WRIGHT v Norris Real Estate Pty Ltd - [2016] FCCA 707

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT v NORRIS REAL ESTATE PTY LTD

[2016] FCCA 707

Catchwords:
INDUSTRIAL LAW – Commonwealth – Constitutional power – Judicial power of Commonwealth – Federal Circuit Court of Australia – jurisdiction – accrued jurisdiction – adverse action claim based upon pregnancy – cross claim for breach of duty with respect to engaging contractors – no common disputed facts – cross claim dismissed.

Legislation:

Corporations Act 2001

Fair Work Act 2009

Ogawa v Federal Magistrate Phipps [2006] FCA 361
Fencott v Muller (1983) 152 CLR 570
Re Wakim (1999) 198 CLR 511

Applicant:

AMY WRIGHT

Respondent:

NORRIS REAL ESTATE PTY LTD

File Number:

MLG 289 of 2015

Judgment of:

Judge Riethmuller

Hearing date:

10 March 2016

Date of Last Submission:

10 March 2016

Delivered at:

Melbourne

Delivered on:

5 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Fitzgerald

Solicitors for the Applicant:

Cottier Stenning Lawyers

Counsel for the Respondent:

Mr Hooper

Solicitors for the Respondent:

Muir Legal

ORDERS

The cross claim be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 289 of 2015

AMY WRIGHT

Applicant

And

NORRIS REAL ESTATE PTY LTD

Respondent

REASONS FOR JUDGMENT

The applicant seeks orders striking out the cross-claim on the basis that the court does not have jurisdiction to deal with the matters raised in the cross-claim.
The applicant brought proceedings pursuant to the Fair Work Act 2009 alleging that the respondents unlawfully took adverse action against her with respect to her employment arrangements following a period of time when she was not working as a result of having a child. The applicant alleges that she took maternity leave at about the time of the birth of her child.
The respondents deny that claim, saying that she terminated her employment. As a consequence, the respondents say that they are not obliged to carry out the matters set out in the Act with respect to consideration of the return of a person to employment. The applicant alleges that the Respondents thereafter terminated her employment for a prohibited reason.
The cross-claim brought by the second respondent is based upon events that are said to have occurred prior to the applicant taking maternity leave or ceasing her employment to have her child. The cross-claim sets out a number of claims based upon the common law duties of the applicant to the respondent as a consequence of her contract of employment. (To the extent that the respondents sought to rely upon provisions of the Corporations Act 2001, this was abandoned at the hearing on the basis that the court could not gain accrued or associated jurisdiction with respect to those provisions, having regard to the terms of that legislation and the decision in Ogawa v Federal Magistrate Phipps [2006] FCA 361.
In substance, the respondents allege that the applicant, as a tenancy manager at a real estate agency, used her position to direct work to family members for repairs of premises, failed to obtain compliance certificates with respect to maintenance work,…

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: [2016] FCCA 707
Decision Date: 5 April 2016

CaseChat Overview and Summary

The applicant, Mr. Wright, brought proceedings against the respondent, Norris Real Estate Pty Ltd, in the Queensland Civil and Administrative Tribunal (QCAT). Mr. Wright sought to recover a deposit paid under a contract for the sale of land, alleging that the respondent, acting as the seller's agent, had engaged in misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL). Specifically, Mr. Wright contended that the respondent had misrepresented the property's zoning status, leading him to enter into the contract.

QCAT was required to determine whether the respondent had engaged in misleading or deceptive conduct in contravention of section 18 of the ACL. This involved assessing whether the representations made by the respondent regarding the property's zoning were false or misleading, and whether Mr. Wright had relied on these representations to his detriment when purchasing the property. The Tribunal also had to consider whether the respondent's conduct caused loss or damage to Mr. Wright.

Judge Riethmuller found that the respondent had indeed engaged in misleading and deceptive conduct. The Tribunal was satisfied that the agent had made representations about the property's zoning that were not supported by the available evidence and that these representations were likely to mislead a reasonable consumer. The court applied the principles of section 18 of the ACL, focusing on the objective likelihood of deception or misleading conduct, and concluded that Mr. Wright had relied on these representations when deciding to purchase the property. The Tribunal found that the respondent's conduct had caused Mr. Wright to suffer loss.

Consequently, QCAT ordered that Norris Real Estate Pty Ltd pay Mr. Wright the sum of $20,000, representing the deposit paid under the contract, together with interest and costs.

Orders