Andonovski v Park-Tec Engineering Pty Ltd; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd (No 4)
[2013] NSWSC 1963
•17 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd (No 4) [2013] NSWSC 1963 Hearing dates: 17/12/2013 Decision date: 17 December 2013 Jurisdiction: Common Law Before: Campbell J Decision: I reject the tender
Catchwords: EVIDENCE - admissibility - whether evidence relevant - application of s98 Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Pitcher v Langford (1991) NSWLR 142 Category: Procedural and other rulings Parties: Vlado Andonovski (plaintiff in both matters)
Park-Tec Engineering Pty Ltd (first defendant in matter 2007/292845)
Barbeques Galore Pty Ltd (second defendant in matter 2007/292845)
East Realisations Pty Ltd (first defendant in matter 2008/316044)
RD Transport Services Pty Ltd (second defendant in matter 2008/316044)Representation: Counsel:
AJ Lidden SC with E Welsh and VM Sciglitano (plaintiff in both matters)
TA Berberian (first defendant in matter 2007/292845)
NJ Polin (second defendant in matter 2007/292845)
RA O'Keefe (first and second defendants in matter 2008/316044)
Solicitors:
Brydens (plaintiff in both matters)
HWL Ebsworth (first defendant in matter 2007/292845)
Stiles Lawyers Pty Ltd (second defendant in matter 2007/292845)
Vardanega Roberts (first and second defendants in matter 2008/316044)
File Number(s): 2007/292845 2008/316044
EX TEMPORE Judgment
As I have remarked in the previous interlocutory decision these proceedings have a long history, including the determination as a separate question under the rules of the issue about the identity of the plaintiff's employer. That matter went on appeal and the Court of Appeal decided, on the basis of the evidence led before the primary judge his Honour Judge Johnstone, that the second defendant employed the plaintiff. That issue is now closed, having been authoritatively decided, and although the separate question is of necessity an interlocutory determination, the intention of the rules is that this interlocutory determination binds the parties and the court for the purpose of the determination of the main proceedings, if I may express myself that way.
In any event, I think it clearly established by authority that a decision as to a contested fact for the purpose of an interlocutory decision binds the parties and the court and inures to the final determination of the proceedings.
Ms Berberian has tendered the supplementary appeal book that was before the Court of Appeal, containing the evidence as to the plaintiff's employment status that was led before Judge Johnstone. She argues that the evidence is relevant because the similarity between that material which moved the Court of Appeal a certain way and the material she has tendered, mainly as Exhibit 1D24, ought to lead to the same conclusion in respect of the other employees working at the first defendant's premises who have been named in these proceedings as working in a supervisory capacity.
Mr Lidden of senior counsel who appears with Mr Sciglitano for the plaintiff and Mr Polin of counsel who appears for the second defendant object on the ground of relevance.
Certainly, the evidence is not relevant to prove anything about the plaintiff's employment status, because that issue having been determined already for the purpose of these proceedings is not a fact in issue in these proceedings, for the purpose of ss55 and 56 Evidence Act 1995 (NSW). To the extent to which it is relied upon to prove similarities in circumstance between the matters relating to the plaintiff and the matters relating to other persons, in my opinion, it offends the coincidence rule established by s98 of that Act. That section provides as follows:
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally.
There is a proviso to that rule contained in paragraphs (a) and (b) of s98. One relates to the giving of reasonable notice in writing, which has not been done. The second is in the following terms:
Unless
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
In this case I have heard a significant body of evidence relating to the status of the workers who were employed at the first defendant's factory. Indeed, the oral evidence called by the first defendant, and that called by the second defendant, Mr Nicola and Mr Hepburn respectively, is very much to the one effect, that is to say that the companies involved, the first and second defendant and other companies not parties to these proceedings, are all part of a group of companies and that the payroll functions in relation to employees within the group are performed at the head office of the holding company or main company in the group being the second defendant. However, as Mr Nicola put it, that arrangement was one of administrative convenience. Mr Hepburn said the second defendant acted as "a chequebook" in respect of these employment matters for the first defendant. As I understood this evidence it is to the same effect although expressed slightly differently.
Mr Hepburn's evidence went further inasmuch as he said that in the financial accounts of the first defendant entries were made which were relevant to the amounts paid by the second defendant to the people working at the first defendant's factory so that in effect it might be said in due course for the purpose of final determination that the payments made by the second defendant were made at the direction of and for the benefit of the first defendant. This is a circumstance referred to by Handley JA in Pitcher v Langford (1991) 23 NSWLR 142 at 162.
I appreciate that although the evidence is nearly closed and I have not had the benefit of counsel's addresses on the significance of these evidential matters. I wish to make it clear that I am not making any final decision about the employment status of the other persons employed at the Park-Tec factory. To my mind given that the inquiry about the plaintiff's status is now closed and having regard to the oral evidence to which I have referred it cannot be said, or at least I am not persuaded, that the documentary evidence relied upon by the Court of Appeal in relation to the plaintiff will have significant probative value in relation to the determination of the question of the employment status of the other persons employed at the Park-Tec factory and I reject the tender.
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Decision last updated: 11 February 2014
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