Aaren Pty Ltd trading as Price Beat Travel v Arya

[2020] NSWDC 657

District Court

New South Wales

Medium Neutral Citation:

Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657

Hearing dates:

19 October-23 October 2020

Date of orders:

02 November 2020

Decision date:

02 November 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 303

Catchwords:

DEFAMATION – defendant dissatisfied with services she received from plaintiff travel agency concerning flight travel to India – defendant publishes post on group Facebook page – whether imputations conveyed were defamatory – capacity of plaintiff company to sue – whether plaintiff had not more than 10 employees – whether plaintiff not a 'related corporation' – defence of justification – statutory privilege defence – common law qualified privilege – malice – honest opinion – damages claim – no demonstrable proof of loss in income following publication – whether corporate plaintiff entitled to any damages other than nominal damages

WORDS AND PHRASES – “employs” – Defamation Act 2005 (NSW) s 9(2)(b)

Legislation Cited:

Corporations Act2001 (Cth), ss 9, 46, 50

Defamation Act 2005 (NSW), ss 3, 4, 8, 9, 25, 30, 31, 34, 35, 39

Defamation Act 2013 (UK), s 4

Evidence Act1995 (NSW), s 140

Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), s 5B

Cases Cited:

Abrath v North Eastern Railway Company (1883) 11 QBD 440

ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532

ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146

Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651

Bristow v Adams [2012] NSWCA 166

Broome v Cassell & Co Ltd [1972] AC 1027

Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Construction, Forestry, Maritime, Mining and Energy Unionv Personnel Contracting Pty Ltd (2020) 297 IR 269

Cush v Dillon (2011) 243 CLR 298

Damevski v Giudice (2003) 133 FCR 438

Derbyshire County Council v Times Newspapers Ltd [1993] AC 534

Digby v Financial News Ltd [1907] 1 KB 502

Fair Work Ombudsman v Ramsey Food Processing (2011) 198 FCR 174

Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56

Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; 111 IR 241

Flegg v Hallett [2015] QSC 167

Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257

Guise v Kouvelis (1947) 74 CLR 102

Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695

Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555

Ho v Powell (2001) 51 NSWLR 572

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Holmes a Court v Papaconstuntinos [2011] NSWCA 59

Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111

Horrocks v Lowe [1975] AC 135

Howe & McColough v Lees (1910) 11 CLR 361

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484

John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164

Kernsley v Foot [1952] AC 345

Lange v Australian Broadcasting Company (1997) 189 CLR 520

Lindholdt v Hyer [2008] NSWCA 264

Makim v John Fairfax & Sons Ltd (Unreported, Supreme Court of New South Wales, Hunt J, 15 June 1990)

Marshall v Megna [2013] NSWCA 30

Megna v Marshall [2010] NSWSC 686

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300

Odco Pty Ltd v Building Workers’ Industrial Union of Australia [1989] FCA 483

Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136

Papaconstuntinos v Holmes a Court [2012] HCA 53

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201

Restifa v Pallotta [2009] NSWSC 958

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

Roberts v Bass (2002) 212 CLR 1

Rush v Nationwide News Pty Ltd [2018] FCA 357

Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496

South Hetton Coal Company Ltd v North Eastern News Association [1894] 1 QB 133

State of New South Wales v IG Index plc (2007) 17 VR 80

Templar v Watt (No 3) [2016] NSWSC 1230

Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845

Texts Cited:

Defamation Bill Second Reading Speech of the Attorney General (Mr Debus, MLA), NSW Legislative Assembly, Hansard, 13 September 2005

J D Heydon, Cross on Evidence (electronic version, LexisNexis)

M Irving, The Contract of Employment (2nd ed, 2019, LexisNexis Butterworths)

The Hon. Mr Justice D.H. Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-Finding’ (1995) 69 ALJ 731

Category:

Principal judgment

Parties:

Aaren Pty Ltd trading as Price Beat Travel (Plaintiff)
Ms P Arya (Defendant)

Representation:

Counsel:
Mr C Dibb for the plaintiff
Ms S Chrysanthou SC and Mr N Olson for the defendant

Solicitors:
Redline Legal for the plaintiff
Gill Lawyers for the defendant

File Number(s):

2019/67916

Publication restriction:

Nil

INTRODUCTION

THE MATTER COMPLAINED OF

IS THE PLAINTIFF AN EXCLUDED CORPORATION?

Evidence for the plaintiff

Mr Sharma’s evidence

Ms Patel’s evidence

Documentary evidence

Evidence for the defendant

The parties’ contentions

The plaintiff’s contentions

The defendant’s contentions

Consideration

Construction of ‘employs’

Findings on ‘employees’

Features of labour hire arrangements

The Multi-Factor test

The significance of the onus of proof

Conclusion

Not related to another company

WERE THE IMPUTATIONS MADE OUT?

Imputation A

Imputation B

Imputation C

WHETHER IMPUTATIONS DEFAMATORY

THE DEFENCES – THE EVIDENCE

Evidence for the defendant

Conversation with Ms Agrawal on 17 June 2018

The defendant’s experience at Kuala Lumpur on 18 June 2018

The defendant’s ‘complaints’ – 28 June to 2 July 2018

Evidence for the plaintiff

Mr Sharma’s evidence

Ms Patel’s evidence

Credit

Mr Sharma

Ms Patel

Ms Arya

THE INDIVIDUAL DEFENCES

Justification

The parties’ contentions

The defendant’s contentions

The plaintiff’s contentions

Consideration

Statutory qualified privilege

Statutory provisions

Relevant authorities

The parties’ contentions

The defendant’s contentions

The plaintiff’s contentions

Consideration

Interest

Reasonableness

Common law qualified privilege

The parties’ contentions

The defendant’s contentions

The plaintiff’s contentions

The defendant’s contentions in reply

Consideration

Reciprocity of duty (or interest) and interest

Connection to the occasion

Malice

Principles

The parties’ contentions

Consideration

Honest opinion

The parties’ contentions

The defendant’s contentions

The plaintiff’s contentions

Consideration

Expression of opinion or statements of fact?

Public interest requirement

Proper material

Material published on the occasion of privilege

Whether material substantially true

DAMAGES

Mr Sharma’s Evidence

Loss of reputation evidence

Evidence for the plaintiff

Evidence for the defendant

Principles for damages awards in defamation

The parties’ contentions

The defendant’s contentions

The plaintiff’s contentions

The defendant’s contentions in reply

Consideration

SUMMARY

ORDERS

Judgment

INTRODUCTION

1. The plaintiff is the owner of a travel agency which operates at Harris Park, a suburb in the Greater West of Sydney. On 17 June 2018, the defendant received the news that her sister, who was residing in India and who had recently had a lung transplant, was in a critical condition. That afternoon, the defendant urgently sought to make flight arrangements to fly to Chennai to be with her sister as soon as she could. To do so, she acquired the plaintiff’s services. She booked flights for herself and her child, who was then only about 18 months old. The carrier was Malaysia Airlines. The arrangements would see her the next day flying from Sydney to Chennai with a stopover in Kuala Lumpur. She had return flights booked on 3 July 2018 which followed the same flight pattern as her trip to Chennai. Because she had her infant child with her, she asked a representative of the plaintiff, Ms Megha Agrawal, who serviced her, to ensure that at all times there would be a bassinet on the plane and that the airline could provide baby food. She says that she received both verbal and written assurances from the plaintiff that the carrier would provide these facilities.

2. On 18 June 2018, after the first flight had landed at Kuala Lumpur after the completion of the first leg of the journey and before the second flight was scheduled to take off to Chennai, the defendant received information from the airline that it could not provide her with a bassinet and could not provide food for her baby. This caused significant consternation to the defendant, but because of the need to get to Chennai to be with her sister, the defendant put up with it. But in remonstrating with the Malaysia Airlines staff, the defendant claims that she felt significant embarrassment in front of the other passengers. According to her account, the airline staff had indicated to her that they had no record of any payment, and therefore had no record of any requirement, to provide the facilities for a bassinet and baby food. The defendant says that thereafter, she endured a miserable flight from Kuala Lumpur to Chennai in which, amongst other things, she could not feed her infant. Eventually, when she arrived at the hospital in Chennai on 19 June 2018, she learnt that her sister was already brain-dead. About a week later, she contacted the plaintiff to see if she could change her return flight to Sydney following her sister’s death.

3. On 2 July 2018, the defendant published a post on the Facebook page of a community group called ‘Desi Mums Connect (Sydney)’. The profile of this community group had three characteristics: the members were mothers; they were of Indian extraction; and they lived in Sydney. The defendant’s post was, to put it neutrally, extremely critical of the quality of plaintiff’s services.

4. By this proceeding, commenced on 1 March 2019, the plaintiff sues the defendant for damages for defamation arising from a publication. The defendant’s post of 2 July 2018 was the ‘Matter Complained Of’. The plaintiff contends that the Matter Complained Of, by its natural and ordinary meaning, meant and was understood to carry the following defamatory imputations:

1. the plaintiff cheated the defendant by charging $180 for an airline ticket for her infant daughter, but not passing on any payments to the airline;

2. the plaintiff cheated the defendant by issuing her a ticket with such false information on it that the defendant had to book another ticket to travel home from India; and

3. the plaintiff was so incompetent as a travel agent that the defendant’s daughter was forced to travel all the way to India without food or a bassinet to sleep in.

5. By reason of the publication of the Matter Complained Of, the plaintiff says it has been greatly injured in its character, credit and reputation and brought into public hatred, ridicule and contempt.

6. The defendant admits the publication although contests whether it was defamatory in its natural and ordinary meaning as alleged. The defendant also relied upon a range of defences. They are:

1. justification (under s 25 of the Defamation Act 2005 (NSW) (‘the Act’));

2. common law qualified privilege;

3. statutory qualified privilege (under s 30 of the Act; and

4. honest opinion (under s 31 of the Act).

7. Putting the matter very simplistically and neutrally for present introductory purposes, the defendant referred in her Defence to the circumstance that the ‘Desi Mums Connect (Sydney)’ was a private part of the community, being a group of mothers, with Indian background, living in Sydney. She contends that the plaintiff specialised in organising travel from Australia to India. The subject matter of the Matter Complained Of was the quality of service that the defendant received when travelling (under what she says were personal and urgent circumstances) with her 18 months old daughter and a sequence of events which she contends caused inconvenience to her during that travel. That travel had been arranged by the plaintiff. The defendant says that the publication published on the ‘Desi Mums Connect (Sydney)’ group Facebook page occurred after she had sent messages of complaint to the plaintiff, in which she had invited a response, but she had not received any response. She says she also warned the plaintiff of her intention to publish critical matter of them if she did not receive a proper response.

8. In its Reply, the plaintiff denies that the common law qualified privilege can subsist since the Matter Complained Of was not published on the occasion of qualified privilege or, alternatively, the occasion of privilege was exceeded. Further, if it was published on the occasion of qualified privilege or statutory privilege, the plaintiff contends that the defendant was actuated by malice in the publication of it. In this regard, the plaintiff contends that the defendant had already known of the prospect of the things she complained about at the time she made her booking and when she asked the plaintiff to arrange for a variation of her return travel to Australia, she was informed about her need to pay a fee. But, the plaintiff says, the defendant refused to pay the fee. The plaintiff says that the defendant was motivated to publish the matter complained of because of her desire to injure the plaintiff caused by her anger at being refused a waiver to pay a fee for the flight variation. The plaintiff also contends, based upon these same matters, that the defence of honest opinion is inapplicable since the defendant did not honestly hold that opinion.

THE MATTER COMPLAINED OF

9. On 2 July 2018, the defendant uploaded the following post on the ‘Desi Mums Connect (Sydney)’ Facebook page. I will insert line referencing adopted by the parties – in Exhibit A - for ease of later reference:

“3 Hello Mums,

4 I would like to share my recent experience with

5 Pricebeat Travels Harrispark.

6 I recently bought a return flight from this agent to go

7 to India.

8 It was only me and my baby were travelling along.

9 When I got my ticket from Pricebeat Travels, it clearly

10 shows that Baby bassinet and baby meal is confirmed

11 on both sides.

12 But when I boarded my flight, I was not given Baby

13 bassinet, no baby food.

14 And after asking the flight staff, I was told that baby

15 ticket, bassinet and food wasn’t confirmed.

16 They also said that they haven’t received any money

17 for baby to travel in their flight.

18 I was shocked to hear that.

19 I showed them my ticket and they denied to accept

20 the ticket.

21 According to them, this agent had done something

22 wrong.

23 Because airline hasn’t received any money for baby to

24 travel.

25 But this agent charged me $180 for baby.

26 I was travelling for some family unforeseen mis

27 happening.

28 I was already in stress and this flight gave me more

29 stress.

30 All the way, my daughter was sleeping in my lap and

31 she was crying due to hunger.

32 I didn’t have any food to give to my daughter.

33 I always confirm baby food when I book my ticket.

34 But this time, this agent cheated us.

35 Not just this. I had to face very insulting comments by

36 airline staff. They said in front of all the passengers

37 and other staff members that: Madam you haven’t

38 paid anything for your baby. You should have checked

39 everything before you boarded the flight.

40 And then after I emailed this agent about the whole

41 drama happened. But he didn’t reply back.

42 Because of this agent, I had to book New ticket to

43 come back from India, because this ticket has all false

44 details on it.

45 When I emailed this agent saying that I am not

46 boarding the flight again o. The way back coz of all

47 this experience, he didn’t even bother to reply back.

48 I would highly suggest not to book any flight from

49 Pricebeat Travels.

50 Thanx”

IS THE PLAINTIFF AN EXCLUDED CORPORATION?

10. The first issue is whether the plaintiff, as a corporation, has the capacity to sue the defendant in defamation. Section 9 of the Act provides that:

“(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.

(2) A corporation is an excluded corporation if--

(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, or

(b) it employs fewer than 10 persons and is not related to another corporation,

and the corporation is not a public body.

(3) In counting employees for the purposes of subsection (2) (b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.”

Evidence for the plaintiff

Mr Sharma’s evidence

11. Mr Amit Sharma is the General Manager of the plaintiff. He is married to Ms Nikita Patel, who is the sole director of the plaintiff. He is answerable to her and is subject to her authority in the running of the plaintiff’s business. Mr Sharma stated in evidence that in 2018, at about the point of the post, he was one of 5 people who worked at the plaintiff’s Harris Park premises.

12. He also stated that the plaintiff had an arrangement with an entity, Abyan Consultancy, which runs a Call Centre situated in Indore, in India. Mr Sharma explained the practical operation of the arrangement was such that if any of the persons in the Harris Park premises were not able to deal with calls put through to them, the calls would divert to the Abyan Consultancy call centre. He estimated that there were about 30 or 40 persons in such call centres who could potentially receive calls form persons trying to contact the plaintiff. The call centre was managed by Ms Megha Agrawal. Ms Agrawal has, so the Court was informed, an email address linked to the plaintiff’s business. Mr Sharma says that he gives instruction or direction to Ms Agrawal. Another person who Mr Sharma identified as working at the Abyan Consultancy call centre was Gunjan Mehra, who was said to have managed others in the call centre.

13. Mr Sharma said that none of those people in the call centre wore any uniform associated with the plaintiff. It was a matter for Abyan Consultancy whether calls would even be received. He said that he was not notified of the extent to which calls intended to be directed to the plaintiff were answered.

14. In cross-examination, Mr Sharma’s evidence about the plaintiff’s dealings with Abyan Consultancy was probed. He was referred to a photograph indicating the plaintiff’s name on the front door of a location in Indore. Mr Sharma disputed that that his was a logo of the plaintiff although he did not dispute that the plaintiff’s name was inscribed – he added that it had been inscribed by his young daughter. In re-examination he said that his daughter had inscribed it in December 2018. He explained that it was his brother’s office, in which 6 people worked. It was suggested that it numbered at least 9 employees but he did not accept that. It was pointed out that the entity ‘Abyan Consultancy Pty Ltd’ was not incorporated until after the post in issue in this proceeding, in 2019.

15. In cross-examination, many (up to twenty, on my count) individuals’ names were referred to Mr Sharma who had email addresses apparently associated with the plaintiff’s email address. Mr Sharma identified some of them as having self-described titles which also appeared to be associated with the plaintiff and Mr Sharma was asked whether these people worked for the plaintiff. He was not aware of some of them at all, and in some instances was unaware whether they worked for the plaintiff.

11. It was put to Mr Sharma that all of these individuals were paid, albeit indirectly, by the plaintiff and, further, that the plaintiff had failed to produce documents requested of it for fear that this might expose that fact, and also other circumstances to show, that the services supplied by people in the call centre were employees of the plaintiff. Mr Sharma did not dispute that the plaintiff had paid Abyan Consultancy.

12. It was also suggested that, upon his recall as a witness, he had changed his earlier evidence in which he said that he shared an office with his brother, to giving evidence (upon recall) that it was not his office, but rather that it was his family’s office. His recall had occurred after Ms Patel had given evidence saying she was unaware of any office that Mr Sharma had used. Mr Sharma denied shifting his evidence and suggested that he did not completely understand the earlier questioning raised of him in this respect.

13. In re-examination, he said that in no case where anyone had supplied services and/or had received payment by the plaintiff were the terms of their work directed by the plaintiff. In relation to some of the more important persons whose names were in evidence, Mr Sharma said that the plaintiff did not pay Megha Agrawal and did not set the terms of her work. He said that the plaintiff did not pay Gunjan Mehra, nor had control over her work hours. He said that she was the team leader for the consultants and would typically contact him, or other staff for the plaintiff, if a customer of the plaintiff had raised an issue.

14. The plaintiff submitted that it ran a small travel agency employing only 5 or 6 employees. Although there were persons in an offshore call centre, they were independent of the plaintiff.

Ms Patel’s evidence

20. Ms Nikita Patel Sharma [1] is the sole director and sole shareholder of the plaintiff.

    1. Also known as Nikita Patel. With no disrespect, I shall refer to her as Ms Patel.

21. Under cross-examination, Ms Patel was asked about her awareness of the management of Abyan Consulting and the address where it did its business from in India. When it was suggested that the plaintiff shared that address, she denied the suggestion. She indicated that it was her husband, Mr Sharma, who was responsible for arrangements with that consultancy and that so far as she was aware, he did not run any business from the address.

22. She understood that an arrangement with Abyan Consulting was entered into by which the plaintiff could outsource telephone calls made to it to Abyan Consulting after hours; but had no real understanding of the details of that arrangement.

Documentary evidence

23. The plaintiff relied upon an Agency Agreement entered between the plaintiff and an entity described as ‘Abyan/Travel To Fly’ (Exhibit I). The agreement was entered into in 2016 for a scheduled term of one year, which was due to expire in August 2017. However, Mr Sharma said that it was extended by oral agreement with Alok Verma and Manish Chawla, who are both presently in India.

24. The content of this agency agreement was as follows:

“Agency Agreement

THIS AGREEMENT (this “agreement”), dated as of 14 Aug 2016, is between Pricebeat Travel, Australia, with offices Located at Suite 1, 126 Maesden Street Parramatta (here in) Abyan/Travel To Fly, Indore, Incorporated, with offices located at, 1^st floor, 103 Darshan Mall M.G Road, Indore M.P.

WHEREAS, Pricebeat Travels engaged in businesses including travels and tour operations.

WHEREAS, Pricebeat Travel desires Abyan/Travel To Fly to provide customer support and telemarketing services to customers and potential customers of Pricebeat Travel’s Travel business and Abyan/Travel To Fly Indore desires to provide such services, on the terms and conditions set forth.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereby agree as follows:

ARTICLE 1

DESCRIPTION OF SERVICES

SECTION 1.1. Engagement OF Abyan/Travel To Fly

Subject to the terms and conditions of this Agreement, Pricebeattravel here by retains Abyan/Travel To Fly to provide the Customer support and telemarketing services set forth below (collectively, the “Services”), and Abyan/Travel To Fly here by accepts such engagement.

(a) Abyan/Travel To Fly provide Pricebeat Travel inbound and outbound teleservice support for Pricebeat Travel Customers who have purchased airline tickets through theSite or direct bookings/or theToll-Free Number.

(b) Abyan/Travel To Fly Indore offers to handle all the backend operations of Price Beat travels and shall operate the same from its offices in India. Abyan/Travel To Fly shall access and operate all the emails and telecall services of Price Beat Travels from India.

(c) Abyan/Travel To Fly will offer the above-listed services and staff services (recruitment and salaries to be paid by Abyan/Travel To Fly pursuant to the terms of this partnership agreement.

In return, Price Beat Travels agrees to pay the Agency commissions based on actual sales and number of calls.

(d) Abyan/Travel To Fly will also provide such additional relatedservices as set out in this Agreement (herein “Related Services”) including, without limitation, the following:

Abyan/Travel To Fly agrees to notify Pricebeat Travel on a daily basis all information and data pertaining to business. The parties agree that Abyan/Travel To Fly. Ltd is responsible for fulfilling such requests. Should Pricebeat Travel notice obligations significantly interfere with its primary Service activities, Abyan/Travel To Fly will notify Pricebeat travel. The parties agree that upon such notice, they will workcooperatively toward an amicable solution.

(d) All customer interactions over emails, phone calls and responses would be handled by Abyan/Travel To Fly In event of any customer dissatisfaction or misconduct, Abyan/Travel To Fly will be liable and will be held responsible.

SECTION 1.2. TELECOMMUNICATIONS COST

PRICEBEAT assumes all expenses related to the sending of Contracts to Abyan/Travel To Fly, including provision of telecommunication lines and the bearing ofnetwork costs associated with routing Inbound Calls to the Facility. Abyan/Travel to Fly is responsible for properly equipping the Facility with the necessary hardware to receive and handle Contacts as required by this Agreement.

SECTION 1.3. TRAINING & RECRUITMENT

Pricebeat Travel will provide one copy of necessary training materials to Abyan/Travel To Fly on all versions and aspects of Products that are unique or specific to Pricebeat travels ‘s services at no charge to Abyan/Travel To Fly agrees to se said documentation for Service purposes only.

Abyan/Travel To Fly agrees to use all training materials for training and support purposes for the Services only. Abyan/Travel To Fly to provide training to its employees at the Facility, which shall include (at a minimum) training on the standard types of underlying hardware, operating system andapplication (e.g. browser) software required or typically used in conjunctionwith the Travel Services. Pricebeat Travel shall have the right to review and approve thelevel of proficiency and the performance of quality Services.

Training & Recruitment of the personals and their respective salaries shall paid by Abyan/Travel To Fly.

Pricebeat Travel will not be involved in selection, recruitment or layoffs made by Abyan/Travel To Fly. In any event of dissatisfaction or objection with working style or customer unhappiness with the consultant, the issue will be resolved by the Manager Mr Alok Verma.

SECTION 2. FEES FOR SERVICE

Pricebeat Travel will pay Abyan/Travel To Fly. a sum of Rs 15,000/- (Rs Fifteen thousand per day) (Inclusive of aforesaid services and all the taxes).

-6-

SECTION 3. PAYMENT

The fee shall be paid on or before the 10^th of every month. In addition, Abyan/Travel To Fly will bill Pricebeat Travel for Related Services and such other charges as areprovided for herein on an as incurred basis (along with its regular monthly invoice).

SECTION 4. RECORD KEEPING

Abyan/Travel To Fly. agrees to keep accurate books of account and records (inaccordance with generally accepted accounting principles consistently applied).Such books and records shall be maintained by Abyan/Travel To Fly for a period of thee (3) years after termination or expiration of this Agreement.

SECTION 5. TERMS

This Agreement shall remain in effect for a period of 1 year from the agreement date. Upon the completion of this agreement the Parties may agree to extend for 1 year from the completion date.

SECTION 5.1. TERMINATION FOR CONVENIENCE

Pricebeat Travel may terminate this Agreement at any time during the Initial Term and any Renewal Term without cause upon at least ninety (90) days written notice to Abyan/Travel To Fly.

SECTION 6. INTELLECTUAL PROPERTY

Abyan/Travel To Fly agrees to disclose and furnish promptly to PRICELINE any and all technical information, computer or other apparatus programs inventions, specifications, drawings, records, documentation, works of authorship or other creative works, ideas, knowledge or date, written, oral or otherwise expressed, first made or created for and paid for by Pricebeat travel.

SECTION 7. ACCEPTANCE

The parties hereby acknowledge the receipt and understand of all the terms and conditions as outlined in this travel agency agreement.

For Pricebeat Travel: Amit Sharma (manager)

For Abyan/Travel To Fly: Alok Verma (Manager)

SECTION 7.10. NOTICES

Any notice required or permitted hereunder shall be deemed sufficient if given in writing and delivered personally, by facsimile transmission, by reputable overnight courier service or Australia, postage prepaid, to the addresses shown below or to such other addresses as are specified by similar notice, and shall be deemed received upon personal delivery, upon confirmed facsimile receipt, two (2) days following deposit with such courier service, or three (3) days from deposit in the Australia mail, in each case as herein provided:”

25. The plaintiff also tendered company tax returns for the plaintiff for the financial years ended 30 June 2018 and 30 June 2019; as well as financial statements for the company for the year ended 30 June 2019[2] . The last statement, which Counsel for the plaintiff specifically referred to in his closing address, detailed wages in the amount of $265,000 for the financial year, being the year in which the Matter Complained Of occurred.

    2. The 2019 company tax return and 2019 Financial Statements were admitted subject to a limitation that they were admissible only in relation to the ‘employee’ issue under s 9 of the Defamation Act 2005 (NSW).

Evidence for the defendant

26. The defendant relied upon an extract from the plaintiff’s website which contained the statement that the plaintiff had “over 40 staff members based in Sydney, Melbourne and India…” (Exhibit 1).

27. The defendant put in evidence, over the plaintiff’s objection, a company extract of Abyan Consulting Private Ltd (Exhibit 17). This indicated that the entity was incorporated on 4 June 2019, after the publication of the Matter Complained Of.

28. The defendant also tendered a bundle of emails (Exhibit 18) of persons apparently resident in India, with close resemblance to the plaintiff’s email address and affiliation with the plaintiff’s IT server. Some of those emails indicated that the workers occupied positions or had titles affiliated with the plaintiff. Thus, the following workers, located in India, were identified by the following titles, or offices, associated with the plaintiff:

• Gunjan Mehra, Associate Director;

• Megha Agrawal, Travel Consultant – Sales;

• Alka Tripathi, Travel Consultant – Sales;

• Kartik (surname not identified), Travel Consultant; and

• Amit Sharma, Director.

29. These individuals all had email addresses linked to the plaintiff’s email system and their addresses were represented to be the plaintiff’s Harris Park office address.

30. Abhilash Jaiswal was identified, in a document resembling a curriculum vitae, as being the ‘Director – Business Development’ of the plaintiff.

The parties’ contentions

The plaintiff’s contentions

31. The plaintiff accepted that it carried the onus of proof on this issue, but noted that the civil standard applies, and also emphasised that the plaintiff was required to prove a negative: that it did not have more than 10 employees. The plaintiff noted that the wages recorded in its financial statement for the year ended 30 June 2019 (covering the events in question) indicated that wages were only about $265,000. Under the definition of the legislated minimum wage (about $719 per week, or $37,388 per year), the arithmetic suggested that there could not have been more than 7 employees (reasonably assuming that they were earning no less than the minimum wage). The plaintiff asserted that I should apply the “industrial” meaning of the word ‘employee’ following the Court of Appeal’s decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [3] and follow the view that only workers with employment contracts with the plaintiff counted, for the purpose of the provision. It would go beyond Born Brands to accept that hired labour engaged by a corporate plaintiff could be regarded as the corporation’s employees.

    3. (2014) 88 NSWLR 421 per Basten JA (Meagher JA and Tobias AJA agreeing) at [104].

32. The plaintiff submitted, with reference to extrinsic material, that s 9 was directed to conferring an entitlement upon a ‘small business’ to sue [4] . This is what the plaintiff was. It is not novel for corporations to make use of the services of persons in other corporations. As the arrangement with Abyan Consultancy indicated in its terms, it is the consultancy that directs and controls the personnel. If it was necessary to consider earlier case authorities distinguishing employees from independent contractors, it should be found that the plaintiff did not exercise control over personnel in the office in Indore. There is no imperative policy (as there was in the vicarious liability cases) to treat persons deployed by Abyan Consultancy as this plaintiff’s employees. The Agency Agreement indicated that the plaintiff was paying Abyan/Travel To Fly a flat fee for commission. How that was distributed to staff that this entity had retained was a matter for that entity.

The defendant’s contentions

4. Defamation Bill Second Reading Speech of the Attorney General (Mr Debus, MLA), NSW Legislative Assembly, Hansard, 13 September 2005.

33. The defendant contended that Born Brands, properly construed, did not preclude a finding that workers under labour hire arrangements or who would be regarded as employees in accordance with common law principles could be regarded as ‘employees’ for the purpose of the legislative provision. To admit of that possibility would be consistent with a legislative intention to limit the right in corporations to sue in defamation.

34. The defendant submitted that on the plaintiff’s case, at least 5 people (including Mr Sharma) worked in the plaintiff’s Harris Park offices. But once one considered the indications as to the totality of the relationship between the plaintiff and the workers in India (not to mention its other office in Melbourne), featuring their close integration with the plaintiff’s business, what they were doing, how the plaintiff held them out to the public (with some of them holding themselves out as occupying certain positions with the plaintiff) and the plaintiff’s own marketing of the size of its labour force, the indications were that, in accordance with the principles of vicarious liability, these workers could be regarded under common law principles as the plaintiff’s employees; rather than independent contractors. Accordingly, the Court could not be satisfied that there were fewer than 10 employees. The defendant submitted that the plaintiff, who carried the onus of proof on the issue, could have produced other documents, or called other evidence, to prove it had less than 10 employees, but it did not.

35. The defendant separately submitted that the plaintiff did not prove the other aspect of the test, being that it was not a ‘related corporation’.

Consideration

36. The plaintiff carries the onus of proving that it is an excluded corporation[5] . Section 9 manifests legislative policy that, subject to limited exception, corporations should generally not have the capacity to sue. In this way publishers are conferred a “real and effective immunity from a defamation suit brought by most companies.”[6]

    5. Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 per Grove J at [6].

    6. Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 per Bromwich at [79]-[81].

37. In the extrinsic material placed before the Court, the Attorney General indicated that s 9(2) was the product not only of legislative compromise, but also a compromise within the relations between the federal and state (and territory) governments. The New South Wales Government’s preference was to exclude a right to companies to sue at all, but the Commonwealth was reputed to support such right. The NSW Government’s preference for outright prohibition was explicable on the basis that:

“…corporations are not people and they do not have personal reputations to protect. Their interest is purely commercial. The commercial reputations they enjoy are often the product of expensive marketing campaigns and there are other legal actions, including actions for injurious falsehood, that corporations can take to defend their interests.” [7]

7. Defamation Bill Second Reading Speech of the Attorney General (Mr Debus, MLA), NSW Legislative Assembly, Hansard, 13 September 2005.

38. However, “in the spirit of compromise”, the Government agreed to a “small business exemption”. Small businesses related to other companies could not sue.

39. The relevant exception relied upon here by the plaintiff is s 9(2)(b). The plaintiff is required to prove that it: (a) employs fewer than 10 persons, and (b) is not related to another corporation.

Construction of ‘employs’

40. Judicial exegesis of the word ‘employs’ in the context of s 9(2)(b) is still evolving. In obiter dicta in Born Brands at [104], Basten JA (Meagher JA and Tobias AJA agreeing) rejected a construction[8]  that focussed upon the number of persons whose services a company was using in preference for the construction that the provision assumed that persons were “employees”, being persons “having a contract of employment”.

    8. Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 per Nicholas J at [21]-[22].

41. At [106] Basten JA noted a submission received by the publisher in that case to the effect that the term “employees” may not simply be limited to ‘employees at common law’, but could extend to individuals involved in a corporation’s day to day operations and subject to its direction and control; including persons supplied by labour hire firms. But his Honour determined that as no factual issue arose concerning workers of that kind, it was “unnecessary to resolve the limits of the section.”

42. The observations of the Court of Appeal were in obiter dicta because the Court of Appeal had determined that the plaintiffs had no claim in any event (at [100]). Nevertheless, both parties urged upon me, and I accept, that in clearly considered dicta of the Court of Appeal, I am bound to apply it.

43. What the Court of Appeal was rejecting in Born Brands was the construction of s 9(2)(b) which required a finding of the number of persons who were providing services to the corporation (whether they were employees of not), and instead, emphasising the requirement that the provision requires consideration of the number of employees. But in positing that the question turned on how many employees there were, I do not understand the Court of Appeal as limiting the notion of ‘employee’ to someone who the corporation directly engaged in a contract of employment; rather than, say workers procured by a corporation’s agent or employees hired under arrangements with a labour hire firm. If it had, it would likely have foreclosed the submission advanced on the part of the respondent in the appeal in Born Brands that an employee could be interpreted in accordance with its common law meaning, and embraced those workers, procured for the corporation by an agent, who could properly be characterised as employees, having regard to common law principles. It did not. It left the question open: [106]. This it did, partly because the claim in defamation failed anyway, but also because the question which the defendant now wishes to agitate did not seriously arise on the facts in the Born Brands litigation. As the trial judge in that litigation indicated, what was in issue was whether a number of persons who happened to provide a miscellaneous range of services (such as product promoters, marketing assistants, IT services and other ‘service providers’) were persons who, under the prevailing but erroneous construction in Redeemer Baptist of being service providers to the corporation, met the statutory definition[9] .

    9. Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651 at [43]-[46].

40. Accordingly, I proceed on the basis that Born Brands does not preclude me from considering whether other workers, other than those directly engaged under contract with the corporation, may be characterised as employees for the purposes of the provision.

41. Whilst there is a reasonable view that the concept of employee under the Act must be construed in accordance with its own context and purpose, for two reasons, in my view, the proper approach for a trial judge to apply when construing the concept under s 9 the Act is to accept that it extends to its common law definition of “employee”.

42. First, there is authority for the view that when construing legislation providing for “employees”, Courts should generally apply the test of whether a worker would meet the definition of an employee under common law, absent a contrary indication (such as where the legislation in question itself indicates that the notion of an employee extends to some persons and deems them to be employees)[10] . In Aid/Watch Inc v Federal Commissioner of Taxation, the plurality in the High Court said:

“Where statute picks up as a criterion for its operation a body of the general law, such as the equitable principles respecting charitable trusts, then, in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time. Further, where, as here, the general law comprises a body of doctrine with its own scope and purpose, the development of that doctrine is not directed or controlled by a curial perception of the scope and purpose of any particular statute which has adopted the general law as a criterion of liability in the field of operation of that statute”[11] .

10. ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 per Lander J at [14], per Buchanan J at [127]; M Irving, The Contract of Employment (2nd ed, 2019, LexisNexis Butterworths) [2.8]-[2.9].

11. (2010) 241 CLR 539 at [23].

47. As Allsop CJ recently said in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, statute can create a status that provides for consequences different to the application of common law principles[12] , but there is no indication that in the Act the New South Wales Parliament intended to depart from those principles when construing the meaning of ‘employees’.

    12. (2020) 297 IR 269 at [8].

48. Accordingly, where the Act by s 9(2)(b) chooses the criteria of ‘employee’ (and a maximum number of them) as a condition for a corporation to sue, it picks up common law principles as to what the term means; and those principles should be applied without any necessity to construe the scope of the object of the Act which has deployed the concept of employee.

49. Secondly, the desirability of accepting the common law understanding of employee is, in my view, heightened in the context here where, as Counsel for the plaintiff pointed out, the New South Wales Parliament’s enactment of s 9 was the result of a compromise between different viewpoints, at federal and state levels, as to whether corporate plaintiffs should be allowed to sue at all. Reliance upon common law principles that underscore the concept of ‘employee’ is likely to make it less likely that the legislative object misses its target than a construction of the purposes of the Act; which legislation does not refer to employees otherwise than with reference to their status. Thirdly, and related to the second point, the importance of adopting the common law principles will likely assist in facilitating conformity or consistency in the interpretation of the concept in other states’ and territories’ legislation; which is one of the statutory objects in the legislation[13] .

    13. Section 3(a) of the Act.

50. Accepting, then, that the common law principles of who is an employee are relevant, a prominent, if not the foremost, criteria for determining whether a worker is an employee of someone or is an independent contractor is whether that someone would be vicariously liable for any wrong done by the employee. This is because, as has been commented, of all the miscellany of common law doctrines applicable to parties to an employment contract, it is that which governs an employer’s vicarious liability which primarily determines the common law meaning of an employee[14] . Further, where an Act uses the common law concept of employment, then subject to contrary intention, it is using the meaning arising from vicarious liability [15] .

    14. CFMEU v Personnel Contracting Pty Ltd (2020) 297 IR 269 per Lee J (Allsop CJ and Jagot J agreeing) at [63]; ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 per Perram J at [27]-[28]; Irving, supra, at [2.6]-[2.7].

    15. Irving, supra at [2.8], p 60.

51. This gives rise to a further complication, however. As McHugh J found in his concurring judgment in Hollis v Vabu Pty Ltd, vicarious liability does not necessarily depend upon a finding of an employer’s responsibility for its employee’s conduct. Vicarious liability can arise from the conduct of an agent, imputed to his or her principal[16] , or anyone the subject of the employer’s direct control[17] .

    16. (2001) 207 CLR 21 at [73]-[74].

    17. Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 at [30].

52. Finally, noting the High Court’s reference in Aid/Watch Inc to the statute speaking continuously from time to time, I do not accept that, to the extent that the common law shapes the conception of an employee in a way which could extend to labourers who have been procured from an agency, these hired labourers should be excluded, in principle, from attaining the status of ‘employees’ as that status appears in the Act, if they meet the characteristics of employees under common law principles.

Findings on ‘employees’

53. There is, as the defendant contends, evidence to suggest 5 workers operate in the Harris Park office for the plaintiff. I accept also that, on the basis of the accounts adduced, on the assumption that they are paid the average wage, there are fewer than 10 employees. But those accounts have been generated on the contestable premise that the plaintiff does not regard the workers located in the Indore region in India (who I will henceforth refer to, without any intended disrespect, as ‘the Indian workers’), who work for the plaintiff, as its employees.

54. However, the issue is not determined by the plaintiff’s subjective belief. This is why, contrary to multiple urgings by the plaintiff’s Counsel, I disallowed questions raised of Mr Sharma as to what he regarded as the number of employees that the plaintiff had. The task is to be considered objectively and, as I have indicated, in accordance with common law principles. On the other hand, it might arguably have been open for Mr Sharma to give evidence as to the provenance of the Agency Agreement with Abyan/Fly To Travel, but he did not do so, not necessarily to aid in its construction, but to indicate the plaintiff’s business purposes in securing labour.

Features of labour hire arrangements

55. Common law principles have developed in relation to cases where corporations use hired labour as a result of arrangements with labour hire firms. In relation to labour hire arrangements, they were considered in Odco Pty Ltd v Building Workers’ Industrial Union of Australia [18] . Typical features of such arrangements include a labour hire firm offering those workers ‘on its books’ placements with the firm’s business clients. Commonly, the business client pays the firm an amount to cover the cost of the work performed by the worker placed with it, and of the service provided by the firm, with the worker in turn paid by the firm, which may also be responsible for other matters, such as leave entitlements. Such arrangements may be attractive to corporations who can obtain labour without the associated responsibility for statutory rights and protections available to employees.

    18. [1989] FCA 483; confirmed on appeal in Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104.

56. In labour hire arrangements, an employee of a hire company may be loaned, seconded, or hired to another company (the end user) for its labour, without any change in the status of the labourer as being an employee of the hire company. The law recognises, also, that a contract of employment cannot be unilaterally assigned[19] . Labour hire arrangements, as Counsel for the plaintiff rightly says, are not illegal or regarded as illegitimate. However, as Buchanan J observed in Fair Work Ombudsman v Ramsey Food Processing, there are two questions that require exploration before the possibility that the labourer could be classified as an employee of the end user could be dispelled: first, whether the labourer is actually in an employment relationship with the hire company; and secondly, whether the hire company is actually conducting a business of its own as a hirer of labour[20] . In the absence of an employee relationship between the labourer and the hire company, and in the absence of a finding that the hire company is in business on its own account, an inference may be drawn that the hire company is acting as an agent of the end user and that there is no natural impediment to a finding that the labourer could be regarded as an employee of the end user.

    19. Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; 111 IR 241 at [64].

    20. (2011) 198 FCR 174 at [63].

57. The Court has before it a written agency agreement between the plaintiff and Abyan/Fly To Travel. I am prepared to accept, on the probabilities, Mr Sharma’s evidence that it had been extended by verbal variation, even if there was no document evidencing an agreed extension of the term (beyond 14 August 2017). There was no specific requirement for the variation permitting extension of the term of the arrangement to be in writing (Section 5). It would be difficult to see, in the absence of an agreed extension of the arrangement between the plaintiff and Abyan/Fly To Travel, what obligations that the plaintiff had to pay Abyan/Fly To Travel the commission to finance its expenses, as at the date of the Matter Complained Of (2 July 2018) if it had not.

58. The title of this document is an obvious indication that Abyan/Fly To Travel, though an intermediary, is an agent and that the subject matter of what it does is (like the plaintiff) connected flight travel. There is no indication within that document, nor other documents in evidence, which suggests that it might operate a business on its own account as a genuine labour hire company (i.e. it has relationships with multiple clients). But to the questionable extent that written contracts should be treated as determinative of the real substance of the relationships [21] , production of the Agency Agreement is, as I have suggested, only one part of the contractual documentation one might expect to have placed before the Court. As was noted recently in CFMEU v Personnel Contracting Pty Ltd, it is not unexpected in the situation of genuine labour hire arrangements that the “end user” of the labour (here the plaintiff) would not have any express contract with the hired worker (the Indian workers), but rather, the relevant express contracts would be between the end user of the labour and the labour hire firm; and between the labour hire firm and the hired worker[22] . In this case, although the plaintiff adduced evidence of an arrangement with the labour hire firm, there was no evidence as to any overriding arrangement, as between the labour hire firm and the hired workers. The Agency Agreement between the plaintiff and Abyan/Fly To Travel is not conclusive of the status of the labourers who are not party or privy to it. But there was no evidence of any overarching arrangement between the agency and the Indian workers, or any individual agreements between the agency and those same workers.

    21. CFMEU v Personnel Contracting Pty Ltd per Allsop CJ at [21].

    22. (2020) 297 IR 269 per Allsop CJ at [5], per Lee J at [65].

59. The Court has not been equipped with documentation to establish the terms upon which the individual workers worked for the plaintiff and it is possible that, in those circumstances, a contract may be implied by conduct as between the Indian workers and the plaintiff[23] .

    23. Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111 at [60]-[74]; Damevski v Giudice (2003) 133 FCR 438 at [81]-[88]; Irving, supra [3.29], pp 160-161.

60. In my opinion, it is doubtful whether Abyan/Fly To Travel is a genuine labour hire firm and not just an agent for the plaintiff, and there is no demonstrable employment relationship between the Indian workers and Abyan/Fly To Travel. This means that, consistent with common law principles, the Court needs to address the question of whether, viz a viz the plaintiff, the Indian workers are employees or independent contractors. Although there is some academic criticism of dividing workers in what appear to be trilateral arrangements, the binary division remains[24] .This falls to be assessed with reference to the ‘totality of the arrangement’ as determined by the application of a multi-factorial test[25] .

The Multi-Factor test

24. CFMEU v Personnel Contracting Pty Ltd (2020) 297 IR 269 per Lee J (Allsop CJ at [9] and Jagot J at [41] agreeing) at [72].

25. Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [44]-[45].

61. In Hollis v Vabu Pty Ltd the plurality set out[26] a range of factors in the circumstances of that case which were indicative that a bicycle courier was an employee of a courier business and not an independent contractor, such that the latter could be found vicariously liable for the tort of the bicycle courier in injuring the plaintiff. Some of the factors (at [48]-[53]) were invoked by the defendant in this case. Thus, the Indian workers were not shown to possess special qualifications, they had little control over the manner and performance of their work, and they were presented to the public as emanations of the plaintiff.

    26. (2001) 207 CLR 21 at [42]-[45].

62. As often happens in this type of dispute, arguments can be made for and against each party. I take into account, and accept the force of the defendant’s arguments that the Indian workers were practically absorbed in the plaintiff’s enterprise; as indicated by the email addresses and common IT system. Further, they were trained from the same training manual and it appeared that they were essentially performing the same roles as those within the Australian office. It appears that they worked in an office, in Indore, which had the plaintiff’s name written on the front door. I also accept the force of the argument that, as if they were wearing a uniform of the plaintiff, they were presented to the public as an emanation of the plaintiff. This was most obvious perhaps in the email addresses (and sign offs in the emails). There was little to distinguish the skill set of the Indian workers from those in Australia.

63. In terms of its operations, the workers in India were supporting the employees in the Australian office(s). This was not only when the Australian operators were otherwise engaged, or when a call was made to the plaintiff’s business outside of Australian office hours (such as the call that the defendant made on 17 June 2018), but also in the business’ general dealings with clients. This was vividly demonstrated by what occurred in relation to the treatment of the defendant’s complaint. Although she had her initial conversation with Ms Agrawal on 17 June 2018, after she had made her complaint by email, it was Gunjan Mehra, based in India, who responded to it, on 3 July 2018. It might be noted that on the face of the email (Exhibit 3) Ms Mehra’s address was listed as being the plaintiff’s Harris Park address; not any Indian address. As was pointed out, in his evidence, Mr Sharma said he believed that Ms Mehra had the authority to respond to the defendant’s complaint. That would constitute a rather extraordinary delegation if Ms Mehra only acted as a contractor. Also, after the defendant had made her complaint, it was Megha Agrawal who made the inquiry of Malaysia Airlines. Mr Sharma said in his evidence that she gave directions to the workers in the call centre but, critically, he gave directions to Ms Agrawal. In this way, Mr Sharma could be viewed as indirectly supplying directions and thereby informing the Indian workers how to do their work. I also agree with the defendant that, in the absence of any of the workers in the Indian office being called to give evidence, it appears that the workers were doing (and were trained to do) exactly the same thing as the employees in the Australian offices. This was an indication that no special skill set was being supplied by the workers in the Indian office, which is one indicia of a contractor[27] . There is also a real question whether Mr Verma himself, for example, is an employee or de facto manager of the plaintiff. There is a real question, generally, whether Abyan/Fly To Travel is itself independent of the plaintiff, as distinct from being thoroughly absorbed within its operations.

    27. Hollis v Vabu at [48].

64. The similarity in performance of the work between employees in Harris Park and the Indian workers, the holding out to the public of the assimilation between the workers, and the integration of the Indian workers in the system are powerful indications of the Indian workers being employees of the plaintiff. To adopt what the High Court said in its conclusion in Hollis (at [57]), to the outside world, the Indian workers “were” the plaintiff.

65. There were other matters, outside of the terms of the Agency Agreement, which supported the defendant’s argument that they were employees, in the form of admissions by the plaintiff. These included the content of the plaintiff’s website (Exhibit 1), which relevantly referred to the plaintiff “becoming one of the largest Australian/Indian online travel agency today” and with “around the clock customer service”. It was only because of the services of the workers in the call centre in India which enabled the plaintiff to make that boast, and the boast was another apparent indication of the seamless integration of the plaintiff’s operations in both Australia and India. Then, although Mr Sharma disclaimed the correctness of the statement, on the spurious basis that the IT manager was responsible for its inclusion, the website stated that it had “over 40 staff members, based in Sydney, Melbourne and India” (emphasis supplied).

66. But there were factors in existence which favoured the plaintiff’s argument. They rest, fundamentally, upon matters of form: the provisions in the Agency Agreement, but also Mr Sharma’s description of its operation. It was Abyan/Travel to Fly which recruited the Indian workers. There was, therefore, inherently missing the idea that the plaintiff could have selected the worker on the basis of its view as to the worker’s merit or, put another way, this is not an obvious manifestation of trust and confidence being reposed in the workers by the plaintiff of the kind that generates fiduciary duty. The hours that the workers worked were not shaped by the plaintiff. It was Abyan/Travel To Fly that determined how much the workers would be paid, out of the commission it received from the plaintiff. On the evidence before the Court, it was not suggested that the plaintiff could have exercised any power of dismissal over the Indian workers. Although the commission paid by the plaintiff to the agency was fixed, that did not translate into guaranteed levels of wages for the workers. But although these matters arose from one document, as I have noted, no other document indicating the formal relationships as between the plaintiff, Abyan/Fly To Travel and the Indian workers were in evidence.

The significance of the onus of proof

67. The plaintiff’s Counsel accepted that the plaintiff bore the onus of proving the facts in s 9(2)(b). Given that those facts are a precondition in entitling a company to sue in defamation, that concession was correct[28] . I accept, also, Counsel’s submission as to the difficulty in proof of a negative. As was noted in a leading text, negative evidence is usually circumstantial or indirect and the difficulty lies when discovering a fact or series of facts inconsistent with the fact sought to be disproved[29] . Any difficulty of proof for the plaintiff cannot, however, be alleviated with recourse to the notion that the defendant has the greater means of producing evidence to contradict the negative proposition, casting an ‘evidential burden’ upon that party and allowing the Court to draw inferences[30] . Nor can it be suggested that the defendant has such peculiar awareness of facts as to indicate that proof by the plaintiff of a ‘scintilla’ of evidence is enough[31] . In this case, the opposite is true. The defendant had no knowledge of the employment arrangements in the plaintiff. But if there is a difficulty in a corporate plaintiff in proving a negative, then that is because the Parliament has intended that this should be so.

    28. Abrath v North Eastern Railway Company (1883) 11 QBD 440 at 457, cited in J D Heydon, Cross on Evidence (electronic version, LexisNexis) [7070].

    29. Ibid at [7070].

    30. Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561 at 565.

    31. Ibid at 565.

1. The plaintiff is to pay the defendant’s costs of the proceeding, as agreed or as assessed.

2. Liberty to apply to vary the costs order is granted on 14 days’ notice.

3. Exhibits may be returned within 28 days.

**********

Endnotes

Decision last updated: 02 November 2020