West v TWG Services Limited - [2009] FCA 1052

FEDERAL COURT OF AUSTRALIA
West v TWG Services Limited [2009] FCA 1052
CIVIL PROCEDURE – service outside Australia – proceeding including claims for misleading and deceptive conduct, statutory entitlements to accrued annual leave and breaches of contract – whether Court has jurisdiction in the proceeding – whether proceeding consists of or includes any one or more of the kinds of proceeding required – whether prima facie case for relief sought – prima facie case for only a small part of relief sought – whether discretion to allow whole of amended application and amended statement of claim to be served outside Australia should be exercised
WORKPLACE RELATIONS – annual leave – whether statutory regime binds foreign employer of employee performing contract of employment in Australia
TRADE PRACTICES – misleading and deceptive conduct – representations as to ongoing employment – whether binding – whether absolute – whether subject to implied term as to termination on reasonable notice – whether prima facie case of reliance on representations
CONTRACT – employment – terms – whether implied term of termination on reasonable notice – whether 24 months’ notice reasonable – whether contract terminated – employee given 4 months’ notice that his assignment to work in Australia would be terminated – whether prima facie case of breach by employer in failing to comply with obligations on termination of assignment to Australia
Workplace Relations Act 1996 (Cth), ss 4(1), 5, 6, 6(1)(a), 13, 172(1), 173, 174, 227, 232, 232(2), 234(1), 234(4), 235(2), 317, 318(1), 318(2), 319(1), 320, 717, 718, 719, 719(1), 720, 727, 727(1)(b), 727(2), 841, 847(1), Pt 7
Workplace Relations Act 1996 (Cth) (as at 20 February 2005), ss 178, 178(1), 178(5A)(c), 178(6), 179, 356(b), 500(1), 506(1), 506(2), 527(1), Sch 1A
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Trade Practices Act 1974 (Cth), ss 51A, 52, 82, 82(1), 86(1), Pts V, VI
Federal Court of Australia Act 1976 (Cth), ss 32(1), 59(2)(g)
Acts Interpretation Act 1901 (Cth), s 38(1)
Constitution s 51(xx)
Federal Court Rules O 8, O 8 r 1, O 8 r 2, O 8 r 3, O 8 r 3(2), O 8 r 3(2)(a), O 8 r 3(2)(b), O 8 r 3(2)(c), O 12 r 2, O 12 r 3, O 13 r 3
Federal Court Rules (as at 15 July 2003), O 8 r 1, O 8 r 2, O 8 r 2(2)(b), O 8 r (2)(2)(c)
Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 (2003) 130 FCR 317 followed
Fencott v Muller (1983) 152 CLR 570 followed
State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 followed
Byrne v Australian Airlines Limited (1995) 185 CLR 410 cited
COLIN WEST v TWG SERVICES LIMITED
VID 1073 of 2008
GRAY J
18 SEPTEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1073 of 2008

BETWEEN:
COLIN WEST
Applicant

AND:
TWG SERVICES LIMITED
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

18 SEPTEMBER 2009

WHERE MADE:

MELBOURNE

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: [2009] FCA 1052
Decision Date: 18 SEPTEMBER 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the case of West v TWG Services Limited involved a dispute where the applicant sought to serve the originating process on the respondent outside of Australia. The applicant was attempting to bring a legal action against the respondent, who was located overseas, and required permission from the court to do so. The Federal Court was asked to decide whether the applicant could serve the originating process on the respondent outside Australia.

The central legal issue before the court was whether the application for leave to serve the originating process on the respondent outside Australia should be granted. This involved considerations under the relevant rules of court regarding service outside Australia and the jurisdictional reach of the Federal Court. The court needed to assess if there were valid grounds to permit such service, taking into account the respondent's location and the nature of the proceedings.

The court found that the applicant had not sufficiently demonstrated that the respondent was amenable to the jurisdiction of the court. Additionally, the applicant had not adequately addressed the potential issues regarding the service of the originating process outside Australia. Consequently, the court concluded that the application for leave to serve the originating process on the respondent outside Australia should be dismissed. The court further determined that no order should be made regarding the applicant's costs associated with this application and granted liberty to the applicant to apply again if appropriate.

Orders

Orders of the court

1. The application for leave to serve the originating process on the respondent outside Australia be dismissed.

2. There be no order as to the applicant’s costs of that application.

3. Liberty be reserved to the applicant to apply.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1073 of 2008

BETWEEN:	COLIN WEST Applicant
AND:	TWG SERVICES LIMITED Respondent

JUDGE:	GRAY J
DATE OF ORDER:	18 SEPTEMBER 2009
WHERE MADE:	MELBOURNE