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),ss178, 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