Chiefton Management Pty Limited and Martin Anthony Purvis

[1996] IRCA 76

DECISION NO:   76/96

IN THE INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )      No. W195/2406
WESTERN AUSTRALIA DISTRICT REGISTRY)

ON APPEAL FROM A SINGLE JUDGE
      OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:CHIEFTON MANAGEMENT PTY LIMITED

Appellant

AND:MARTIN ANTHONY PURVIS

Respondent

CORAM:    WILCOX CJ, NORTH and MADGWICK JJ
PLACE:    PERTH
DATE:     28 FEBRUARY 1996

EXTEMPORE REASONS FOR JUDGMENT

WILCOX CJ:  This is an appeal by leave from an interlocutory judgment of Marshall J regarding a preliminary question that had been agreed between the parties and was directed to be heard by a Judge of the Court.  The preliminary question related to the nature of the relationship between the applicant, Martin Anthony Purvis and the respondent, Chiefton Management Pty Limited. 

When the preliminary question was framed, it seems not to have been appreciated that there were really two elements to it.  One of these was whether there was any relevant  legal relationship, at all, between the applicant and the respondent.  The second was:  if so, whether that relationship was that of employer/employee or principal/independent contractor. 

The position at the hearing before his Honour was confused.  It is not necessary to go into the detail of what happened.  It is sufficient to say that his Honour dealt with the second of those two elements, holding in favour of an employer/employee relationship, but not the first. 

The application for leave to appeal related to his Honour's failure to deal with the first of those elements.  It did not seek to impugn his Honour's conclusion that the nature of the assumed relationship between Mr Purvis and Chiefton Management Pty Limited was that of employee and employer.  In the argument today, material has been drawn to our attention which is said to demonstrate that there was in fact no relevant relationship between Mr Purvis and Chiefton Management; but rather that the relevant relationship was between Chiefton Management and a company, or a firm, associated with Mr Purvis. 

It seems to me that the appropriate course is for the matter to be referred back to the trial judge in order for this issue to be properly investigated.  Because of the confusion that took place at the hearing, it is not clear that all the evidence relevant to determining relevant parties is before the Court.  It would be undesirable to deal with such an important matter on the basis of onus of proof, especially where there was confusion as to what issues were raised by the preliminary point.  We understand from the representatives of the parties that they are content that the matter go back to Marshall J. This has the advantage of minimising the likely hearing time, as his Honour is already familiar with the case. 
          The appropriate course is for us to set aside the orders made by Marshall J on 29 September 1995 and also to set aside the direction of Deputy District Registrar Richardson made on 20 July 1995 for the determination of the preliminary issue.  In lieu of those orders it is appropriate to direct that the matter be listed for a telephone or video directions hearing before Marshall J as soon as possible, such directions hearing to be arranged with his associate.  The directions hearing will enable his Honour to give whatever directions are necessary to facilitate an early hearing of the whole matter.  In taking the view that it would be preferable for his Honour to hear the whole matter, I have in mind that the parties have suffered delay because of the interlocutory appeal, and also the desirability of minimising costs by having only one further hearing.  Having regard to the material already in evidence and his Honour's knowledge of the matter, it should be possible for the whole matter to be dealt with in one hearing day. 

I should add this, concerning his Honour's conclusion that the relationship between Chiefton Management and Mr Purvis was an employer/employee relationship, if Mr Purvis was the relevant contracting party,  I regard this issue as having been dealt with by his Honour and do not envisage that it will be reopened.  However, it would be open to either party, presumably Chiefton Management, to appeal in respect of that issue at the end of the case, and against a final order, if it saw fit.

NORTH J:   I agree with the orders proposed by the Chief Justice and the reasons for them.

MADGWICK J:   I agree.

WILCOX CJ:   The Court makes the orders to which I have referred.  We will now adjourn.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Court.

Associate:
Dated:     28 February 1996

APPEARANCES

Counsel and Solicitor

for the Applicant:                  Grant Chitty

Counsel and Solicitor

for the Respondent:               A Lovell (CEPU (WA Branch))

Date of hearing:  28 February 1996