Creative Smiles Pty Ltd & Anor v Ekera Dental Pty Ltd & Anor [2023] VCC 745 | Case summary

County Court of Victoria|2023-05-12

For the reasons set out, I find that Ekera should not suffer any penalty under the FWA.
I direct the parties to confer about the form of final order and costs in an effort to agree upon orders giving effect to this judgment. If they cannot agree, then by 4.00pm on 22 May 2023, each party is to file with my chambers and serve a written submission and any supporting affidavit material setting out the orders sought and the reasons therefor. The submissions are not to exceed 10 A4 pages, a minimum 12 point typeface, and 40mm margins on either side of the page. By 4.00pm on 26 May 2023, each party may file a reply submission limited to no more than three A4 pages. Unless the parties specifically request an oral hearing or I consider it appropriate after reading the submissions, I propose to decide the question of costs on the papers.

[1] See Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [24]

[3] Ibid at [55] citing Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152 ("CSR")

[5] Trade Practices Commission v CSR Ltd (1991) ATPR 41-076

[16] This acquisition was made before Ekera engaged Herbert Smith Freehills as its solicitors.

[17] I acknowledge that given the recent High Court decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603 conduct occurring after the entry into the written agreement is not relevant to the interpretation of the agreement, at least where the agreement is not a sham or varied.

[19] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 at [43]- [46] per Kiefel CJ, Keane and Edelman JJ, [173] per Gordon J

[21] Ibid at [64]-[66], [79], [126]-[127] and [184]

[24] Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385 at 389; Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597 at 601, 606_; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd_ [2022] HCA 1; (2022) 398 ALR 404 at [64]- [65], [184]

[25] Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385 at 389; Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597 at 601, 606

[26] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 at [66]

[27] Plaintiffs' outline of submissions dated 20 February 2023 at [9]

[30] Fair Work Ombudsman v NoBrace Centre Pty Ltd [2018] FCCA 378

[34] See Fair Work Ombudsman v NoBrace Centre Pty Ltd (in liquidation) (ACN 121 556 447) & Ors (No 2) [2019] FCCA 2970

[50] French J quoted this passage with approval in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076

[55] At the time Ekera bought Creative Smiles it had purchased about 13 other practices.

ase"); [2007] 166 IR 14; Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; [2020] 292 IR 317; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603

Creative Smiles Pty Ltd & Anor v Ekera Dental Pty Ltd & Anor

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