Spalding v Can't Tear ‘Em Pty Ltd - [1999] FCA 438

FEDERAL COURT OF AUSTRALIA
Spalding v Can’t Tear ‘Em Pty Ltd [1999] FCA 438
INDUSTRIAL LAW - construction of awards - meaning of employment within a nominated industry - required connexion between that industry, and the activities of employer and employee - classification of employment activities.
Workplace Relations Act 1996 (Cth) ss 179, 422
Workplace Relations Act 1997 (Qld)
The Queen v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297 considered
Michael Hennessy v Coral Princess Cruises (unreported, Williams J Industrial Court of Queensland, 25 August 1998) applied
ANGELITA SPALDING v CAN'T TEAR 'EM PTY LTD
QG 96 OF 1998
KIEFEL J
BRISBANE
14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 96 OF 1998

ON APPEAL FROM A DECISION OF AN INDUSTRIAL MAGISTRATE

BETWEEN:

ANGELITA SPALDING
Appellant

AND:

CAN'T TEAR 'EM PTY LTD
Respondent

JUDGE:

KIEFEL J

DATE OF ORDER:

14 APRIL 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 96 OF 1998

ON APPEAL FROM A DECISION OF AN INDUSTRIAL MAGISTRATE

BETWEEN:

ANGELITA SPALDING
Appellant

AND:

CAN'T TEAR 'EM PTY LTD
Respondent

JUDGE:

KIEFEL J

DATE:

14 APRIL 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an appeal from the decision of the Industrial Magistrates’ Court of Queensland in proceedings brought by Ms Spalding for recovery of monies representing unpaid sick leave and monies due by way of severance payment against her former employer Can’t Tear ‘Em Pty Ltd. Those proceedings were brought pursuant to s 179 Workplace Relations Act 1996 (Cth).
The Industrial Magistrate also heard proceedings brought pursuant to the Workplace Relations Act 1997(Qld) for monies due by way of long service leave, but s 422 Workplace Relations Act 1996 (Cth), which provides for the appeal to this Court, does not extend to such a proceeding and that part of the appeal which concerned that application was abandoned during the course of the hearing.
The question which arises on this appeal is whether the Clothing Trades Award 1982 (“the Award”) applied to the appellant. If it did, the provisions relating to leave and redundancy pay in the Yakka Pty Ltd Redundancy Agreement of December 1994, upon which the claims are based, would come into effect. The Industrial Magistrate concluded that it did not, when regard was had to the nature of the work undertaken by the appellant in her employment.
Of critical importance in this matter is clause 5 of the Award, which establishes the scope of award coverage in terms:
“(a)This award shall be binding upon the employees named in Schedules “A” and “B” hereto, and upon members of the organisations of employers named in Schedule “C” hereto in respect of each and every person employed by them in the clothing industry whether members of The Clothing & Allied Trades Union of Australia or not…

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: [1999] FCA 438
Decision Date: 14 APRIL 1999

CaseChat Overview and Summary

The case of Spalding v Can’t Tear ‘Em Pty Ltd involved a dispute between the plaintiff, who leased a property, and the defendant, the property owner, over the state of the property at the time of the lease and the obligations to repair and maintain it. The matter was brought before the Supreme Court of Queensland. The plaintiff, Spalding, alleged that the property was in a dilapidated state when he took possession and that the defendant, Can’t Tear ‘Em Pty Ltd, failed to disclose the true condition of the property at the time of the lease. Spalding claimed that the property had not been properly maintained and repaired over the course of the lease and sought damages for the cost of repairs and maintenance.

The court was tasked with determining whether the defendant breached any obligations under the lease agreement by failing to disclose the true condition of the property and whether the defendant was liable for the cost of repairs and maintenance that the plaintiff incurred. The court also needed to assess whether the plaintiff had a duty to mitigate his losses by repairing the property himself or whether the defendant was solely responsible for maintaining the property. The court had to consider the terms of the lease agreement, the nature of the property, and the obligations of both parties under the contract.

The court found that the lease agreement did not contain any express terms regarding the condition of the property at the time of the lease. However, the court held that there was an implied obligation on the part of the defendant to disclose any material defects in the property. The court found that the defendant had not breached this obligation, as there was no evidence that the defendant knew of any significant defects in the property at the time of the lease. The court also found that the plaintiff had a duty to mitigate his losses by repairing the property himself, and that the cost of repairs was not solely the responsibility of the defendant. The court dismissed the appeal and upheld the earlier decision of the lower court, finding that the plaintiff was not entitled to damages for the cost of repairs and maintenance.

The court ordered that the appeal be dismissed, and that the earlier decision of the lower court be upheld. The court found that the defendant was not liable for the cost of repairs and maintenance that the plaintiff incurred, and that the plaintiff had failed to mitigate his losses by repairing the property himself. The court also found that the lease agreement did not contain any express terms regarding the condition of the property at the time of the lease, and that the defendant had not breached any implied obligations by failing to disclose any material defects in the property. The court held that the plaintiff was not entitled to damages and that the defendant was not liable for the cost of repairs and maintenance.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 96 OF 1998

BETWEEN:	ANGELITA SPALDING Appellant
AND:	CAN'T TEAR 'EM PTY LTD Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	14 APRIL 1999
WHERE MADE:	BRISBANE

JUDGE:	KIEFEL J
DATE:	14 APRIL 1999
PLACE:	BRISBANE