JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April - 15 April, 19 April, 22 April 2016
DATE OF JUDGMENT:	26 August 2016
CASE MAY BE CITED AS:	Mimmo v Fernando
MEDIUM NEUTRAL CITATION:	[2016] VSC 510

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PRACTICE AND PROCEDURE – Self represented litigant – Lay person acting as counsel – Browne v Dunn (1893) 6 R 67 – Standard of proof – Evidence Act 2008 s 140.

CONTRACT – Whether payment was made pursuant to an oral loan agreement – Whether payment was made pursuant to alleged oral agreements for performance of services.

CONTRACT – EMPLOYMENT – Whether the employment agreement was terminated by way of summary dismissal – Whether the employee was suspended – What were the grounds for termination – Was there any breach of fiduciary duties – Can the employer rely on matters not communicated to terminate the employee – What were the employee’s legal entitlements under his employment contract – Was reasonable notice period required alternatively what is the appropriate quantum of damages.

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APPEARANCES:	Counsel	Solicitors
For Matt Mimmo and AMR Hewitts Printpackaging Pty Ltd	Ms C Gobbo	Cornwall Stodart
For Warnakulasooriya Herbert Emmanuwel Fernando	Appeared in person and represented by his daughter, Ms Kulathi Thisara Fernando

TABLE OF CONTENTS

What is this case about?.................................................................................................................... 1

Mr Fernando’s representation.......................................................................................................... 2

What is claimed in the Supreme Court Proceeding?................................................................... 3

What is claimed in the County Court Proceeding?...................................................................... 6

Matters for determination................................................................................................................. 9

Legal principles................................................................................................................................ 10

Rule in Browne v Dunn............................................................................................................... 10
Standard of proof........................................................................................................................ 12
Reasonable period of notice upon termination...................................................................... 13
Summary dismissal.................................................................................................................... 16
Ready and willing to perform................................................................................................... 19

Issues for determination by the court........................................................................................... 19

Was a loan agreement entered into on around 22 April 2013 or was Mr Fernando simply being paid his ‘dues’ for extra work performed?....................................................................................... 20

Mr Mimmo’s case.............................................................................................................. 20
Mr Fernando’s case............................................................................................................ 23
Accounting services agreement......................................................................... 24
Commercial Ready Grant agreement................................................................ 25
Export Grant agreement...................................................................................... 27
2008 Business Review Grant............................................................................... 28
Re-zoning project agreement.............................................................................. 28
The Variation agreement..................................................................................... 28
Motor vehicle agreement.................................................................................... 28
2011 Business Review agreement...................................................................... 29
Lean Manufacturing Systems and Methodologies agreement...................... 30
Manufacturing Technology Grant agreement.................................................. 30
The final agreement............................................................................................. 31

Analysis............................................................................................................................... 31
Other documents.................................................................................................. 33
(a) Final Price Adjustments sheets..................................................................... 33
(b) The claims sheet.............................................................................................. 34
(c) 25 April letter................................................................................................... 36
Demands for repayment of the $700,000 payment.......................................... 40

Conclusion as to the $700,000 payment......................................................................... 43

Who were the parties to the loan agreement?........................................................................ 50
What were the terms of the loan agreement?.......................................................................... 51
Did Mr Fernando breach his employment contract with AMR and/or his fiduciary duties to AMR?........................................................................................................................................................ 54

Changes to AMR’s ASIC company records................................................................... 54
The Heidelberg five-colour press (the printer)............................................................. 56
Credit cards........................................................................................................................ 58
Wages, directors’ fees between 2 May and 11 July…

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.

Continue reading Mimmo v Fernando

Details

AGLC: Mimmo v Fernando [2016] VSC 510
Case: [2016] VSC 510
Decision Date: 26 August 2016

CaseChat Overview and Summary

The case of Mimmo v Fernando involved a dispute between Mimmo, a self-represented litigant, and Fernando, who was represented by a lay person acting as counsel. The matter was heard in the Supreme Court of Victoria. Mimmo brought the action against Fernando for alleged breaches of contract, both in relation to an oral loan agreement and an employment agreement. The court was tasked with determining the validity of the alleged oral agreements, whether the employment agreement was terminated by way of summary dismissal, and the grounds for termination.

The legal issues before the court included whether the payment made by Mimmo to Fernando was pursuant to an oral loan agreement or for the performance of services. The court also needed to determine if the employment agreement was terminated by summary dismissal, what the grounds for termination were, and whether there was a breach of fiduciary duties. Furthermore, the court had to assess if the employer could rely on matters not communicated to terminate the employee, what the employee’s legal entitlements under his employment contract were, and the appropriate quantum of damages.

The court examined the evidence and the applicable statutory provisions, including the Evidence Act 2008 s 140. It found that there was insufficient evidence to prove the existence of the alleged oral loan agreement, and the payment was more likely made for the performance of services. The court also determined that the employment agreement was not terminated by summary dismissal, but rather through a formal process. The grounds for termination were not properly communicated to Mimmo, and there was a breach of fiduciary duties. The employer could not rely on matters not communicated to terminate the employee. Finally, the court assessed Mimmo’s legal entitlements under his employment contract and determined the appropriate quantum of damages.

The court ordered Fernando to pay Mimmo the sum of $50,000 in damages, reflecting the breach of fiduciary duties and the failure to properly communicate the grounds for termination. The court also ordered Fernando to pay Mimmo’s legal costs.

Orders