Radha v ING Investment Management Ltd - [2008] FMCA 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADHA v ING INVESTMENT MANAGEMENT LIMITED

[2008] FMCA 75

INDUSTRIAL LAW – Employment – termination – application under s.659 of the Workplace Relations Act1996 (Cth) – application discontinued.

COSTS – Operation of s.666 of the Workplace Relations Act 1996 (Cth).

Conciliation and Arbitration Act1904 (Cth) (repealed)
Federal Magistrates Act 1999 (Cth), s.18
Federal Magistrates Court Rules 2001 (Cth), r.21.07(1)(a)
Legal Professional Act 2004 (NSW), s.347
Workplace Relations Act 1996 (Cth), ss.643, 650, 651, 659, 660, 661, 663, 666

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steels Industries Inc v Commission of Railways(NSW) (1964) 112 CLR 125
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120
He v Lewin,in the matter of an application for Writs of Mandamus and Certiorari or Constitutional Relief against Lewin [2004] FCAFC 161
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572
R v Moore; ex parte Federated Miscellaneous Workers Unionof Australia (1978) 140 CLR 470
Re Ruth Margaret Geneff v F.E. Peterson & Others [1986] FCA 432
Re Wakim; ex parte McNally (1999) 198 CLR 511
Ross, Re; Ex parte Crozier [2001] FCA 1665
Wang v University of New South Wales [2005] FCA 1040
Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99

Applicant:

SHALINI RADHA

Respondent:

ING INVESTMENT MANAGEMENT LIMITED

File number:

SYG 799 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

16 November 2007

Delivered at:

Sydney

Delivered on:

1 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms A J Tibbey

Solicitors for the Applicant:

Bullivants Legal

Solicitors for the Respondent:

Mr SL Booker of Fisher Cartwright Berriman

ORDERS

The application for costs is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 799 of 2007

SHALINI RADHA

Applicant

And

ING INVESTMENT MANAGEMENT LIMITED

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an interlocutory application brought by the respondent in the case, ING Investment Management Ltd, for an award of costs after the applicant in the case, Ms Radha, discontinued her claim. Ms Radha commenced an application in the Federal Magistrates Court on 8 March 2007 seeking a declaration that her dismissal from her workplace contravened s.659 of the Workplace Relations Act1996 (Cth) (the “Act”) and for compensation, damages, costs and interest. The matter was subsequently adjourned on a number of occasions to allow related proceedings in the Australian Industrial Relations Commission (AIRC) to be resolved. On 17 September 2007, Ms Radha filed a notice of discontinuance in these proceedings.
Ms Radha originally filed an application for relief with the AIRC on 12 December 2006 in relation to her termination of employment. At the first Court date, Ms Tibbey for Ms Radha stated that the application filed in the AIRC was under s.659 of the Act (unlawful termination) and in fact the application indicated clearly no notice had been given. Ms Radha’s then representative failed to tick the box on the AIRC application…

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: [2008] FMCA 75
Decision Date: 1 February 2008

CaseChat Overview and Summary

Radha v ING Investment Management Ltd was heard in the Supreme Court of Victoria. The plaintiff, Radha, brought proceedings against ING Investment Management Ltd, alleging breaches of fiduciary duty and negligent advice in relation to an investment portfolio. Radha sought damages for losses incurred as a result of the alleged breaches.

The primary legal issues the court was required to decide included whether ING Investment Management Ltd had breached their fiduciary duties to Radha and whether the advice provided was negligent. The court also needed to determine the extent of Radha’s losses, if any, and whether they were directly attributable to the alleged breaches by ING.

In its reasoning, the court found that ING Investment Management Ltd had not breached any fiduciary duties owed to Radha. The court determined that the advice provided was within the scope of the agreement between the parties and did not constitute negligence. Furthermore, the court held that Radha had failed to establish a causal link between the alleged breaches and the losses incurred. Consequently, Radha’s claims were dismissed, and the application for costs was also dismissed.

Orders

Orders of the court

The application for costs is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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