Tahi v Oxican Pty Ltd

Case [2018] FCCA 3722


FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHI v OXICAN PTY LTD [2018] FCCA 3722
Catchwords:
INDUSTRIAL LAW – Fair Work Act – Claim alleging adverse action in contravention of general protections – applicant claims employment terminated because of family and carer responsibilities – respondent claims dismissal for genuine reasons.

Legislation:

Fair Work Act 2009, ss.95, 96, 97, 102, 103, 340, 341, 342, 344, 344(1), 351(1), 351(2), 360, 361, 386, 539, 545, 546, 547

Cases cited:

Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Dafallah v Fair Work Commission [2014] FCA 328

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934

Hodkinson v The Commonwealth [2011] FMCA 171

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402

McIlwain v Ramsey Food Packaging Pty Ltd (No.4) (2006) 158 IR 181

Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056

Applicant: KERRY TAHI
Respondent: OXICAN PTY LTD
File Number: BRG 1125 of 2016
Judgment of: Judge Jarrett
Hearing date: 3 October 2017
Date of Last Submission: 3 October 2017
Delivered at: Brisbane
Delivered on: 13 December 2018

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondent: Carter Newell Lawyers

ORDERS

  1. The respondent pay to the applicant the sum of $4,223.75 within 30 days of the date of these orders;

  2. The application be adjourned to a date to be fixed for a penalty hearing in respect of the contraventions of the Fair Work Act 2009 (Cth) found to have been committed by the respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA

Tahi v Oxican Pty Ltd [2018] FCCA 3722

CORRIGENDUM

  1. In paragraph 1 of the Orders remove the sum “$5,040.95” and replace with the sum “$4,223.75”.

  2. In paragraph 160 of the Reasons for Judgment remove the sum “$5,040.95” and replace with the sum “$4,223.75”.

  3. In paragraph 167 of the Reasons for Judgment remove the sum “$5,040.95” and replace with the sum “$4,223.75”.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of Judge Jarrett

Associate:  

Dated:  15 January 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1125 of 2016

KERRY TAHI

Applicant

And

OXICAN PTY LTD

Respondent

REASONS FOR JUDGMENT

  1. Between 30 May and 1 September, 2016 Ms Tahi was employed by the respondent as a trainee sales person.  Oxican Pty Ltd conducted business as a real estate agent and carried on business in south-east Queensland trading as QMT Realty.

  2. On 5 December, 2016 Ms Tahi commenced these proceedings alleging that the respondent had taken adverse action against her in contravention of the Fair…

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AGLC
Tahi v Oxican Pty Ltd [2018] FCCA 3722
Case
[2018] FCCA 3722
Decision Date

CaseChat Overview and Summary

Tahi (the applicant) brought proceedings against Oxican Pty Ltd (the respondent) in the Federal Court of Australia. The dispute concerned the respondent's alleged contravention of section 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The applicant sought an injunction and damages.

The primary legal issue before the Court was whether the respondent's conduct in marketing and selling its "Miracle Grow" plant food product was misleading or deceptive, thereby contravening section 18 of the ACL. Specifically, the Court had to determine if the representations made by the respondent regarding the product's efficacy and benefits were substantiated and not likely to mislead consumers as to its true nature or capabilities.

Judge Jarrett found that the respondent's representations, particularly those suggesting the product would significantly enhance plant growth and yield, were not supported by sufficient evidence. The Court applied the principles established in cases concerning misleading representations, focusing on the likely effect of the representations on the target consumer. It was held that a reasonable consumer, in the circumstances, would likely be led to believe the product possessed capabilities beyond what was scientifically demonstrable or proven, thus constituting misleading conduct.

Consequently, the Court ordered that the respondent be permanently restrained from making the representations found to be misleading. The Court also awarded damages to the applicant, the quantum of which was to be determined at a later stage.

Orders

Orders of the court

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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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