Coopes v Daishsat Pty Ltd and Anor (No.2)
[2017] FCCA 2210
•13 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COOPES v DAISHSAT PTY LTD & ANOR (No.2) | [2017] FCCA 2210 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case for further discovery – criteria for declaration and order re discovery – interests of the administration of justice – fair and expeditious conduct of the proceedings – other matters. WORDS AND PHRASES – “interests of the administration of justice”. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 23, 119, 121, 335, 357, 570(2) |
| Cases cited: Abrahams v Qantas Airways (No 2) [2007] FMCA 639; (2007) 210 FLR 314 ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228; (2006) 232 ALR 69 Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205; (2010) 201 IR 26; (2010) 62 AILR 101-209 Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 North v Television Corporation Ltd (1976) 11 ALR 599; (1976) 177 CAR 1278 The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 |
| Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) |
| Applicant: | GRANT COOPES |
| First Respondent: | DAISHSAT PTY LTD |
| Second Respondent: | DAVID ROBERT DAISH |
| File Number: | PEG 28 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 4 May 2017 |
| Date of Last Submission: | 4 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Brunner |
| Solicitors for the Applicant: | Bailiwick Legal |
| Counsel for the Respondents: | Mr P Graham |
| Solicitors for the Respondents: | Clyde & Co Australia |
ORDERS
That the applicant’s application in a case made on 3 March 2017 be adjourned sine die.
That the matter otherwise be adjourned to the directions hearing listed at 9.30am on 14 September 2017.
Costs of the applicant’s application in a case made on 3 March 2017, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 28 of 2016
| GRANT COOPES |
Applicant
And
| DAISHSAT PTY LTD |
First Respondent
| DAVID ROBERT DAISH |
Second Respondent
REASONS FOR JUDGMENT
Application in a case for further discovery
In these proceedings, the applicant, Grant Coopes (“Mr Coopes”) seeks an order from the Court for further discovery in relation to his substantive application under the Fair Work Act 2009 (Cth) (“FW Act”) concerning the termination of his employment with the first respondent, Daishsat Pty Ltd (“Daishsat”).
Background – the substantive application and the issues to be resolved
Substantive application
There are numerous statutory and contractual claims made in the substantive application: see the Statement of Claim at [38] and [39], but it suffices for present purposes to observe that Mr Coopes asserts he was dismissed for reasons of redundancy. Daishsat denies that Mr Coopes was dismissed by reason of redundancy, and says that he was summarily dismissed for serious misconduct (as to the meaning of “serious misconduct” see FW Act, s.12; Fair Work Regulations 2009 (Cth), reg.1.07(1) (“FW Regulations”); North v Television Corporation Ltd (1976) 11 ALR 599; (1976) 177 CAR 1278; ALR at 608-609 per Smithers and Evatt JJ and 616 per Franki J; Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205; (2010) 201 IR 26; (2010) 62 AILR 101-209 at [58] per Lucev FM). Daishsat alternatively says that if Mr Coopes was made redundant then it had no obligation to pay him redundancy pay under s.119 of the FW Act by reason of s.121(1) of the FW Act which provides that the obligation to pay redundancy pay does not apply to the termination of an employee’s employment if, immediately before the time for termination, or at the time when the person was given notice of termination, whichever happened first, the employer is a “small business employer”.
Section 12 of the FW Act defines “small business employer” by referring to s.23 of the FW Act. Section 23(1) of the FW Act provides that:
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
Daishsat says that it was a small business employer at the time of Mr Coopes’ dismissal from employment, and therefore, even if he was made redundant as he alleges, no obligation to pay redundancy arises by reason of s.121(1)(b) of the FW Act.
It is the question of whether or not Daishsat was a “small business employer” as defined in s.23(1) of the FW Act for the purposes of the exclusion in s.121(1)(b) of the FW Act that gives rise to Mr Coopes’ application for further discovery: Transcript, 4 May 2017, page 2 (“Transcript”). That is because Mr Coopes disputes Daishsat’s assertion that “immediately before the time of the termination, or at the time when the person was given notice of the termination”: FW Act, s.121(1) it was a “small business employer”. In broad terms, the further discovery application by Mr Coopes, which is set out in more detail below, is directed to the issue of whether or not Daishsat is a “small business employer”. In that regard Mr Coopes asserts that persons whom Daishsat says are not employees were in fact employees at the relevant time or times prescribed by s.121(1) of the FW Act.
Discovery – order and application
Order 3 of orders made by the Court on 3 March 2017 provided for Mr Coopes to make an application in a case for discovery. Mr Coopes has now made that application, and pursuant to r.14.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) he seeks:
a)a declaration under s.45(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) to allow discovery; and
b)orders for the disclosure of certain documents, as set out hereunder:
2. The Applicant seeks orders that the Respondents file and serve supplementary discovery by affidavit, such discovery to include the following documents:
(a) Any and all contracts between the First Respondent and each of:
(i) Mr. Gavin Wohlfiel;
(ii) Ms. Lynda Daish;
(iii) Mr. Matt Ingall;
(iv) Mr. Tyson Cocks; and
(v) Mr. Peter Rose ('the alleged employees');
(b) All invoices rendered by each of the alleged employees or any invoices created by or on behalf of the First Respondent relating to any and all services rendered by the alleged employees, for the period January 2008 to 23 December 2015;
(c) All records that show superannuation contribution payments made in relation to each of the alleged employees and their nominated superannuation fund, for the period January 2008 to 23 December 2015;
(d) All pay slips, receipts or remittance advices for the alleged employees for the period January 2008 to 23 December 2015;
(e) All timesheets or time records completed by or on behalf of each of the alleged employees, for the period January 2008 to 23 December 2015;
(f) All expense reimbursement sheets or records for each of the alleged employees for the period January 2008 to 23 December 2015;
(g) All leave records for each of the alleged employees for the period January 2008 to 23 December 2015;
(h) All PAYG payment summaries for the period January 2008 and 23 December 2015;
(i) All payroll tax records for the period January 2008 and 23 December 2015; and
j) Any other documents pertaining to the engagement of the alleged employees by the First Respondent.
What is, in fact, sought is further discovery as the parties have already given general discovery: see the Court’s consent order of 25 August 2016 (“August 2016 Order”).
Affidavits and materials filed
The Court has had regard to the various affidavits filed thus far in the proceedings, particularly to the affidavit material referred to by Counsel at the hearing of the application for further discovery. For reasons which will become apparent, however, the various matters raised in relation to the material in the affidavits are not, for present purposes, of significant assistance to the Court in determination of the application for further discovery.
Consideration
Statutory provisions concerning discovery in this Court
Section 45 of the FCCA Act provides as follows:
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.
Rule 14.02 of the FCC Rules provides as follows:
(1) A declaration may be made under subsection 45(1) of the Act to allow discovery on the application of a party or on the Court's own motion.
(2) If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
The interests of the administration of justice and the fair and expeditious conduct of the proceedings
Initially, it is convenient to consider the interests of the administration of justice and the fair and expeditious conduct of the proceedings together, before moving to a consideration of the “other matters” which require consideration in relation to the interests of the administration of justice: Abrahams v Qantas Airways (No 2) [2007] FMCA 639; (2007) 210 FLR 314 at [11] and [25] per Lucev FM (“Abrahams (No 2)”).
In BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 (“Schultz”) the High Court considered the nature of the “interests of justice” at [15] per Gleeson CJ, McHugh and Heydon JJ observing that:
a)the interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered;
b)the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration; and
c)the justice referred to is not disembodied, or divorced from practical reality.
In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13, and, thus, s.45(1) of the FCCA Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in so doing the Court “must have regard to” whether discovery “will be likely to contribute to the fair and expeditious conduct of the proceeding” and such other matters as the Court considers relevant. The Court’s consideration of the phrase “interests of the administration of justice” as set out at [13] above has been applied in Abrahams (No 2) at [11] per Lucev FM and in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [24]-[25] and [28] per Lucev FM.
The determination of whether Mr Coopes was summarily dismissed for misconduct or whether he was made redundant precedes the issue of determining whether or not Daishsat is a “small business employer”. If the Court were to determine that Mr Coopes was summarily dismissed for misconduct there would be no need to determine the redundancy issue, and therefore the “small business employer” issue would not need to be determined at all. Furthermore, all of the issues in dispute in these proceedings, save for the question of whether or not Daishsat is a “small business employer” can seemingly be determined without the need for further discovery. The application for further discovery was not put on any other basis than that it was necessary to determine whether or not Daishsat is a “small business employer”: Transcript, page 2. In that regard, it can legitimately be said that further discovery may never be necessary in these proceedings because the Court may never have to determine the “small business employer” issue, depending on how it determines the issue of the alleged summary dismissal for misconduct.
If the Court does have to determine the issue of whether or not Daishsat is a “small business employer” that issue therefore arises only after the other issues have been determined. It is a discrete issue capable of separate determination, and, if treated discretely and separately to the summary dismissal and redundancy issues, will not require there to be further discovery at this stage of the proceedings.
The determination of whether Daishsat is a “small business employer” ultimately turns upon whether or not Daishsat employs fewer than 15 employees at the relevant time: FW Act, s.23(1). The determination of that issue requires consideration of the question of whether particular individuals are or are not employees, “employee” being separately defined in the first Division of each Part (with one exception) of the FW Act in which the term appears: FW Act, s.12 (definition of “employee”). For the purposes of the general protections provisions of the FW Act the meaning of “employee” is set out in s.335 of the FW Act, and provides that “employee and employer have their ordinary meanings”. Essentially, the issue to then be determined by the Court would appear to be whether or not the five persons referred to at [6(b)] above in the further discovery application are employees of Daishsat. In relation to those persons further discovery is sought of contracts, invoices, superannuation contribution payment records, payslips, receipts or remittance advices, time sheets and time records, all expense reimbursement sheets or records, all leave records, all PAYG payment summaries, all payroll tax records, and any other documents relating to the engagement of those persons.
In order to create a contract of employment various elements must be present, namely:
a)an intention between the parties to create an enforceable legal relationship;
b)an offer by one party and its acceptance by the other;
c)a contract supported by valuable consideration;
d)the legal capacity to make the contract;
e)genuine consent to the terms of the contract; and
f)that the contract must not be rendered ineffective by reason of conduct which is illegal or contrary to public policy.
See C Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011) page 96 at [4.40] (“Macken’s Law of Employment”).
Whether a person is an employee or not is a question of law: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228; (2006) 232 ALR 69 (“Visiting Medical Officers Association”); Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438; (2003) 129 IR 53; (2003) 202 ALR 494; (2003) 54 AILR 100-124 (“Damevski”), and there are many factors which may point to a contract being a contract of employment, with their relative importance varying with the circumstances. Control of the employee exercisable by the employer is a prominent factor, but not the sole criterion, and is one of a number of possible indicia of employment, including but not limited to “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision of holidays, the deduction of income tax and the delegation of work by the putative employee”: Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16; (1986) 60 ALJR 194; (1986) 63 ALR 513 at 24 per Mason J (with whom, on this point, Brennan and Deane JJ agreed at 47 and 49 respectively); Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 75 ALJR 1356; (2001) 47 ATR 559; (2001) 106 IR 80; (2001) 181 ALR 263; [2001] Aust Torts Reports 81-615; (2001) 50 AILR 4-476 at [43]-[45] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Visiting Medical Officers Association at [19] per Wilcox, Conti and Stone JJ. Payment of wages by a third party is not fatal to the existence of a contract of employment between an employee and an employer: Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; (1991) 37 IR 380; (1991) 99 ALR 735; [1991] ATPR 41-092; (1991) 33 AILR 163; Damevski, and employees may have so-called “host” employers: Damevski at [76] per Marshall J. The rendering of invoices is usually “quite foreign to an ordinary employment relationship”: Climaze Holding Pty Ltd v Dyson & Anor (1995) 13 WAR 487; (1995) 58 IR 260; (1995) 8 ANZ Insurance Cases 61-245; WAR at 495 and 497 per Steytler J (with whom Malcom CJ, WAR at 489 and Rowland J, WAR at 489 agreed). Of course, the rendering of invoices and the labelling of an employment relationship in a particular way has never been determinative of a person not being an employee if the invoices and labelling are part of a sham arrangement designed to avoid the persons being designated as employees: Cam & Sons Pty Ltd v Sargent (1940) 64 CLR 659; (1940) 14 ALJ 162 at 163 per Dixon J; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [282] per Judge O’Sullivan. In a now oft quoted passage the Federal Court in Re Porter; Re Transport Workers’ Union of Australia (1989) 34 IR 179; (1989) 31 AILR 382; IR at 184 per Gray J (“Porter”) it was said “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.” Section 357(1) of the FW Act now prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor under a contract for services with a third party, and in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 45; (2015) 256 CLR 137; (2015) 90 ALJR 107; (2015) 255 IR 229; (2015) 326 ALR 470; (2015) 67 AILR 102-490 at [21] per French CJ, Kiefel, Bell, Gageler and Nettle JJ the High Court adverted to the Porter metaphor in finding that there had been a contravention of s.357(1) of the FW Act.
Having regard to the well-known nature and difficulty of determining whether a person is or is not an employee, to the number of persons alleged to be employees in these proceedings, and the nature of the documents which are sought in the further discovery application in relation to those persons, it is, in the Court’s view, plainly evident that dealing with the further discovery application now and, if necessary, the “small business employer” issue at hearing, may result in a more lengthy hearing of the substantive application. The complexity of the issues to be determined will be increased by reason of having to determine whether Daishsat was a “small business employer”, which, it appears, will require determination of whether or not each of the five persons referred to in the orders sought by Mr Coopes are or are not employees. From what was said during the hearing of this matter the issues will descend to the minutiae of examination of invoice and expense sheets for each of the persons, who pays airfares for those persons to and from sites around Australia, whether those persons use their own vehicle or a Daishsat vehicle, whether there are rosters for those persons, who pays the telephone accounts for those persons, and an examination of their emails sent and received over the period of time those persons have spent at Daishsat: Transcript at page 18. In essence, what would appear to be at most a two day hearing without further discovery and determination of the “small business employer” issue will likely become a four day hearing if the “small business employer” issue has to be determined.
The Court is therefore looking at a two day hearing if it does not have to determine the “small business employer” issue, and a four day hearing if it does have to determine that issue (with the added requirement of further discovery being undertaken in the interim in order for that issue to be determined). Because certain dates have recently become available, the Court is in a position to accommodate a two day hearing on 29 and 30 November 2017 or 14 and 15 December 2017. If, however, a four day hearing were required that would not be able to be listed until at least mid-May 2018. Further, even if it were ultimately necessary to determine the “small business employer” issue a further two day hearing in relation to that issue would be able to be listed prior to mid-May 2018.
There is therefore unlikely to be any delay by reason of dealing with the “small business employer” issue as a separate issue. In practical terms, that means that further discovery on that issue would not presently be required if the matter were to be listed for hearing in relation to all issues save for the issue of whether or not Daishsat was a “small business employer”. Thus, a more expeditious hearing can be had at this stage by not making orders for further discovery, and if the “small business employer” issue needs to be dealt with, and if further discovery is necessary at that stage, a hearing of this matter will be no less expeditious than were further discovery now to be ordered and the “small business employer” issue dealt with as part of the substantive hearing. Put differently, if further discovery is not presently ordered, there may be a determination of the substantive application in a shorter and less costly hearing, but ultimately if it is necessary to determine the “small business employer” issue the totality of any hearing and further discovery will be no lengthier or more costly than would otherwise be the case. In that regard, the Court notes that because the determination of the “small business employer” issue is dependent upon the determination of whether particular persons are or are not employees of Daishsat, a separate hearing of that issue at a later time would not involve any greater preparation for the parties than would be required if the matter were now to be listed for a four day hearing.
Having regard to the matters set out at [15]-[22] above, and subject to what is said below in relation to the so-called “other matters” for the purposes of s.45(2)(b) of the FCCA Act, the Court is of the view that the interests of the administration of justice and the fair and expeditious conduct of the proceedings do not warrant an order for the further discovery sought by Mr Coopes, at this stage. Rather, the proceedings are better dealt with by way of having a separate hearing in relation to the question of whether Daishsat is a “small business employer” at a later time, if that becomes necessary.
Other matters
In Abrahams (No 2) at [25] per Lucev FM it was said that the “other matters” for the purposes of what is now s.45(2)(b) of the FCCA Act might include:
a)the relevance of any documents to be discovered;
b)the volume of documents to be discovered;
c)whether there is a Court book containing relevant documents, and the extent to which relevant documents are included in the Court book;
d)whether discovery would narrow the issues;
e)whether both parties seek discovery;
f)whether discovery is “of benefit” in the litigation; and
g)the effect of discovery on litigants, especially, vulnerable litigants.
The above categories are not closed: Abrahams (No 2) at [26] per Lucev FM.
In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 the Federal Court observed at [33] per Rangiah J (“Hartnett Legal Services”) that:
a)“it would be quite inconsistent with s 45 of the FCC Act to construe ‘disclosure generally’ as importing a wide test of relevance”; and
b)“s 45 operates to cut down the circumstances in which discovery may be ordered” and that it “would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams traditional discovery is generally prohibited in the Federal Circuit Court.”
The relevance of any documents to be discovered
The volume of the documents to be discovered
It is convenient to deal with these two matters together.
The documents sought by way of further discovery are relevant, but only if it is ultimately necessary to determine the “small business employer” issue. Thus, if it is not necessary to determine that issue at this stage, they are not relevant for present purposes, but may become relevant at a later stage of the proceedings. At that stage, it may be necessary to determine whether or not the further discovery sought is inconsistent with s.45 of the FCCA Act because it requires disclosure generally on a wide test of relevance: Hartnett Legal Services at [33] per Rangiah J, or whether relevant documents are of sufficient relevance to warrant a further discovery order: Gallagher v BHP Billiton Nickel West Pty Ltd & Anor [2016] FCCA 3367 at [42] per Judge Lucev.
The volume of documents sought by way of further discovery is, in absolute terms, not large, but nor is it small, particularly in the context of litigation between an individual and an employer, and even if Daishsat is not a “small business employer” for the purposes of s.23 of the FW Act, it is in ordinary language, at best, a small to medium sized employer. Further, it is not readily apparent why it is that in order to determine whether or not the five persons named in the orders proposed for further discovery by Mr Coopes are or are not employees, it is necessary to have documents produced over a seven year period, rather than for a reasonable period prior to Mr Coopes’ termination, so as to enable determination of whether those persons were or were not employees immediately before the time of Mr Coopes’ termination, or at the time Mr Coopes was given notice of termination, they being the relevant timeframes for the purposes of s.121(1) of the FW Act. Thus, it appears that the volume of documents sought could, in any event, be considerably reduced.
At this stage of the proceedings neither the general relevance of the documents, nor the volume of documents sought, in the further discovery weigh in favour of making the further discovery order sought.
Whether there is a court book containing relevant documents
There is no court book containing relevant documents.
Whether discovery would narrow the issues
Further discovery will not narrow the issues. Indeed, further discovery is only required if the “small business employer” issue needs to be determined, which at this stage of the proceedings it does not: see [15]-[23] and [27]-[29] above.
Whether both parties seek discovery
Only Mr Coopes seeks further discovery in this application.
Whether there is consent to discovery
There is no consent to Mr Coopes’ request for further discovery.
Whether discovery is “of benefit” in the litigation
The effect of discovery on the litigants
The above two factors can be considered together.
For reasons set out above further discovery at this stage is not necessarily of benefit in the litigation: see [15]-[23] and [27]-[29] above. It may be that the litigation is able to be determined without the necessity for further discovery, and even if further discovery is necessary, the litigation can most likely be completed within a timeframe and at no more cost than if further discovery were to be ordered now. Obviously, the effect of further discovery on the litigants at this stage is to possibly delay the ultimate resolution of the issue, but even if that ultimate resolution is not delayed, further discovery at this stage imposes significantly greater costs in the short term, which costs may ultimately prove to be unnecessary if Daishsat’s primary argument, that it dismissed Mr Coopes summarily for serious misconduct, were to be successful.
In all of the above circumstances the Court is of the view that it cannot be said that further discovery is of benefit in the litigation at this stage, and that the effect of further discovery on the litigants at this stage would be to impose a delay and costs, both of which might ultimately prove to be unnecessary.
Objects of the FCCA Act
The Court is also of the view that ordering further discovery at this stage would not be consistent with the objects of the FCCA Act which require the use of streamlined procedures: FCCA Act, s.3(2)(b), or the mandatory requirement in s.42 of the FCCA Act for the Court to endeavour to ensure that proceedings are not protracted. Nor would an order which did not provide for further discovery at this stage, and did not require for determination of the “small business employer” issue at this stage, run counter to the requirement in s.14 of the FCCA Act that the Court grant remedies that so far as possible in respect of all matters in controversy be completely and finally determined and avoid a multiplicity of proceedings. Whichever course the Court were presently to adopt the proceedings would be completely and finally determined without the necessity for a multiplicity of proceedings in the sense that the phrase is used in s.14 of the FCCA Act. Further, for reasons set out above, if the Court proceeds to hear the matter in all respects save for the determination of whether Daishsat is a “small business employer” for the purposes of ss.23 and 121 of the FW Act, the matter will still be completely and finally determined, and with the possibility that that outcome might be achieved in a shorter and less costly set of proceedings, than would otherwise be the case.
August 2016 Order
It was argued for Mr Coopes that Daishsat had not complied with the August 2016 Order for general discovery: Transcript at pages 4-6. The Court notes that it is arguable that Daishsat has not complied with the August 2016 Order for general discovery. That, however, begs the question as to whether the persons in respect of whom the further discovery is now sought are employees or not, and if they are not, as is Daishsat’s view, then the August 2016 Order has been complied with. In short, for reasons otherwise set out above: see [15]-[22] and [27]-[28] above, the resolution of the issue of whether the five persons in respect of whom further discovery is sought are employees of Daishsat or not, is unnecessary at this stage of these proceedings, and there is therefore nothing to be gained by dealing with the question of whether or not there has been compliance with the August 2016 Order, the answer to which hangs upon whether the five persons are or are not employees of Daishsat.
Records required to be kept
For similar reasons as those in relation to the August 2016 Order set out above: see [38] above, the allegation made by Mr Coopes that Daishsat is required to maintain employment records under the relevant provisions of the FW Act and FW Regulations does not advance the matter further: again, it simply begs the question as to whether or not the persons concerned are or are not employees, and if they are not, then there is no obligation to maintain the relevant records. But, once again, it is unnecessary to determine that issue at this stage in the proceedings for reasons otherwise set out above: see [15]-[22] and [27]-[28] above.
Conclusions and orders
The Court has concluded that:
a)the hearing of the substantive application can proceed in all respects, save for the determination of whether Daishsat is a “small business employer” for the purposes of ss.23 and 121(1)(b) of the FW Act;
b)if it becomes necessary to determine whether or not Daishsat is a “small business employer” for the purposes of ss.23 and 121(1)(b) of the FW Act that issue can be determined as a separate issue in a separate hearing at a later time to the hearing referred to in (a) above; and
c)it is therefore unnecessary at this stage to order further discovery for the purposes of determining whether or not Daishsat is a “small business employer” for the purposes of ss.23 and 121(1)(b) of the FW Act, but that does not preclude an order for further discovery in relation to that issue being made later in these proceedings, if necessary.
Having regard to the conclusions in [40] above, the appropriate order is that Mr Coopes’ application in a case made on 3 March 2017 be adjourned sine die. The matter is otherwise adjourned to the already listed directions hearing at 9.30am tomorrow, 14 September 2017, at which time the Court will look to make orders listing the substantive application for hearing on the basis set out in [40] above. Costs of the application for further discovery, if any (see FW Act, s.570(2)), will be reserved.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 13 September 2017
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