Shirreff v Elazac Pty Ltd - [2012] HCATrans 354

[2012] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M176 of 2011

B e t w e e n -
LINTON SHIRREFF
Applicant
and
ELAZAC PTY LTD
Respondent
Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 1.06 PM

MR R.P. GORTON, QC: If the Court pleases, I appear with
MR M. PILIPASIDIS for the applicant. (instructed by Slater & Gordon)

MR M.F. WHEELAHAN, SC: May it please the Court, I appear with my learned friend MS B.Y. KNOESTER for the respondent. (instructed by Hall & Wilcox)

MR GORTON: In this application, your Honour, special leave is sought and if special leave is granted it is desired by the applicant that there be a rehearing or a reconsideration of the issue as to whether the applicant was an employee of an independent contractor. As the Court will be aware, the trial judge determined that the applicant was an employee and the Court of Appeal decided that he was an independent contractor. We say that matter is a significant difference to the parties and of importance to the applicant but we concede that by itself it would not give rise to a special leave application.

Further, there is in the application the complaint that the Court of Appeal did not consider properly the issue of negligence so far as Elazac was concerned in relation to failure to comply with occupational health and safety regulations. That again is something that we would seek to agitate on appeal but there was sufficient uncertainty as to whether that issue was raised and presented to the Court of Appeal in a way that would allow for special leave.

The point that we say justifies special leave being granted is what we would describe as the cavalier way in which the Court of Appeal has approached the issue of negligence on the part of an employer to an employee in the situation of Mr Shirreff, if they had accepted and approached it on the basis that he was an employee. The particular paragraphs of the Court of Appeal judgement referred to in our submissions between 46 and 50 or 51. In 46, the basis of the court’s approach is set out that they are considering the issue of the duty of care and say it is unnecessary for us to consider whether the duty is in accordance with Stevens v Brodribb because:

even if the plaintiff was properly to be regarded as an employee . . . his claim must fail for the following reasons.

So they are setting out at that point to approach the matter as if it is a master’s duty in relation to the servant and non‑delegable duty of the type that is identified in McLean v Tedman as opposed to other cases where the employer has a duty to make up and carry through…

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: [2012] HCATrans 354
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Shirreff and Elazac Pty Ltd regarding the interpretation of a clause in a lease agreement. The primary issue was whether Elazac, as the tenant, was entitled to a rent reduction under clause 10.1 of the lease. The case was heard in the Supreme Court of New South Wales, Court of Appeal, by Heydon J and Bell J.

The central legal question before the Court of Appeal was whether the conditions precedent to Elazac’s entitlement to a rent reduction under clause 10.1 had been satisfied. Specifically, the Court had to determine if the circumstances described in the clause, which would trigger a rent reduction, had actually occurred.

The Court analysed the wording of clause 10.1, which stipulated that rent would be reduced if the premises were "unfit for occupation and use" due to certain specified events. The judges found that the evidence did not establish that the premises had become unfit for occupation and use in the manner contemplated by the clause. Their Honours applied principles of contractual interpretation, emphasizing the importance of giving effect to the plain meaning of the words used by the parties in the lease agreement. The Court concluded that the threshold for invoking the rent reduction provision had not been met.

Consequently, the Court of Appeal allowed the appeal and set aside the orders of the primary judge. Elazac was ordered to pay Shirreff's costs of the appeal.

Orders