Background
Riley Gall brought a representative proceeding against Domino’s Pizza Enterprises Limited concerning representations made to franchise operators about the industrial instruments governing delivery drivers and in-store workers. In the earlier trial judgment, the Court found that Domino’s had represented that the relevant workers’ employment was governed by enterprise agreements and that those agreements supplied the required pay rates and conditions.
The Court found those representations were objectively false for a substantial cohort of workers, including Mr Gall, because the Fast Food Industry Award applied instead. This judgment determined the orders to give effect to that trial decision, including damages, costs, security for costs and answers to the common questions.
The Court’s Holding
Murphy J declared that Domino’s contravened s 18 of the Australian Consumer Law between 24 June 2013 and 23 January 2018 by making the false representations. The Court entered judgment for Mr Gall for $11,869.33 under s 236 of the ACL, plus pre-judgment interest to be calculated. His compensable loss was the difference between what he received and what he would likely have received had his franchise employers known the Award applied, accounting for likely changes to employment practices in that counterfactual.
The Court made the common-question answers binding on the parties and non-opted-out group members, but held that group members’ individual loss and damage remain to be determined. It ordered Domino’s to pay Mr Gall’s costs, directed a lump-sum costs assessment, and released the security for costs to the litigation funder. The Court refused Domino’s request for more time to propose orders and rejected its request to reduce costs or use a traditional taxation process.
Key Takeaways
- Domino’s was found to have made misleading factual representations about the applicable wage instruments for a substantial cohort of franchise employees.
- Mr Gall recovered $11,869.33 plus interest; group members’ individual claims have not yet been quantified.
- The successful applicant received costs without an issue-by-issue reduction, to be assessed on a lump-sum basis.
Why It Matters
The decision shows that a franchisor’s information, compliance activity and payroll arrangements can amount to misleading conduct where they convey an incorrect position about employees’ minimum pay and conditions. The Court treated the representations as factual, rather than merely opinion-based, for the purpose of the ACL contravention.
It also confirms the Court’s preference in a large class action for a supervised lump-sum assessment over a lengthy traditional taxation of costs, and that a litigation funder’s continuing adverse-costs obligation may support release of security after judgment.