Taylor v CGU Insurance Ltd (No.2) - [2004] FMCA 1000

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAYLOR v CGU INSURANCE LTD (No.2)

[2004] FMCA 1000

TRADE PRACTICES – Misleading and deceptive conduct – alleged representation that insurance investigator would be guaranteed two jobs per week.

Trade Practices Act 1974, ss.51A, 51AC, 52, 82

J.J. Savage v Blakney (1970) 119 CLR 435 at 442-443

Applicant:

ROBERT FLYNN TAYLOR

Respondent:

CGU INSURANCE LTD

File No:

PEG 46 of 2004

Delivered on:

22 December 2004

Delivered at:

Melbourne (by video link to Perth)

Hearing Dates:

8 & 9 December 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr G Porter

Solicitors for the Applicant:

Talbot & Olivier

Counsel for the Respondent:

Mr A Beech

Solicitors for the Respondent:

Dwyer Durack

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 46 of 2004

ROBERT FLYNN TAYLOR

Applicant

and

CGU INSURANCE LTD

Respondent

REASONS FOR JUDGMENT

In this application Robert Flynn Taylor (the applicant) claims against CGU Insurance Ltd (the respondent) damages for breach of contract or, in the alternative, damages for breach of the provisions of the Trade Practices Act 1974 (the TPA).
The applicant relies upon a minute of amended application filed on

30 July 2004, wherein he claims damages pursuant to section 82 of the TPA for misleading and deceptive conduct in breach of section 52, 51A and 51AC of the TPA, and in the alternative damages for breach of an agreement made on or about 21 December 1998.
The background in this matter is relatively straightforward. The applicant had been engaged in a business known as "Q Services", carrying out professional surveillance and investigation inquiries and had commenced work as an inquiry agent with Meridien Services (Meridien) on 5 June 1996 as an inquiry agent specialising in covert surveillance. He had then applied for an inquiry agent licence, which ultimately he obtained in January 1997.
Whilst employed at Meridien Services the applicant claims to have been engaged for a minimum of 40 hours and up to 70 hours (sometimes more) per week. Meridien had insisted that the applicant be employed by his own company, and he then became a shareholder and employee of a company known as "Melusina Pty Ltd" (Melusina).
The respondent at all material times carried on business as an insurance company.
In brief terms, it would appear that the applicant left Meridien to work for the respondent and did so on or about 29 December 1998. That followed, according to the applicant, discussions between him and representatives for the respondent on or about 22 December 1998. The gist of the complaint by the applicant is that he believed that upon joining the panel of surveillance operators conducted by the respondent that he would be allocated two jobs per week. This did not eventuate and the claim by the applicant against the respondent, as indicated, arises either by way of breaches of the TPA and/or breach of contract. The applicant claims, in his minute of amended application, damages being lost fees he would have received from the respondent…

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: [2004] FMCA 1000
Decision Date: 22 December 2004

CaseChat Overview and Summary

The Federal Magistrates Court of Australia was presented with a case where Robert Flynn Taylor (the applicant) sought damages against CGU Insurance Ltd (the respondent), alleging breach of contract and/or breaches of the Trade Practices Act 1974 (TPA). Taylor claimed that he had been misled into believing that upon joining the respondent's panel of surveillance operators, he would receive a guaranteed minimum of two jobs per week. Taylor argued that this alleged representation led him to resign from his previous employer, Meridien Services, in reliance on the promise made by the respondent. The case centred around whether such a representation was made and if it constituted a term of the contract or a misleading and deceptive conduct under the TPA.

The primary legal issues revolved around the interpretation of the conversation between Taylor and David Slatter of the respondent, and whether this conversation amounted to a contractual term or a misleading and deceptive conduct under the TPA. Additionally, the court had to determine whether the respondent had indeed made any representation that could be considered a breach of the TPA.

The court examined the evidence provided by both parties, including affidavits, witness testimonies, and correspondence between the parties. The court found that the conversation between Taylor and Slatter was merely a discussion about potential work arrangements and not a binding promise. Slatter's evidence, which denied making any such promise, was deemed credible. Furthermore, the court noted that Taylor's subsequent actions, such as seeking work from other insurers shortly after the alleged conversation, contradicted his claim that he had relied exclusively on the respondent for work. The court also highlighted the lack of written agreement and the industry practice of not guaranteeing a specific number of jobs to panel members.

Based on the evidence, the court concluded that there was no clear and unequivocal representation made by the respondent that Taylor would receive a minimum of two jobs per week. The court found that even if such a conversation had occurred, it did not amount to a contractual term or misleading and deceptive conduct under the TPA. The court dismissed Taylor's application, finding that there was no basis for the claim under the TPA or for breach of contract. The respondent's counterclaim was also dismissed as the respondent did not pursue it.

In summary, the court found that the respondent did not make any representation that Taylor would be guaranteed a minimum of two jobs per week, and therefore, the claim for damages failed. The application was dismissed with costs.

Orders