Cooper v Sonnet trading as v People

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FEDERAL COURT OF AUSTRALIA

Cooper v Sonnet trading as V People [2024] FCA 331   

Appeal from: Cooper v William Sonnet Trading as V People [2023] FedCFamC2G 772
File number(s): QUD 385 of 2023
Judgment of: MEAGHER J
Date of judgment: 5 April 2024
Catchwords: PRACTICE AND PROCEDURE – Appeal – No error of law – Where appellant claims fraudulent documents were adduced – Where no basis to reverse findings of fact – Appeal dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth) s 27

Federal Court Rules 2011 (Cth) rr 36.01(2), 36.72
Cases cited:

CKF16 v Minister for Immigration & Border Protection [2017] FCA 1492

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Edwards v Noble (1971) 125 CLR 296

Lindsey v Philip Morris Ltd [2004] FCAFC 40

McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1725

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

Zegarac v Dellios [2007] FCAFC 58
Division: Fair Work
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 40
Date of hearing: 6 March 2024
Counsel for the Applicant: Applicant appeared in-person
Counsel for the Respondent: Respondent appeared in-person

ORDERS

QUD 385 of 2023
BETWEEN:

CAROLYN COOPER

Applicant
AND:

WILLIAM SONNET T/A V PEOPLE

Respondent

ORDER MADE BY:

MEAGHER J

DATE OF ORDER:

5 APRIL 2024

THE COURT ORDERS THAT:

1.The notice of objection to competency of appeal filed on 23 November 2023 be dismissed.

2.The appeal be dismissed.

3.The parties are to bear their own costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

  1. By an amended notice of appeal filed on 10 November 2023, the appellant seeks to appeal against the whole of the decision of Cooper v William Sonnet Trading as V People [2023] FedCFamC2G 772 (PJ). The Primary Judge dismissed an application seeking the payment of unpaid wages on the basis that the respondent had rectified the underpayment and remitted 47 per cent to the Australian Taxation Office (ATO). In her amended notice of appeal, the appellant relied on the following grounds:

    1.I oppose the orders to dismiss this case made by Judge Vasta 07//09/2023.

    2.The evidence of payment provided and relied upon by the respondent was not evidence of wages paid to appellant. The appellant did not receive unpaid wages from respondent of $10,467.89.

    3.I ask permission for the court to issue 2 subpoenas relating to the 2 unresolved issues in dispute by the appellant. Payment for balance of unpaid wages has not been received by the appellant. Please refer to pages 8 to 13 of original Affidavit for detailed explanation.

  2. The appellant thus seeks orders for the respondent to pay the appellant the sum of $10,467.89, damages and costs.

  3. For the reasons that follow, the appeal is dismissed.

    BACKGROUND

    The proceedings below

  4. The factual background to…

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Details
Case
[2024] FCA 331
Decision Date

CaseChat Overview and Summary

The appeal in Cooper v Sonnet trading as V People was dismissed by the court, which found no legal errors in the original proceedings. The appellant, Ms Carolyn Cooper, had alleged that she was underpaid during her employment with the respondent, William Sonnet, and sought additional compensation. The court examined whether the appeal was competent, considering the appellant's claims that fraudulent documents were presented in the original case. However, the court found no basis to reverse the findings of fact made by the Primary Judge.

The central legal issue was whether the appeal had been filed competently, particularly whether the appellant's claims of fraudulent evidence presented a valid ground for appeal. The court considered the respondent's argument that the appellant had failed to challenge the authenticity of the evidence during the original proceedings, citing relevant case law. The court concluded that the appeal was competent but found it to be without merit, as the appellant had not provided evidence to support her claims of fraud.

The court's reasoning was that the appellant had not demonstrated any error of law or fact by the Primary Judge that warranted the appeal. The underpayment had been rectified, and there was no evidence presented to substantiate the appellant's claims of fraudulent documents. Consequently, the appeal was dismissed, and the parties were ordered to bear their own costs. The court's decision was based on the appellant's inability to show any appealable error, reinforcing the findings of the Primary Judge.

Orders

Orders of the court

1. The notice of objection to competency of appeal filed on 23 November 2023 be dismissed.

2. The appeal be dismissed.

3. The parties are to bear their own costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the appeal is dismissed. BACKGROUND The proceedings below The factual background to this matter is helpfully and comprehensively set out in the Primary Judge’s reasons at [3] – [14]. The key facts are as follows. From 1 September 2019 until 31 October 2021, the appellant, Ms Carolyn Cooper, was an employee of the respondent, William Sonnet trading as V People. During this period, the appellant and the respondent engaged in a cash payment arrangement whereby the appellant was to be paid $80.00 in cash for every six-hour shift she worked. The parties had also agreed that the appellant would receive commission of $10.00 after she sold $300.00 worth of stock and a further $10.00 for every $100.00 worth of sales made thereafter. There is some factual dispute as to who initiated the discussion around the cash arrangement. The appellant claims that the respondent instituted this arrangement and the respondent claims that the appellant sought it. The appellant claims that the working relationship with the respondent began to deteriorate around October 2021. At this time, the appellant alleges she became aware that she was being underpaid for her services as a casual retail salesperson. Following a letter by the appellant to the respondent notifying him of the underpayment, the respondent, through his lawyer, requested the appellant’s Tax File Number (TFN) in order to rectify the underpayment. The appellant refused to provide her TFN on the basis that she wished to first agree on the amounts to be paid. The respondent’s accountant calculated that the appellant had been paid in cash the sum of $8,560.00 for wages and $1,870.00 for commission. Given that the General Retail Industry Award (the Award) does not address commission, the Primary Judge was satisfied that the commission paid should be treated as wages paid. Therefore, the Primary Judge found the appellant had been paid a total of $10,630.00 in cash. As the appellant refused to provide her TFN, the respondent proceeded to remit 47 per cent of the unpaid amount, being $10,416.00, to the ATO. The remaining 53 per cent was calculated as being a sum of $12,104.57. The respondent therefore paid the appellant the sum of $1,474.57, being the difference between the cash amount she had already received and the total of the 53 per cent referred to in the preceding sentence. The appellant acknowledged that she has received this sum. On 7 August 2023, the Primary Judge accepted that the underpayment was rectified and dismissed the application. Appeal At the outset, it should be noted that both parties were self-represented in these proceedings. In her amended notice of appeal, the appellant sought the following relief: 1.The respondent to pay to the appellant the sum of $10,467.89 for balance of unpaid wages. 2.The respondent to pay to the appellant costs associated with these proceedings. 3.I ask Her Honour to consider making an order for damages in favour of the appellant if this case is found in favour of the appellant. The proceedings to have unpaid wages reimbursed from the respondent has taken from February 2022 to October 2023. The respondent provided fraudulent documents to prove payment that has not been received by the appellant. Please refer to Pages 8 to 13 of original affidavit.

Evidence

Evidence Before The Court

Section 27 of the Federal Court of Australia Act 1976 (Cth) provides: Evidence on appealIn an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:(a) on affidavit; or(b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or(c) by oral examination before the Court or a Judge; or(d) otherwise in accordance with section 46. Rule 36.01(2) of the Federal Court Rules 2011 (Cth) specifies what a notice of appeal must include:(2) The notice of appeal must state:(a)whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and(b)if only part of the judgment, or some of the orders, is appealed from—the part of the judgment or the particular orders appealed from; and(c)briefly but specifically, the grounds relied on in support of the appeal; and(d)the judgment or orders the appellant wants instead of the judgment or orders appealed from. Rule 36.72 of the Rules provides the mechanism for the filing of a notice of objection to competency of appeal: Notice of objection to competency of appeal(1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency:(a) in accordance with Form 125; and(b) that, briefly but specifically, states the grounds of the objection.(2) The appellant carries the burden of establishing the competency of an appeal.(3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal.(4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.(5) If the Court decides that an appeal is not competent, the appeal is dismissed.CONSIDERATION Is the appeal incompetent? At the hearing, the respondent requested that the competency of the appeal be determined before the hearing of the appeal. He submitted that, despite the appellant having the opportunity to present evidence as to the lack of authenticity of his evidence at the first instance, she did not do so. To that end, the respondent referred to Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 at [41] in which it was stated (per Weinberg and Dowsett JJ): …It is unrealistic to expect an appellate court to revisit the evidence at large as is invited by the grounds of appeal, even in their ultimate, narrower form. … A notice of appeal may be incompetent when it is “incomprehensible or entirely unrelated to the issues dealt with in the judgment”: Zegarac v Dellios [2007] FCAFC 58 at [7] (North J, Weingberg and Jessup JJ agreeing). In McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10, the Court stated at [6]: The word “incompetent” is one that is not alone amongst legal terms in having the capacity to offend people who do not know that it is a term of art. It may be a term that needs revision and one that should be brought up to date. But in the context of this case, what it means to say that an appeal is incompetent is that the matter simply cannot proceed because the law does not allow it to. ….(emphasis added)

Decision

Reasons for decision

As acknowledged by the Primary Judge, there had undoubtedly been an underpayment. However, it remains the case that the underpayment has been rectified. The appellant has not provided any evidence to support the proposition that the respondent had relied upon fraudulent evidence. The Primary Judge did not err on the finding of fact in that regard. CONCLUSION While the notice of objection to competency to appeal is dismissed on the basis that the appeal is competent, the amended notice of appeal is dismissed as it discloses no appealable error and is without merit. Given that both parties are self-represented, each party is to bear their own costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.