Naroth v Innovative Hair Loss Solutions Pty Ltd
[2013] FCA 941
FEDERAL COURT OF AUSTRALIA
Naroth v Innovative Hair Loss Solutions Pty Ltd [2013] FCA 941
Citation: Naroth v Innovative Hair Loss Solutions Pty Ltd [2013] FCA 941 Parties: NANDITA NAROTH v INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD, DEREK BEST, DEBRA BEST and ALEXANDRA McCLUNIE File number: WAD 107 of 2013 Judge: GILMOUR J Date of judgment: 12 August 2013 Legislation: Occupational Safety and Health Act 1984 (WA) Date of hearing: 12 August 2013 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr G Dean Solicitor for the Respondents: Metaxas & Hager
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 107 of 2013
BETWEEN: NANDITA NAROTH
AppellantAND: INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD
First RespondentDEREK BEST
Second RespondentDEBRA BEST
Third RespondentALEXANDRA MCCLUNIE
Fourth Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
12 AUGUST 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appellant be granted leave to amend her existing grounds of appeal by substituting the following grounds as set out in her interlocutory application dated 6 June 2013:
(a)Ground 1
(b)Ground 2;
(c)Ground 3.1;
(d)Grounds 4 – 7;
(e)Grounds 10 – 17;
(f)Grounds 19 – 20; and
(g)Ground 22.
2.The costs of the appellant’s interlocutory application dated 6 June 2013, including the costs of the hearing of 12 August 2013, be costs of the appeal.
3.The application be otherwise adjourned.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 107 of 2013
BETWEEN: NANDITA NAROTH
AppellantAND: INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD
First RespondentDEREK BEST
Second RespondentDEBRA BEST
Third RespondentALEXANDRA MCCLUNIE
Fourth Respondent
JUDGE:
GILMOUR J
DATE:
12 AUGUST 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application by the appellant by interlocutory application to amend her grounds of appeal. They effectively constitute a substitution of those grounds for the existing grounds of appeal. The grounds are lengthy and at one level might be criticised for the form in which they are found. However, I think that doing justice to what the appellant has attempted to do one can discern, as a starting point, a number of generic challenges to the findings of the trial judge.
Firstly, there are a series of challenges to the factual findings made by the trial judge. They are quite extensive in nature. They involve, amongst other matters, the proper characterisation of the content of a series of emails which passed between the appellant and particularly the fourth respondent, the Operations Manager for the first respondent, and, in turn, whether, given the characterisation of that content whether together, or in some combination, they constitute contraventions of the Occupational Safety and Health Act 1984 (WA) (OSH Act); whether they amount to misleading and deceptive conduct and/or unconscionable conduct; and whether they constitute breaches of the appellant’s employment contract.
The other area of challenge concerns findings in relation to what was said to be, and indeed described by the trial judge, as statutory duties under the OSH Act, but also whether those statutory duties were to be implied into the contract of employment to which I have referred. There were other separate challenges. As I indicated to the parties in the course of argument, it is well recognised, of course, that trial judges doing their best can nonetheless make errors of fact. The appellant is entitled to appeal from the judgment of the lower court. This was a case which I am informed lasted for 11 days.
There was, to adopt the words of counsel appearing for the respondents, a great volume of evidence and one would expect, of course, that to be so given the length of the trial. I think it is fair to say that counsel for the respondents has implicitly acknowledged the difficulties confronted by his clients in resisting the proposed amendments on the grounds that they are without merit. Indeed, to do justice to that aspect of an application such as this, in the context of a case of this kind in the way that I have described it, would require a detailed consideration of that volume of evidentiary material. Quite properly, in my view, counsel for the respondents eschewed such a course.
In my view the appellant ought to be granted leave to amend her grounds of appeal but not the entirety of the proposed grounds which she advanced before me this morning. I propose to deal with those grounds in respect of which I will not grant leave to amend. But it needs to be understood that the effect of what I will do is that her present grounds in their entirety will be substituted by the grounds which I will allow. The first set of grounds will be put to one side and will be substituted by such of the grounds as I will allow upon this application to amend.
The grounds which I will not grant leave to amend are as follows: ground 3 – although I will permit to remain ground 3.1. I am satisfied, having considered the reasons of the trial judge and having heard the submissions of counsel for the respondents, that there is no merit in the appellant’s proposed ground that the trial judge was in error in finding that there was no basis to imply terms in the employment contract which were statutory duties to be found in the OSH Act.
However, as his Honour described it in para 23 of his reasons, the appellant alleged breaches of various duties of the OSH Act, but did so in a way that rolled those allegations into being breaches of express and implied terms. In the event, his Honour did not deal with the question whether the appellant was owed duties under those sections of the OSH Act or make any findings in that respect. Accordingly, I will leave proposed ground 3.1 which is a ground that will enable the appellant to contend that there should have been findings under the Act, albeit not as terms which were brought into the contract but simply discrete, stand-alone allegations of breach of statutory duty.
I will not grant leave in relation to ground 8 which is a ground concerning a matter of costs and the length of the trial. The question of costs can be re-visited depending upon the result of the appeal to the Full Court.
I will not grant leave in relation to ground 9. This concerns the conduct of the trial and what was allowed in re-examination and the failure, apparently, of the appellant to cross-examine the third respondent. These are procedural matters which it was within the power of the appellant to have dealt with at the trial. She evidently did not and, in my view, it is not an appropriate ground of appeal. I will not grant leave in respect of ground 18. That is in its entirety – that is 18, 18.1 and 18.2 – because it seems to me to be a pointless proposition to contend that the trial judge fell into error in making findings in relation to the claim that the appellant did not actually bring.
Finally, I will not grant leave in relation to proposed ground 21 concerning the conduct of the respondents’ lawyers. There are occasions when trial judges in the context of a trial make observations and findings concerning the conduct of legal practitioners and that is a matter for the trial judge; it is not for a Full Court on appeal to consider what the trial judge might have but did not do in that respect. It does not go to the merits of the appellant’s appeal on substantive matters concerning her claims and their disposition by the trial judge.
So that there is no doubt as to those grounds which I will permit to be substituted and in respect of which I grant leave, it will be all of grounds 1, 2, 3.1 but not otherwise in relation to 3; 4, 5, 6, 7, 10-17 (inclusive), 19, 20 and 22.
There will also be orders that the costs of the appellant’s interlocutory application dated 6 June 2013, including the costs of the hearing of 12 August 2013, be costs of the appeal and that the application be otherwise adjourned.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 18 September 2013
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