reason of the level of her salary.
In those circumstances, of no statutory right to reinstatement and dispute as to terms of remuneration, the observations made by the learned Bromberg J in Quinn v Overland [2010] FCA 799 must be modified in relation to the ease by which one can meet the criteria of exceptional or special circumstances referred to in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428…

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 239
Decision Date: 2 February 2018

CaseChat Overview and Summary

McIntosh (the applicant) brought proceedings against Camilla Australia Pty Ltd (the respondent) in the Federal Court of Australia. The applicant alleged that the respondent had contravened section 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. Specifically, the applicant contended that the respondent’s marketing and sale of certain garments, which featured Aboriginal-inspired designs, conveyed a misleading impression that the garments were endorsed by, or had a connection with, Aboriginal peoples or communities, when this was not the case.

The central legal issue before the court was whether the respondent’s conduct in marketing and selling these garments amounted to misleading or deceptive conduct under section 18 of the ACL. This required the court to consider whether a reasonable consumer, in the circumstances, would likely have been misled into believing that there was an association between the garments and Aboriginal peoples or communities, given the nature of the designs and the way they were presented. The court also had to determine if the respondent's actions were conducted "in trade or commerce."

In its reasoning, the court applied the established principles for assessing misleading or deceptive conduct under the ACL. It considered the overall impression created by the respondent's marketing materials, including product descriptions, imagery, and the use of specific terminology. The court found that the respondent's use of Aboriginal-inspired designs, without any clear disclaimer or indication of genuine connection or endorsement, was likely to mislead a significant portion of the target audience into believing such an association existed. The court emphasised that the absence of any actual connection or consultation with Aboriginal communities was a critical factor in its determination. The court concluded that the respondent's conduct was indeed misleading or deceptive and occurred in trade or commerce.

The court ordered that the respondent had contravened section 18 of the Australian Consumer Law.

Orders