FEDERAL COURT OF AUSTRALIA

Hardcastle v Mitch Enterprises Pty Ltd [2016] FCA 1569

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 18 to 38 of the statement of claim dated and filed 27 July 2016 be dismissed summarily pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the respondents’ costs of the amended interlocutory application, less the portion attributable to the abandoned application for security for costs, as agreed or assessed.

3.    The parties are to provide short minutes for the next procedural steps (either agreed or separately), including as to pleadings and mediation, by 4.00 pm on Friday, 3 February 2017.

4.    The matter be listed for a case management hearing at 9.30 am on Thursday, 9 February 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an amended interlocutory application by the respondents seeking summary dismissal of parts of a statement of claim filed by the applicant, Mr Hardcastle. The statement of claim dated 27 July 2016 was filed in support of an originating application dated 19 May 2016 and filed on 20 May 2016.

2    At the hearing of the application, a claim by the respondents for security for costs in part of the interlocutory application was not pressed.

3    For the reasons that follow, the respondents’ application for summary dismissal of parts of the statement of claim must be allowed, with costs as to that part of the interlocutory application.

Summary of Mr Hardcastle’s case as pleaded

4    The following allegations made by Mr Hardcastle do not appear to be in dispute, but even if they are in some respect it is sufficient to state them for the purposes only of this adjudication. Nothing that follows should be treated as being the product of any adjudication of any fact or issue beyond the present pleading points.

5    Mr Hardcastle’s case arises out of his employment relationship with the first respondent, Mitch Enterprises Pty Ltd. At all relevant times, Mitch Enterprises provided financial planning advice, arranged financial products for customers and also arranged finance for customers for which it was paid commissions by third-party financial institutions. The second respondent, Mr Daniell, was at all material times the sole director of Mitch Enterprises.

6    Mr Hardcastle claims that he commenced working for Mitch Enterprises as a “contractor for services”, which I take to mean or be equivalent to an independent contractor, in March 2003. He changed his employment to be a “direct employee” pursuant to a contract of service in mid-2004. At all material times he was an Australian Financial Services Representative appointed under the Corporations Act 2001 (Cth) and at a later date an Authorised Credit Representative appointed under the National Consumer Credit Protection Act 2009 (Cth).

7    Prior to Mr Hardcastle working for Mitch Enterprises, he was engaged in his own financial planning business and had a portfolio of existing clients which he took with him to Mitch Enterprises. He claims the industry average commission share paid to a financial planner who worked as a contractor without any retainer was 80%, and that the average earnings in the industry of an employee financial planner of Mr Hardcastle’s experience and standing in the period from 2010 to 2016 was $110,000 per annum.

8    In the period from approximately 3 March 2003 to 30 June 2004, Mr Hardcastle worked for Mitch Enterprises as a “contractor for services”, pursuant to an agreement entered into in or about late February 2003. That is, he was an independent contractor for 16 months, concluding on 30 June 2004. His job was to service customers of Mitch Enterprises by performing the tasks of a financial advisor and mortgage broker. He was to be paid a monthly retainer, the rate of which increased at different points in time, and certain upfront and trailing commissions. His case is that his commissions were to be calculated as a percentage of the commissions due to Mitch Enterprises, with the percentage figure changing according to the particular service he provided across three categories:

(1)    60% of upfront commissions for customers introduced by Mr Hardcastle;

(2)    30% of upfront commissions for services in relation to other customers; and

(3)    30% of all trailing commissions for customers of Mitch Enterprises.

9    In the almost 12-year period from 1 July 2004 to 11 February 2016, Mr Hardcastle worked for Mitch Enterprises as a “direct employee” pursuant to a contract of service entered into in or about late June 2004. His case is that although the basis for his employment changed, the duties and remuneration arrangements did not, apart from the rate of the monthly retainer increasing from particular dates. It is convenient to continue to refer to his status during this period of work as being a direct employee as a clear point of distinction from the 16 month period throughout 2003 and 2004 when he was an independent contractor.

10    In about November 2005, Mr Daniell acquired the third respondent, Origin Finance Pty Ltd. He was its sole director thereafter. Origin Finance performed services as a mortgage broker for customers and was paid commissions by the mortgagee for settled mortgages. Upon Origin Finance being acquired by him, Mr Daniell, on behalf of Mitch Enterprises, directed Mr Hardcastle to perform work as a mortgage broker for Origin Finance as well. Mr Hardcastle performed this work for Origin Finance via Mitch Enterprises until February 2016.

11    Mr Hardcastle was paid a monthly retainer by Mitch Enterprises and received a share of commissions in respect of the Origin Finance mortgage broking business. However, at all times he remained an employee of Mitch Enterprises.

12    Mr Hardcastle’s central complaint from the time he became a direct employee on 1 July 2004 may be summarised as follows:

(1)    he was not paid his share of all of the commissions and trailing commissions that he was due arising from the work he performed for Mitch Enterprises (the financial services commissions); and

(2)    he was not paid, apparently at all, the trailing commissions arising from mortgage broking work performed for Origin Finance at the direction of Mitch Enterprises via Mr Daniell (the mortgage broker trailing commissions).

He also claims outstanding payments of long service leave, but that does not need to be considered as any part of this adjudication.

13    Mr Hardcastle’s suit against the respondents seeks the payment of the commissions that he asserts he is entitled to as damages for breach of contract. The present interlocutory application does not seek any relief in relation to that claim. For that reason, this is only a partial summary dismissal application.

14    Mr Hardcastle also seeks damages pursuant to s 236 of the Australian Consumer Law (ACL), which is to be found in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA), and/or by way of the corresponding provisions of the CCA when it was known as the Trade Practices Act 1974 (Cth). For convenience and ease of reading I will only refer to the ACL provisions because nothing turns on the way in which the transitional provisions operate.

15    The ACL claims are brought as two separate and distinct causes of action.

First ACL cause of action – misleading or deceptive conduct

16    The first ACL cause of action involves a claim of misleading or deceptive conduct in trade or commerce contrary to ss 18 and 31 of the ACL in relation to representations that Mr Hardcastle asserts were made to him (both by way of commission and omission) about his remuneration, and in particular about the commissions he would be paid, in relation to the formation of both the subcontractor and direct employment contracts. It is not necessary for present purposes to consider the precise nature of those alleged representations, nor why they are said to have been misleading or deceptive. What matters is that Mr Hardcastle’s pleaded complaint concerns his reliance upon those representations in making his decision on each occasion to enter into the employment contract.

17    A copy of a proposed amended statement of claim narrows that claim to assert that Mr Hardcastle was induced by the representations of the respondents to take up the direct employee position in July 2004, including conduct in failing to disclose an intention to alter his remuneration terms as to the payment of commissions and trailing commissions. That is, no claim is to be pressed, as indicated by the proposed amendment statement of claim, in relation to the 16 month period in 2003 and 2004 as an independent contractor. This interlocutory application has therefore been considered upon the basis that Mr Hardcastle’s case concerns unpaid entitlements as a direct employee in the period from 1 July 2004 to 11 February 2016, but ultimately claiming only those amounts that were not paid in the period from six years prior to filing his application on 20 May 2016 in an attempt to meet the limitation period point addressed below.

18    In the proposed amended statement of claim, Mr Hardcastle asserts that he lost the opportunity to refuse to take up direct employment and instead remain a contractor. It is further asserted that those representations and the alleged failure to disclose were conducted in pre-contractual negotiations and in the course of trade and commerce within the meaning of that term in the ACL.

19    Mr Hardcastle asserts that to the extent the representations were made as to a future matter, they were made falsely or alternatively without reasonable grounds for making them, relying on s 4(2) of the ACL.

Second ACL cause of action – unconscionable conduct

20    The second ACL cause of action involves a claim of unconscionable conduct by Mitch Enterprises and Origin Finance, through their sole director, Mr Daniell, for the portion of Mr Hardcastle’s employment in the period from May 2010 to May 2016. This claim concerns conduct in relation to the alleged failure to pay Mr Hardcastle the share of commissions to which he asserted he was entitled as a benefit of his direct employment contract. Most of that alleged unconscionable conduct was said to have occurred prior to May 2010, although one particular refers to Mr Daniell refusing to respond in writing to email correspondence with respect to outstanding commission payments, including in four emails in the period between December 2011 and June 2012.

The summary dismissal application

21    The respondents’ summary dismissal application is brought by way of an amended interlocutory application filed on 15 September 2016, replacing an original interlocutory application filed on 30 August 2016. The application is made pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), supported as required by an affidavit stating the grounds of the application and the facts and circumstances relied upon. The relevant test to be met under both provisions is that the respondents discharge the onus of satisfying the Court that Mr Hardcastle “has no reasonable prospect of successfully prosecuting … part of the proceeding”. Section  31A(3) provides:

For the purposes of this section, … part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success

22    Section 31A(2) requires a practical judgment by this Court as to whether Mr Hardcastle has more than a fanciful prospect of success. More is required than a view that a factual dispute is likely to be resolved in favour of the respondents. An argument by Mr Hardcastle apparently precluded by existing authority may not be enough if there is scope for such authority to be overruled, qualified or further explained. In those circumstances, summary processes must not be used to stultify the development of the law. However, “where the success of proceedings is critically dependent upon” a proposition of law contradicting a binding decision of the High Court, it is proper to conclude that the proceedings have no reasonable prospect of success. See Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at 132 [25].

Misleading or deceptive conduct claim – ss 18, 31 and 236 of the ACL

23    The first part of the respondents’ summary dismissal case is that the component of the statement of claim concerning the allegations of misleading or deceptive conduct which are said to extend to Origin Finance cannot be sustained because Origin Finance was not part of Mr Hardcastle’s work arrangements until it was acquired by Mr Daniell in about November 2005, well over a year after his direct employment commenced on 1 July 2004. It was properly conceded by counsel for Mr Hardcastle that was so and that appropriate amendments would need to be made to remove those references to Origin Finance. As the proposed amended statement of claim will be finalised consequent upon this decision, there is no need for the impact of that concession to be spelt out in any greater detail, although it is formally noted.

24    The second part of the respondents’ case is that the misleading or deceptive conduct case cannot be sustained against Mitch Enterprises or Mr Daniell for two reasons discussed below.

25    First, the respondents contend that Mr Hardcastle’s case does not allege any relevant prejudice or disadvantage because it was not shown that he could have acted in some other way or refrained from acting in some way which would have been of greater benefit or less detriment than the course in fact adopted: Marks v GIO Australia Holdings Limited [1998] HCA 69; (1998) 196 CLR 494 at 514 [48].

26    On a somewhat beneficial reading of the present pleadings, Mr Hardcastle is alleging that had the representations not been made to him, including by way of omission, he would not have agreed to the change in his employment arrangements to his detriment by reason of thereby being entitled to a lower overall level of remuneration. He alleges it was represented to him that outstanding commission payments generated during his time as a contractor would be settled “soon”, suggesting a belief, or at least an allegation of a belief, that he already had such an entitlement during the period that he was a contractor and a belief this entitlement would continue in the direct employee role. Mr Hardcastle is therefore at least suggesting reliance on some detriment, even if the alleged prior outstanding commission payments were not in fact settled so as to permit quantification as to what precise disadvantage he alleges he suffered. As the factual position on this point cannot be clearly resolved in the respondents’ favour on the face of the pleadings in the statement of claim, I do not consider that this is an appropriate basis upon which to order summary dismissal of the misleading or deceptive conduct allegation paragraphs of the statement of claim.

27    The second basis for seeking summary dismissal of Mr Hardcastle’s misleading or deceptive conduct case against Mitch Enterprises and Mr Daniell is that the six-year limitation period preceding the filing of the application on 20 May 2016 precluded reliance on causes of action accruing before 20 May 2010, yet Mr Hardcastle’s case entailed reliance on unpaid entitlements, and thus an accrued cause of action, arising many years before 2010.

28    It was common ground that the first non-payment or underpayment of financial services commissions alleged to be due to Mr Hardcastle took place well before May 2010. On the evidence, it was an irresistible inference, although not conceded, that the first non-payment of mortgage broker trailing commissions alleged to be due to Mr Hardcastle must also have taken place well before May 2010, given that he pleaded that he was directed to do that work in late 2005 and alleged that he in fact did that work for Origin Finance on behalf of Mitch Enterprises in tandem with doing work for Mitch Enterprises from that time onwards.

29    The dispute between the parties on this limitation issue therefore turned on the question of whether there was:

(1)    a single cause of action in relation to each category of non-payment or underpayment of commissions, which accrued in each case from the first date of non-payment of those particular commissions and therefore well before the limitation period cut-off; or

(2)    a separate cause of action in respect of each such instance of non-payment or underpayment of those particular commissions, with each such cause of action accruing from the date of that non-payment or underpayment being due, each having its own six-year limitation period.

30    In support of the single cause of action argument, the respondents rely upon Murphy v Overton Investments Pty Limited [2004] HCA 3; (2004) 216 CLR 388 at 410-11 [55]-[56]. That was a case in which prospective lessees of a retirement village unit were misled into entering into a 99 year lease by a brochure that failed to indicate all the types of expenditure that they would be charged for. The additional omitted items of expenditure were only sought to be charged to the lessees some years later, long after the lease was entered into. The High Court held that no loss was incurred until the additional expense items were sought to be charged, this consequence of the misleading conduct being hidden and only prospective until then. Accordingly the limitation period did not commence until that contingency became a loss-causing reality.

31    Reliance was also placed by the respondents on Jobbins v Capel Court Corporation Limited (1989) 25 FCR 226 at 228.7 and 230.5. The passage at 230.5 cites and quotes James v ANZ Banking Group Ltd (1986) 64 ALR 347 at 392 and also Calmao Pty Limited v Stradbroke Waters Co-Owners Co-operative Society Limited (1989) 21 FCR 28 at 31.7. Those cases support the principle that any subsequent and fresh loss from the same basic wrong does not give rise to a new cause of action. Once an applicant has suffered loss or damage relevant to the claim, time begins to run, even if damage continues to grow. This aspect of Jobbins appears to have survived the criticism of it and like English cases preceding it in Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514 at 528.3, 529.5, 532.3. That criticism was confined to the notion, firmly put to rest in Wardley, that the necessary loss or damage occurs when a misrepresentation occurs and the contract thereby induced is entered into, without more. Such supposed loss or damage was regarded as being a mere contingency until the first loss or damage-causing event in fact occurs.

32    If the loss or damage is only contingent, then time does not start to run unless and until that contingency eventuates or otherwise produces at the outset a crystallised, if not quantified, loss or damage: Wardley at 532-3; Murphy v Overton Investments at 410 [55]. As to how a loss may occur at the time of entering into a contract even though dependent on a contingency, see: Wardley at 544-5 and Commonwealth of Australia v Cornwell [2007] HCA 16; (2007) 229 CLR 519 at 542-3 [70]-[71]. In some cases there will be no loss at all able to be shown, and in others no effective limitation period until a necessary loss-causing event occurs.

33    The respondents’ case does not turn on such fine distinctions. For present purposes, the respondents bring this application upon the assumed (but not admitted) basis that misleading or deceptive conduct did in fact take place and that the relevant non-payment or underpayment giving rise to loss has already taken place. It is a characterisation and timing argument, as limitation period points often must be, especially when taken before the close of pleadings.

34    The respondents’ argument was advanced partially in anticipation of an extension of the causes of action foreshadowed in a proposed amended statement of claim and perhaps second amended statement of claim, which might have indicated that this application was premature. It was also apparently designed to meet the following warning in Wardley at 533.9 against interlocutory determination of a limitation point except in the clearest of cases:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.

35    The respondents’ effective position was that this was the clearest of limitation points unable to be met by more time, better pleadings or the final form of the evidence. That is because the distinction being drawn by the High Court in Murphy v Overton Investments at 410-11 [56] between losses that will and will not be time-barred was not between the same kind of loss arising out of the same asserted misleading or deceptive conduct but at different points in time, but rather between different kinds of loss crystallising at different points in time, even if they are alleged to have arisen out of the same misleading or deceptive conduct. Provided a category of loss remains truly contingent, the limitation period will not run in relation to it.

36    The respondents argued that, unlike Murphy v Overton Investments, Mr Hardcastle’s case as pleaded was, and had to remain, confined to an allegation of one kind of loss, or at most two kinds of loss based on the categories of commissions in the statement of claim, that must have been incurred, if capable of being incurred at all, many years before the May 2010 limitation period. No pleading change was possible to overcome this problem. While Murphy v Overton Investments admits of the possibility of some kinds of loss falling foul of a limitation period and others not, this was not such a case. In this case, Mr Hardcastle is necessarily either alleging a single cause of action of misleading or deceptive conduct in relation to both types of commission payments, or at most upon a more generous (and quite possibly unwarranted) interpretation of the case able to be brought on the allegations he makes, two causes of action, being one each for the financial services commissions and for the mortgage broker trailing commissions. It was argued, in effect, that Murphy v Overton Investments gives no license to treat each underpayment or non-payment of commission over time within each category as constituting a separate cause of action with its own limitation period. In those circumstances, this could not be repaired by Mr Hardcastle re-pleading his case in a manner that suggested that each non-payment or underpayment was a separate cause of action so as to artificially create the appearance of a new start (or many new starts) to the limitation period.

37    Upon the generous assumption of there being available to Mr Hardcastle two causes of action arising from the allegations of misleading or deceptive conduct, the determination of when each cause of action accrued and therefore when each limitation period expires or expired requires a practical determination. On Mr Hardcastle’s own account in the portions of his affidavit tendered by the respondents and admitted into evidence on the application and as pleaded in the statement of claim, work was done by him giving rise to:

(1)    financial services commissions payable by third-party financial product suppliers to Mitch Enterprises, of which a share was then payable to Mr Hardcastle, during the course of the 2004-2005 financial year and for each financial year after that until his employment ceased in February 2016; and

(2)    mortgage broker trailing commissions payable by third-party financial product suppliers to Mitch Enterprises via Origin Finance, of which a share was then payable to Mr Hardcastle, during the course of the 2005-2006 financial year and for each financial year after that until his employment ceased in February 2016.

38    In the ordinary course of a commission-generating business such as that run by Mitch Enterprises, it would be expected that commissions would have been paid by third-party financial product suppliers either in the course of the financial year in which the commission work was done, or perhaps in the case of work done late in a given financial year, in the following financial year. Thus at most there would be a lag into the next financial year such that:

(1)    in the case of work done by Mr Hardcastle directly for Mitch Enterprises in his first year as a direct employee, being 1 July 2004 to 30 June 2005, any commission payments due to Mitch Enterprises as a result of that work would have been paid to Mitch Enterprises either during that financial year, or at the latest during the following 1 July 2005 to 30 June 2006 financial year, triggering Mr Hardcastle’s entitlement to his share shortly thereafter, and thereby any loss due to his share not being passed on; and

(2)    in the case of work done by Mr Hardcastle for Origin Finance via Mitch Enterprises in the part of the financial year after Origin Finance was acquired by Mr Daniell, being 1 December 2005 to 30 June 2006, any commission payments due to Mitch Enterprises as a result of that work would have been paid to Mitch Enterprises either during that financial year, or at the latest during the following 1 July 2006 to 30 June 2007 financial year, triggering Mr Hardcastle’s entitlement to his share shortly thereafter, and thereby any loss due to his share not being passed on.

39    It is therefore impossible to see Mr Hardcastle’s entitlement, non-payment and therefore his asserted loss occurring any later than:

(1)    some time in the 1 July 2005 to 30 June 2006 financial year in relation to the financial services commissions; and

(2)    some time in the 1 July 2006 to 30 June 2007 financial year in relation to the mortgage broker trailing commissions.

40    Counting forward from the latest date in each of those periods, being 30 June 2007, almost nine years elapsed before these proceedings were commenced on 20 May 2016. Therefore the misleading or deceptive conduct aspect of the proceedings was commenced, at best, almost three years out of time and is therefore statute barred.

41    Summary judgment must be entered in favour of the respondents in respect of the misleading or deceptive conduct cause of action pleaded at paragraphs 18 to 29 of Mr Hardcastle’s statement of claim.

Unconscionable conduct claim – ss 21, 22 and 236 of the ACL

42    The basis for seeking summary dismissal of Mr Hardcastle’s unconscionable conduct case is an argument that this cause of action, relying on ss 21(1)(b) and 22 of the ACL, necessarily turns on proscribed unconscionable conduct in trade or commerce “in connection with … the acquisition … of … services from a person”. The term “services” is defined in s 4 of the Trade Practices Act as follows, in the form in which it appeared as at 31 December 2010 and relied upon by Mr Hardcastle (emphasis added to the last two lines):

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(a)    a contract for or in relation to:

(i)    the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii)    the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii)    the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b)    a contract of insurance;

(c)    a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(d)    any contract for or in relation to the lending of moneys;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

43    The respondents’ case is that the exclusion emphasised above at the end of the definition of “services” after (d), and its equivalent in the same definition in s 2 of the ACL, means that s 21 of the ACL, and thus s 22, does not give rise to a cause of action, as claimed by Mr Hardcastle, in relation to rights or benefits arising from the performance of work under a contract of service. There is no material difference at any relevant time, if at all, between the terms of the exclusion from the definition of “services” in s 4 of the Trade Practices Act or in s 2 of the ACL.

44    Mr Hardcastle’s case is that the exclusion only precludes an employer suing an employee retained under a contract of service, and not the other way around. That is, the ACL does not prevent any direct employee from suing under a cause of action created by that legislation which relies on the definition of “services”. For the following reasons I do not accept that interpretation.

45    As counsel for the respondents pointed out, the definition of “services” is as it previously appeared in equivalent provisions in the former Trade Practices Act. There is no material difference in the ACL other than that the definition is confined to a regime dedicated to consumer protection, which is itself of some significance. The definition in its former and broader context has been interpreted as excluding consideration of rights or benefits, meaning conditions of employment, arising out of “the performance of work under a contract of service”, including such rights or benefits as are to be provided under contracts for the performance of work in the future: Adamson v New South Wales Rugby League Limited (1991) 27 FCR 535 at 548-9.

46    While Adamson was a single judge decision by Hill J, it was not appealed and its correctness has not apparently been doubted. In reaching that conclusion, Hill J followed the prior decision of Adamson v West Perth Football Club Inc (1979) 39 FLR 199 at 228-9 as a matter of comity, observing that the prior decision stated conclusions rather than reasoning leading to those conclusions. The observation was made by Hill J that the language of the definition of services was “not a model of clarity”. However even with those reservations, Adamson affords no support for Mr Hardcastle’s suggested distinction of a differential application of the exclusionary effect of the exception to the definition of “services” so that it operates to restrict employers as to the cases they could bring, but does not restrict employees in the same way. Nor was any compelling reason advanced for such a distinction to be drawn. None is apparent. Indeed the exclusion would be largely toothless if it was to be read down in that way.

47    As counsel for the respondents further pointed out, such a limitation to cases brought by employers but not to cases brought by employees necessarily failed to appreciate that the definition of “services” is referable not just to s 21, but to a whole host of different sections in the ACL, wherever that word appeared (necessarily in a consumer protection context). Counsel for Mr Hardcastle suggested the wider definition could be read into some provisions of the ACL, but not others. There is nothing in the text or the purpose of the ACL generally, or in the definition of “services” in s 2 of the ACL in particular, that indicates the definition was intended to have what counsel for the respondents aptly described as a “curious construction”. In accepting the respondents’ arguments, in my opinion the evident purpose behind the exclusion in the definition of “services” was to leave conditions of employment for employment law rather than for what might generally be called trade practices or consumer protection law. The same exclusion does not apply to contracts for services, because they fall more into the trade practices or consumer protection area, rather than employment. That is so even if the lines between the two types of employment of workers are not always sharply drawn, with this being a well-known area of dispute and litigation in employment law.

48    The arguments advanced on behalf of Mr Hardcastle were not able to surmount the impediments to the exclusion from the definition of “services” applying to Mr Hardcastle’s case of performance of work under a contract of service. I am not persuaded that the admittedly less than ideal language in the definition of “services” should be read in a way that produces perverse and unlikely outcomes and consequences. The definition of “services” does not extend to conditions of employment in the form of rights or benefits arising from the performance of work under a contract of service. Therefore it does not apply to Mr Hardcastle’s rights or benefits as conditions of employment arising from his performance of work under his contract of service with Mitch Enterprises.

49    This issue is therefore also resolved in favour of the respondents. Summary judgment must therefore also be entered in favour of the respondents in respect of the unconscionable conduct cause of action pleaded at paragraphs 30 to 38 of Mr Hardcastle’s statement of claim.

Conclusion

50    The respondents’ application for summary judgment in respect of the ACL claims must be upheld. Accordingly those claims pleaded at paragraphs 18 to 38 of the statement of claim must be dismissed summarily pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

51    Mr Hardcastle must pay the respondents’ costs of the amended interlocutory application, less the portion attributable to the abandoned security for costs application, as agreed or assessed.

Associate:

Dated:    22 December 2016