Toll Transport Pty Ltd & Ors v Erikson - [2017] FCCA 3120

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOLL TRANSPORT PTY LTD & ORS v ERIKSON

[2017] FCCA 3120

Catchwords:
PRACTICE AND PROCEDURE – Application for injunctive relief pursuant to s.545(2) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) and s.18 of the Federal Circuit Court Act 1999 (Cth) (“the FCC Act”) – application for relief on grounds that respondent contravened s.50 of the Fair Work Act by failing to comply with obligation under the Toll Group and Transport Workers Union Fair Work Agreement 2011-2013 and the Toll Group – TWU Enterprise Agreement 2013-2017 to return applicants’ uniform and property upon the termination of employment – held satisfied that applicants established prima facie case that respondent contravened s.50 of the Fair Work Act and balance of convenience favoured issuing interim injunction – interim injunction made under s.545(2) of the Fair Work Act requiring respondent to return applicants’ uniform and property to applicants.

PRACTICE AND PROCEDURE – Application for relief on grounds that respondent committed tort of injurious falsehood by posting video footage on social media sites – held that the Court has associated jurisdiction to deal with the claims in tort under s.18 of the FCC Act – held satisfied that applicants established prima facie case that respondent committed tort of injurious falsehood and that balance of convenience favoured issuing interlocutory orders restraining respondent from engaging in specified conduct – interlocutory injunction made under s.18 of FCC Act restraining respondent from engaging in specified conduct.

Legislation:

Fair Work Act 2009 (Cth), ss.50, 545

Federal Circuit Court Act 1999 (Cth), ss.15, 18
Federal Circuit Court Rules 2001 (Cth), rr.1.06, 6.14, 6.19, 16.01, 16.06

Cases cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237
Macteldir Pty Ltd v Dimovski [2005] FCA 1528

Radio 2UE Sydney Pty Ltd v Ray Chesterton (2009) 238 CLR 460

ReGroup Pty Ltd v Kazal [2016] FCA 1485
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Swimsure (Laboratories) Pty Ltd v McDonald & Anor [1979] 2 NSWLR 796

First Applicant:

TOLL TRANSPORT PTY LTD (ACN 006 604 191)

Second Applicant:

TOLL PERSONNEL PTY LTD (ACN 110 880 503)

Third Applicant:

TOLL HOLDINGS LTD (ACN 006 592 089)

Respondent:

NEIL LUKE ERIKSON

File Number:

MLG 2651 of 2017

Judgment of:

Judge Jones

Hearing date:

7 December 2017

Date of Last Submission:

7 December 2017

Delivered at:

Melbourne

Delivered on:

7 December 2017

REPRESENTATION

Counsel for the Applicants:

Mr Garrett

Solicitors for the Applicants:

Herbert Smith Freehills

There being no appearance by or on behalf of the Respondent.

ORDERS

The proceedings are adjourned for directions on 18 December 2017 at 9.30am.
Leave be granted to the Applicants to file the affidavit of Anthony Andrew Keir Wood affirmed on 7 December 2017.
Pursuant to r.6.14 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), leave is granted to the Applicants…

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: [2017] FCCA 3120
Decision Date: 7 December 2017

CaseChat Overview and Summary

In *Toll Transport Pty Ltd & Ors v Erikson*, the applicants sought injunctive relief from the Federal Circuit Court of Australia. The dispute arose from the respondent's alleged failure to return company uniforms and property upon the termination of their employment, which the applicants contended constituted a contravention of section 50 of the *Fair Work Act 2009* (Cth). Additionally, the applicants alleged that the respondent committed the tort of injurious falsehood by posting video footage on social media, seeking interlocutory orders to restrain this conduct.

The court was required to determine whether the applicants had established a prima facie case for both the contravention of the *Fair Work Act* and the tort of injurious falsehood. Furthermore, the court had to assess whether the balance of convenience favoured the granting of interim injunctive relief under section 545(2) of the *Fair Work Act* and interlocutory orders under section 18 of the *Federal Circuit Court Act 1999* (Cth).

Applying the principles outlined in *Australian Broadcasting Corporation v O’Neill*, the court considered two main inquiries. Firstly, whether the applicants had demonstrated a sufficient likelihood of success to justify preserving the status quo pending trial, meaning they had established a prima facie case. Secondly, the court weighed the potential inconvenience or injury to the applicants if the injunction were refused against the injury the respondent would suffer if it were granted. The court found that the applicants had satisfied the first inquiry by establishing a prima facie case for both the contravention of the *Fair Work Act* and the tort of injurious falsehood.

Consequently, the court ordered that an interim injunction be made under section 545(2) of the *Fair Work Act*, requiring the respondent to return the applicants' uniforms and property. The court also made interlocutory orders under section 18 of the *Federal Circuit Court Act*, restraining the respondent from engaging in specified conduct related to the injurious falsehood claim, as the balance of convenience favoured granting such relief.

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

Rules 16.01 and 16.06 of the FCC Rules provide, respectively:16.01 Court may make any judgment or orderThe Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.16.06 UndertakingsUnless the Court otherwise orders, an undertaking to the Court has the same force and effect as an order of the Court. Subsection 545(1) of the Fair Work Act provides:(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. I am satisfied that there is a prima facie face that the Respondent has contravened a civil remedy provision; s.50 of the Fair Work Act. Subsection 545(2) of the Fair Work Act relevantly provides:(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;… Subsection 545(4) of the Fair Work Act provides:When orders may be made(4) A court may make an order under this section:(a) on its own initiative, during proceedings before the court; or(b) on application. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“ABC”), the High Court of Australia summarised the principles to be applied to the granting of interlocutory injunctions. In a joint judgment, Gummow and Hayne JJ expressed the applicable test as follows (at [65]):65. The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: “The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”By using the phrase “prima facie case” their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”(Footnotes omitted)

Ratio Decidendi

Legal Principle Established

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