Monthly Archives: January 2014

High Court to Examine Whether There is an Implied Term of Mutual Trust and Confidence in Australian Employment Contracts

Posted on by

By Adriana Orifici

The High Court has granted the Commonwealth Bank leave to appeal the decision of a majority of the Full Court of the Federal Court in Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (Jacobson and Lander JJ, Jessup J dissenting), which recognised that an implied term of mutual trust and confidence (the Implied Term) exists in employment contracts in Australia. In the special leave application, the issues in dispute were described as giving rise to a ‘test case’.

In Australian employment contracts, terms may be implied in fact or in law.

The Implied Term is implied in law and requires that a party to an employment contract will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Continue reading →

News: Canada’s top court to vote on its own composition

Posted on by

The Supreme Court of Canada, that country’s equivalent to Australia’s High Court, held a hearing this week on the interpretation of its own constituting statute, the Supreme Court Act. Or, to be more precise, some of its judges held that hearing. One of its judges, Nadon J, who was sworn in to the national court last October, did not sit – and, indeed, has never sat – because it is the legality of his appointment that his remaining colleagues must determine. One newspaper has likened the hearing to a tribal council on television’s Survivor.

The legal issue for decision is the statutory qualifications for appointment to the national court. Continue reading →

News: Spry on High

Posted on by

I recently had cause to consult the new ninth edition of ICF Spry’s Equitable Remedies, a tome which I have found very helpful and learned on the topics of specific performance and injunctions in particular. After finding what I needed, I idly browsed through the Preface, as I have difficulty writing Prefaces and I like to see how other authors manage it. However, I do not think I will be taking my Preface-writing tips from Dr Spry. At xi – xii, he criticises the High Court and certain of its judges.

His observations appear to be coloured by the High Court’s decision in Kennon v Spry [2008] HCA 56, where it was decided that Dr Spry would have to pay his ex-wife $2.2 million, and that trust assets were part of the matrimonial property. Indeed, when talking of “eccentric judgments” by the High Court, in footnote 3 on page xi, Dr Spry refers to a judgment of Justice Strickland made in 2005 where he held ‘obviously incorrectly, both that a multilateral release under seal is able to be disregarded unilaterally by the releasor and, moreover, that assets controlled by the releasor in his fiduciary capacity as trustee are to be treated as his personal property.’ Although he does not note it, this was the first instance judgment made in relation to Dr Spry’s family trust which the High Court later upheld. Notoriously, Dr Spry wrote a series of letters to the High Court protesting the decision, letters which he acknowledged had been widely read in the legal profession. Continue reading →

Fine Print Disclaimers May Not Protect Advertising from being Misleading: Australian Competition and Consumer Commission v TPG Internet Pty Ltd

Posted on by

By Dr Jeannie Marie Paterson and Veronica Wong

ACCC v TPG Internet Pty Ltd Case Page

Section 18 of the Australian Consumer Law (previously s 52 of the Trade Practices Act 1974 (Cth)) contains a broad ranging prohibition on conduct that is misleading or deceptive or likely to mislead or deceive. Misleading conduct in advertisements by traders causes harm by distorting the purchasing choices of consumers. This may reduce competition in the market by leading consumers to favour products that don’t have the features that are promoted. It may also increase costs for consumers, incurred either by entering into contracts that are not in their best interests or by incurring search costs that are wasted when they discover that the product does not exist as represented.

In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54, the High Court confirmed importance of s 18 in protecting consumer interests by holding that so-called ‘headline’ advertising may be misleading notwithstanding the existence of a fine print disclaimer qualifying the representations in the headline statement.

The High Court also confirmed that deterrence should play a ‘primary’ role in setting the appropriate penalty to be imposed on a trader for a contravention of s 18. Specifically, the court should consider the need to deter offending conduct and any penalty imposed should be significant enough that it is not merely a cost of doing business. A majority of the High Court (French CJ, Crennan, Bell and Keane JJ; Gageler J dissenting) held that the Full Federal Court erred in setting aside the findings of primary judge and restored the pecuniary penalty of $2 million.

The decision of the High Court in TPG shows that whether an advertisement is misleading contrary to s 18 of the ACL should, as the words of the section suggest, be assessed by reference to the impressions conveyed by the advertisement in the circumstances in which it is delivered, and not merely by reference to the existence of technically correct information available to those consumers who choose to look for it or by reference to the presumed background knowledge of consumers. This approach, combined with the recognition that the penalty for contravention of s 18 is aimed at genuine deterrence of the offending behavior, is entirely consistent with the consumer protection purposes of the legislation. Continue reading →