SANBEAL Pty Ltd v BELVEN Enterprises Pty Ltd - [2004] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SANBEAL PTY LTD & ORS -v- BELVEN ENTERPRISES PTY LTD & ANOR [2004] WADC 54

CORAM: NISBET DCJ

HEARD: 12 MARCH 2004

DELIVERED : 1 APRIL 2004

FILE NO/S: CIV 79 of 2001

BETWEEN: SANBEAL PTY LTD (ACN 081 580 645)
First Plaintiff
ANTHONY BOZANICH
BARBARA JOAN BOZANICH
Second Plaintiffs
AND
BELVEN ENTERPRISES PTY LTD (ACN 008 849 705)
First Defendant
BARRY EDWARD MYLES
Second Defendant

Catchwords:

Practice and procedure - Amendment to statement of claim - Joinder of second plaintiffs - New cause of action - Whether new cause of action statute barred - Appeal from Deputy Registrar

Legislation:

Trade Practices Act 1974 (Cth)

Trade Practices Amendment Act (No 1) 2001 (Cth)

Result:

Appeal allowed
Orders of Deputy Registrar set aside

Representation:

Counsel:

First Plaintiff                :     Mr A P Hershowitz
Second Plaintiffs           :     Mr A P Hershowitz
First Defendant             :     Mr M D Cuerden
Second Defendant         :     Mr M D Cuerden

Solicitors:

First Plaintiff                :     Paiker & Overmeire
Second Plaintiffs           :     Paiker & Overmeire
First Defendant             :     Slee Anderson & Pidgeon
Second Defendant         :     Slee Anderson & Pidgeon

Case(s) referred to in judgment(s):

Day v Atlanta Nominees (1989) 69 WAIG 2156
Hewlett v Allen [1894] AC 383
Mutual Acceptance Co Limited v Federal Commissioner of Taxation (1944) 69 CLR 389
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Williams & Anor v North's Navigation Collieries (1889) Limited [1906] AC 136

Case(s) also cited:

E v Australian Red Cross Society (1991) 31 FCR 299
Famel Pty Ltd v Burswood Management Pty Ltd (1990) ATPR 41 - 004
Geary Nominees Pty Ltd v Pargas Nominees Pty Ltd (1986) ATPR 40 - 720
Jobbins v Capel Court Corporation Ltd (1989) 25 FCR 226
Moullin & Anor t/as R&J Moullin v Westralian Farmers Co-operative Ltd & Anor, unreported; SCt of WA; Library No; 8455 31 August 1990
Same & Lamborghini Tractors of Australia Pty Ltd v Ikin (1985) ATPR 40 - 557
Saunders Taylor & Zienkiewicz v Glev Franchises Pty Ltd Christou & Reyes (1995) 33 IPR 349
Simplot Australia Pty Ltd v PSL Industries [2001] VSC 419
The State of Western Australia & Anor v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25

NISBET DCJ: By summons to chambers filed 17 September 2003, the first plaintiff, as the only plaintiff in the action sought to join the second plaintiffs as second plaintiffs, and further sought leave to amend its statement of claim in accordance with the minute annexed to the summons. The application was opposed and it came on for hearing before a Deputy Registrar of the Court on 21 November 2003, whereafter the Deputy Registrar ordered that the second plaintiffs be joined as second plaintiffs, and that the plaintiffs have leave to amend the statement of claim in accordance with the minute of further amended statement of claim annexed to the summons. The defendants appeal from that order.
Prior to the amendments, the first plaintiff's claim was for damages for misleading and deceptive conduct contrary to the provisions of s 52 of the Trade Practices Act 1974 (Cth) arising out of the purchase by the first plaintiff of a business known as The Shell Broadwater Roadhouse. By the joinder of the second plaintiffs and the amendments, it was pleaded that the second plaintiffs operated the road house business between February 1998 and November 2000 on behalf of the first plaintiff and, by par 10A the plaintiffs pleaded:
"Furthermore, because the business could only be operated at a loss, the first plaintiff was not able to pay the Bozanich's a wage for the period that they operated the business as aforesaid."
The second plaintiffs then proceeded to claim damages against both defendants, again pursuant to the provisions of the Trade Practices Act. It must be specifically noted that there is no claim in tort or contract pleaded at all.
Before the amendments to the Trade Practices Act effected by the Trade Practices Amendment Act (No 1) 2001, the limitation period for claims for damages pursuant to s 82(1) of that Act was three years from the date on which a cause of action accrued: s 82(2). That period was extended to six years by the amending Act but that amendment only came into effect on 26 July 2001 and only applies to pre-existing causes of action which were not then statute barred. In other words, the amendments did not operate to revive a dead cause of action.
Accordingly, one has to examine the nature of the second plaintiffs' claim to see whether their cause of action arose within or without the relevant limitation period. As already noted, they claimed that they operated the business on behalf of the first plaintiff between February 1998 and November 2000, and that because the business was only able to operate at a loss when it had been represented that it would run at a profit, the business was unable to pay a wage to the second plaintiffs. Clearly, what is meant by this is that the first plaintiff could not pay the second plaintiffs a wage.
When a term such as "wage" is used in a pleading, it must be accorded its natural and ordinary meaning, and where words have a particular meaning in law which may expand or restrict the natural and ordinary meaning, the word must be accorded its meaning at its widest.
In Australia a distinction has long been drawn between wages and salary. In former times:
"In ordinary parlance, wages is the term used for the remuneration paid for other than 'white collar' jobs." per Rich J in Mutual Acceptance Co Limited v Federal Commissioner of Taxation (1944) 69 CLR 389 at 398.
Salary was the term used for remuneration in so called white collared jobs. The further distinction between the two was that wages were generally expressed as either weekly or fortnightly amounts, whereas a salary was expressed as being an annual amount payable, usually monthly, but occasionally at other agreed intervals such as fortnightly, quarterly etc. Before the repeal of the various Truck Acts around Australia (in Western Australia ‑ The Truck Act 1899) the law was that the entire amount of wages had to be paid in full in cash money, as and when they fell due. The object of the various Truck Acts was to prevent unscrupulous employers purporting to pay wages by giving goods in kind at values which were often inflated. However, as banking systems became more sophisticated and payment by cheque became the norm, the various Truck Acts were repealed. (See generally Hewlett v Allen [1894] AC 383; Williams & Anor v North's Navigation Collieries (1889) Limited [1906] AC 136 as discussed by Fielding C in Day v Atlanta Nominees (1989) 69 WAIG 2156).
In Western Australia however, the provisions of the Minimum Conditions of Employment Act 1993 provide that an employee is a reference to any person in any manner employed for wages in work of any kind or in manual labour, and "wages" is defined to include any money or thing, had or contracted to be paid, delivered, or given as a recompense, reward, or remuneration. The Act provides for minimum weekly rates of pay for all employees which are to be paid as follows:
"17CEmployee's pay, method of payment
1.To the extent that an employee receives his or her pay in money, the employee is entitled to be paid in full, and payment is to be made –
(a)in cash;
(b)by cheque, postal order or money order payable to the employee;
(c)by payment into an account, specified by the employee, with a bank or financial institution; or
(d)in any other manner authorised or required under the work place agreement, employer‑employee agreement, award or contract of employment.
2.In the case of an employee who is not employed by the Crown, payment can only be made under subsection (1)(b) or (c) if, and only if, the employee so authorises."
As can be seen, this is the modern successor to s 5 of the Truck Act 1899.
Accordingly, giving the word "wage" its natural and ordinary meaning, and its meaning defined by operation of law, it can be seen that the pleading means that the second plaintiffs were employees of the first plaintiff, who were entitled to a fixed regular remuneration for work and labour done for the first plaintiff, which was to be paid at regular intervals.
Even if I accord the plaintiffs the benefit of an interpretation which would suggest that the wage was payable monthly, or even quarterly, the non-payment would have given rise to a cause of action well before 26 July 1998, being the period of three years prior to the Trade Practices Amendment Act (2001) coming into effect on 26 July 2001.
In my opinion therefore it is clear that this alleged cause of action accrued prior to 26 July 1998 and is accordingly statute barred. This being a clear case, it is entirely appropriate that this claim should be struck out: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514. There will be orders that the appeal be, and is hereby allowed, and that the orders of the deputy registrar made 21 November 2003 be set aside. I will hear the parties as to costs.