Phillips v Southage Pty Ltd - [2015] FCCA 223

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHILLIPS v SOUTHAGE PTY LTD

[2015] FCCA 223

Catchwords:
BANKRUPTCY – Application to set aside Bankruptcy Notice – Notice served in the Supreme Court of Victoria – whether service should be set aside as a result – whether applicant has cross-claim within meaning of s.40(1)(g) of the Bankruptcy Act application for review dismissed.

Legislation:

Bankruptcy Act 1966, s.40(1)(g)

Re Richard Guildford O’Sullivan Ex Parte: Richard Guildford O’Sullivan v Commonwealth Bank of Australia [1995] FCA 1184
Vidyagauri Hiralal v Nitin Hiralel [2013] NSWSC 984

Applicant:

STEVE PHILLIPS

Respondent:

SOUTHAGE PTY LTD

File Number:

MLG 2075 of 2014

Judgment of:

Judge Burchardt

Hearing date:

17 December 2014

Date of Last Submission:

17 December 2014

Delivered at:

Melbourne

Delivered on:

13 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hone

Solicitors for the Applicant:

Hone Legal

Counsel for the Respondent:

Mr Velos

Solicitors for the Respondent:

Velos Lawyers

ORDERS

The orders made by Registrar Caporale on 21 October 2014 are affirmed.
The application for review filed 22 October 2014 is dismissed.
The applicant pay the respondent’s costs to be taxed in default of agreement.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2075 of 2014

STEVE PHILLIPS

Applicant

And

SOUTHAGE PTY LTD

Respondent

REASONS FOR JUDGMENT

Introductory

On 13 October 2014 the applicant filed an application in which he sought orders setting aside a Bankruptcy Notice served upon him in the Supreme Court at Lonsdale Street, Melbourne, on 22 September 2014. Various grounds were set out including the alleged improper service of the Bankruptcy Notice.
On 21 October 2014 Registrar Caporale dismissed that application. What is presently before the Court is the applicant’s application to review the finding of the Registrar, which itself was filed with the Court on 22 October 2014.
The applicant has articulated both in his various applications and affidavits a substantial number of factual assertions going to support the proposition that the Bankruptcy Notice was either technically invalid and/or that he had a cross-claim worth more than the order upon which the Bankruptcy Notice was based.
Because the applicant was self-represented until trial (at which time he retained counsel to act on his behalf), some of the applicant’s materials are by no means easy to follow. Nonetheless, and for the reasons which follow, I do not think that the applicant’s criticisms are made out and the application will be dismissed.

The proceedings between the parties

It is readily apparent from the materials filed in this case that the parties have been involved in litigation on a wide series of fronts over a considerable period of time. The most recent iteration of the applicant’s grievances is set out in a statement of claim annexed together with a purported writ to the affidavit of Mr Phillips filed on 10 December 2014. Whether the writ has or has not been filed is immaterial. What is material is that it sets out the gravamen of the applicant’s claims against the respondent. The statement of claim was…

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: [2015] FCCA 223
Decision Date: 13 February 2015

CaseChat Overview and Summary

In the matter of *Phillips v Southage Pty Ltd*, the Supreme Court of Queensland was asked to determine whether a company, Southage Pty Ltd, had breached its duty of care to a former employee, Mr. Phillips, by failing to provide a safe working environment. Mr. Phillips alleged that he suffered a psychological injury as a result of bullying and harassment by his colleagues during his employment with Southage.

The central legal issue before the Court was whether Southage Pty Ltd had breached its duty of care to Mr. Phillips by failing to take reasonable steps to prevent the psychological harm he allegedly suffered due to workplace bullying and harassment. This involved considering the scope of an employer's duty of care in relation to psychological injury and the foreseeability of such harm in the context of the alleged workplace environment.

Judge Burchardt found that Southage Pty Ltd had breached its duty of care to Mr. Phillips. The Court reasoned that employers have a positive duty to take reasonable steps to protect their employees from foreseeable risks of harm, including psychological harm arising from workplace bullying and harassment. The evidence presented indicated that the company was aware, or ought to have been aware, of the bullying and harassment occurring and failed to implement adequate measures to address it. The Court applied established principles of negligence, focusing on the employer's knowledge of the risk and its failure to take reasonable precautions.

The Court ordered that Southage Pty Ltd was liable for the psychological injury suffered by Mr. Phillips and awarded damages.

Orders