Overall v Permanent Trustee Co Ltd

[1999] FCA 1385

FEDERAL COURT OF AUSTRALIA

Overall v Permanent Trustee Company Ltd  [1999] FCA 1385

WAYNE DOUGLAS OVERALL -v- PERMANENT TRUSTEE COMPANY LTD
V 411 of 1999

RYAN J
29 SEPTEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 411 OF 1999

BETWEEN:	WAYNE DOUGLAS OVERALL Applicant
AND:	PERMANENT TRUSTEE COMPANY LTD Respondent
JUDGE:	RYAN J
DATE OF ORDER:	29 SEPTEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

(1)That the proceedings herein be transferred to the Supreme Court of Victoria.

(2)That the costs of both parties of the proceedings in this Court, including any reserved costs, and the costs of and incidental to the motion on notice dated 27 August 1999, be costs in the cause in the Supreme Court of Victoria.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 411 OF 1999

BETWEEN:	WAYNE DOUGLAS OVERALL Applicant
AND:	PERMANENT TRUSTEE COMPANY LTD Respondent

JUDGE:	RYAN J
DATE:	29 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter the applicant, Mr Overall, has applied to this Court claiming relief in relation to the termination of his employment by the respondent Permanent Trustee Company Ltd ("Permanent Trustees").  The statement of claim pleads, first, a contract of employment between the applicant and Permanent Trustees.  Various terms of that contract are pleaded, including some as to the circumstances in which Mr Overall's employment could be terminated before he reached normal retiring age and the consequences of termination in those circumstances.

2. Those consequences are related to matters such as severance or redundancy payments and accrued annual and long service leave.  It is then pleaded that, in breach of contract, the applicant's employment was terminated and he was paid one month's salary in lieu of notice.  Damages are claimed for breach of contract.  There seem to be various formulations of the measure of damages claimed, but at their highest they appear to amount to $326,746.  As well, it is pleaded that Permanent Trustees has been guilty of deceptive and misleading conduct under s 52 of the Trade Practices Act by representing to the applicant in March 1998 ("the Lee representation"), that if the applicant were made redundant he would receive 60 weeks' salary.  On various dates between 28 May 1997 and 28 October 1998 ("the Davis representations"), another officer of Permanent Trustees allegedly told the applicant that he would have ongoing employment with that company.

3. The same loss and damage as are claimed for breach of contract are pleaded to have flowed from the alleged contraventions of s 52 of the Trade Practices Act.  It is then pleaded that the Lee representation and the Davis representations were collateral warranties which induced the applicant to enter into, or continue, the contract of employment.  The same damages are claimed to have flowed from breaches of those collateral warranties.  It is next pleaded that Permanent Trustees is estopped from not giving effect to either…