Cox v West Australian Pork Producers Association - [2021] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   COX -v- WEST AUSTRALIAN PORK PRODUCERS ASSOCIATION [2021] WADC 68
CORAM:   REGISTRAR HOGAN
HEARD:   23 JUNE 2021
DELIVERED          :   7 JULY 2021
FILE NO/S:   CIV 2805 of 2020
BETWEEN:   RUSSELL COX
Plaintiff
AND
WEST AUSTRALIAN PORK PRODUCERS ASSOCIATION
Defendant

Catchwords:

Application for summary judgment - Claim for unpaid wages - Statute barred

Legislation:

Limitation Act 2005 (WA), s 46, s 48, s 49
Rules of the Supreme Court 1971 (WA)

Result:

Application for summary judgment granted

Representation:

Counsel:

Plaintiff	:	Mr R P Camm
Defendant	:	Mr D Markovich

Solicitors:

Plaintiff	:	Camm & Associates
Defendant	:	Lane Buck & Higgins

Case(s) referred to in decision(s):

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Knights Capital Group v Bajada and Associates Pty Ltd [2016] WASC 69
Re Compania De Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146
Westpac Banking Corporation v Anderson [2017] WASC 106
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272

REGISTRAR HOGAN:

By application dated 6 April 2021 filed 9 April 2021 the defendant sought orders that:
1.Judgment be entered for the defendant.
2.Alternatively, in the event that judgment is not entered for the defendant:
2.1Pursuant to Order 25 of the Rules of the Supreme Court 1971 (WA) (RSC) the plaintiff do within seven days give security for costs by way of payment into court in the sum of $40,000 for the defendant's reasonable costs up to and including a listing conference.
2.2In the event that the plaintiff fails to comply with order 2.1 of these orders, the proceedings be stayed until such time as the plaintiff pays the further sum of $40,000 into court.
2.3The defendant have liberty to apply for further security for costs.
3.The plaintiff do pay the defendant's cost of these applications and of the proceedings to be taxed if not agreed.

By direction 8 of Consent Orders made 21 April 2021 the only issue to be determined at the special appointment was the summary judgment application.
In support of the application the defendant filed a substantive submission on 2 June 2021 and a submission in reply on 22 June 2021.
The defendant filed the following affidavits:
1.David Markovich affirmed 9 April 2021.
2.Graeme Leslie Dent affirmed 4 May 2021.
3.Richard Ian Evison affirmed 31 May 2021.
The plaintiff filed a submission in opposition to the application on 11 June 2021.
The plaintiff filed the following affidavits:
1.Richard Parker Camm sworn 7 May 2021.
2.Russell Cox sworn 11 June 2021.
By O 16 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC) the court may enter judgment for a defendant if satisfied that the action is frivolous or vexatious (or) that the defendant has a good defence on the merits.
The power will not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd.[1]
[1] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
The onus is on the defendant, as applicant, to persuade the court that it is appropriate in the circumstances to award summary judgment pursuant to O 16 r 1 RSC: Knights Capital Group v Bajada and Associates Pty Ltd.[2]
[2] Knights Capital Group v Bajada and Associates Pty Ltd [2016] WASC 69 [42] (Pritchard J).
The principles in relation to the determination of applications for summary judgment are summarised in Westpac Banking Corporation v Anderson:[3]
… A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. The question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail. However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.
[3] Westpac Banking Corporation v Anderson [2017] WASC 106 [50] - [54].
The plaintiff filed a writ of summons on 31 July 2020 claiming repayment of $112,488.75, together with interest and costs as at the date of the writ, being money due and owing to the plaintiff by the defendant, for unpaid wages for work performed by the plaintiff, pursuant to his employment agreement with the defendant.
The plaintiff was engaged under a contract of employment with the defendant between 2004 until either 31 July 2014 or 1 August 2014 when his employment with the defendant was terminated following a financial investigation and audit.
It was agreed between the parties that the claim for unpaid wages was for a period from 2008 until July 2013 and that the plaintiff's entitlement to wages, pursuant to his contract of employment was to be paid on a fortnightly basis.
The defendant contended that any claim for breach of the contractual terms, as alleged by the plaintiff, was statute barred.
The plaintiff contended that the claimed overtime arose due to work he performed outside of his employment contract and that he was not remunerated for that work. The plaintiff did not contend that the cause of action arose at a different time than as understood by the defendant but that the time limits of pursuing the cause of action were reset by the conduct of the members of the defendant.
The defendant's case is that the plaintiff was not entitled to payment of any entitlements beyond that prescribed in the employment contract. The plaintiff was suspended from his employment on 24 July 2014. The suspension letter refers to an admission of the plaintiff making transfers of money for his own personal use or for unapproved expenses and on 31 July 2014 or 1 August 2014 the plaintiff's employment was terminated.
The plaintiff's case is that upon the termination of his employment (on 1 August 2014) that he sought to be remunerated for work he had performed on behalf of the defendant which included a claim in relation to a substantial volume of work that he had performed which he claimed was outside the scope of his employment contract for which he had not been paid.
The plaintiff contended that after the termination of his employment with the defendant, he had various discussions with Mr Evison who was then the president of the defendant. The discussions to which Mr Cox refers in his affidavit sworn 11 June 2021 are:
(a)16 September 2014 by telephone;
(b)23 September 2014 in a meeting;
(c)2 October 2014 by telephone; and
(d)10 October 2014 by telephone.
The plaintiff swore that the conversations related to various matters including payments due to him for additional work that he had performed over the period of his employment with the defendant. The plaintiff said that the discussions he had with Mr Evison related to[4]
any claims that I was considering making against the defendant with respect to monies owed to me for the work I had performed.
[4] Affidavit of Mr Cox at par 7.
The plaintiff contended that conversations he had with Mr Evison resulted in him delaying pursuing those claims as[5]
I understood from my discussions with Evison that the matter of any workplace claims would be resolved in due course by the defendant and that such claims should be delayed.
[5] Affidavit of Mr Cox at par 8.
In response to those claims, Mr Evison in his affidavit affirmed 31 May 2021 states in par 9:
I confirm that there was no discussion between the plaintiff and me to the effect that he told me that the defendant owed him unpaid monies or whereby we offered to investigate any such further entitlement.
The defendant contended that the plaintiff's claim is statute barred due to s 46 - s 49 of the Limitation Act 2005 (WA) (LA).
Section 46 of LA states:
46. Meaning of confirmation
(1)For the purposes of this Act, a person confirms a cause of action if the person -
(a)acknowledges, to a person having the cause of action (person A), person A’s right or title, even though the acknowledgment does not disclose a promise to pay;
(b)makes, to a person having the cause of action (person B), a payment in relation to person B’s right or title and makes the payment in circumstances not inconsistent with an acknowledgment of that right or title; or
(c)makes, to a person having a cause of action to foreclose the equity of redemption of mortgaged property or to recover possession of mortgaged property (person C), a payment of principal or interest secured by the mortgage or a payment to person C otherwise in relation to person C’s right or title to the mortgage.
(2)In subsection (1) a reference to a person having a cause of action is a reference to the person having the cause of action either solely or with other persons.
The defendant contended that the plaintiff was unable to identify anything that would constitute an admission that the debt remained outstanding. Whilst the plaintiff said he raised the issue and that the defendant advised him that he should delay pursuing a claim, this does not constitute an admission of the debt.
Section 48 imposes a formal requirement for the acknowledgement of any debt and is:
48.Formal requirements for acknowledgements
For the purposes of section 46(1)(a), an acknowledgment is of no effect unless it is in writing and signed by the maker.
49.Who has benefit of confirmation
For the purposes of this Act, a person (person A) has the benefit of a confirmation if the confirmation is made to person A or to a person through whom person A claims.
It is therefore clear that a written acknowledgment cannot be said to be 'made to' a creditor unless it is delivered to him with the authority of the debtor. The creditor should actually receive the acknowledgement before he or she can rely on it: see Re Compania De Electricidad de la Provincia de Buenos Aires Ltd.[6]
[6] Re Compania De Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146, 193 - 194.
The plaintiff in his affidavit does not depose to having received anything in writing and refers only to conversations, the contents of which are in dispute. He did not point to the existence of any document he had received upon which he had relied to explain the delay in seeking payment of the monies to which he claimed to be entitled.
The issue on an application for summary dismissal is whether the action should be allowed to go to trial:[7]
The court examines the evidentiary materials placed before it on such an application, not for the purpose of making findings of fact where the material conflicts but to determine whether a triable issue is disclosed.
[7] Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272.
In this case it is disputed that the plaintiff ever received an acknowledgement of the debt.
There is no evidence the plaintiff ever received written acknowledgement of any such debt as required by s 48 of the LA. In these circumstances the defendant's application for summary judgment must succeed.
Accordingly, the application for summary judgment is granted.
Whilst the defendant's application for summary judgment has succeeded, the affidavit evidence before me makes it clear there is a fundamental dispute of fact which could only be determined by hearing the evidence of the witnesses which must be done by a judge. Had the application by the defendant not been decided on the basis of the LA the defendant's application would not have fulfilled the criteria required to have been successful in a summary judgment application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Court Officer
7 JULY 2021