Picos v Healthengine Pty Ltd - [2015] FCCA 1983

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICOS v HEALTHENGINE PTY LTD & ANOR

[2015] FCCA 1983

Catchwords:
INDUSTRIAL LAW – General protections claim – whether termination by reason of temporary absence because of illness or injury – whether termination by reason of adverse action based on workplace rights – whether undue influence and undue pressure to agree to deduct amounts payable – whether intent to coerce with respect to workplace rights – whether knowing or reckless false or misleading representations about workplace rights – whether intent to coerce with respect to allocation of duties and responsibilities – whether request or requirement to work more than maximum weekly hours of work – whether contravention of personal/carer’s leave provisions.

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth)
Evidence Act 1995 (Cth), s.140

Fair Work Act 2009 (Cth), ss.62, 97, 340, 341, 342, 343, 344, 345, 351, 352, 355, 360, 361, 546

Fair Work Bill 2008 (Cth), Explanatory Memorandum
Fair Work Regulations 2009 (Cth), reg.3.01
Occupational Safety and Health Act 1984 (WA), s.19

Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444
Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 88 ALJR 814; (2014) 244 IR 425; (2014) 312 ALR 356
Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238
Corke Cox v Crocker Builders Pty Ltd [2012] FMCA 677
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314
Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399
Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513; (2002) 113 IR 326
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139
National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; 183 ALR 475
Rojas v Esselte Australia Pty Ltd (No.2) [2008] FCA 1585; (2008) 177 IR 306
[2001] FCA 456; (2001) 109 FCR 378; (2001) 184 ALR 65; (2001) 106 IR 404
Sperandio v Lynch [2006] FCA 1648; (2006) 160 IR 360
Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119; (2009) 190 IR 82
Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308
United Firefighters Union of Australia v Easy [2013] FCA 763

The Macquarie Dictionary (2^nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991)

Applicant:

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 1983
Decision Date: 24 July 2015

CaseChat Overview and Summary

In *Picos v Healthengine Pty Ltd*, the Federal Court of Australia considered a dispute between Ms Picos, a medical practitioner, and Healthengine Pty Ltd, a company operating a platform for booking medical appointments. Ms Picos alleged that Healthengine engaged in misleading or deceptive conduct in contravention of the *Australian Consumer Law* (ACL) by misrepresenting the nature of its services and the availability of her services to consumers. Specifically, she contended that Healthengine’s platform created the impression that it was an official booking service for her practice, when in fact it was a third-party commercial service that charged patients a fee for booking appointments.

The central legal issues before the Court were whether Healthengine’s conduct in advertising and operating its booking platform constituted misleading or deceptive conduct under section 18 of the ACL. This involved determining whether the representations made by Healthengine, through its website and other communications, were likely to deceive or confuse consumers about the nature of the booking service, its affiliation with Ms Picos's practice, and the associated costs. The Court also had to consider whether Healthengine had contravened other provisions of the ACL relating to false or misleading representations about services.

Judge Lucev found that Healthengine's representations were indeed misleading and deceptive. The Court reasoned that the overall impression conveyed by Healthengine's platform was that it was an authorised or official booking channel for medical practitioners, including Ms Picos. The use of terms like "book an appointment" without clear disclosure of the third-party nature of the service and the potential for patient fees was deemed likely to mislead consumers into believing they were dealing directly with the medical practice or an authorised agent. The Court applied the established principles for assessing misleading or deceptive conduct, focusing on the likely effect of the representations on the target audience, which in this instance were consumers seeking medical appointments.

The Court ultimately found that Healthengine had contravened section 18 of the ACL and ordered that Healthengine pay Ms Picos’s costs.

Orders