Gale v SUEZ Recycling & Recovery Pty Ltd
[2021] FCCA 680
•7 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gale v SUEZ Recycling & Recovery Pty Ltd [2021] FCCA 680
File number(s): BRG 300 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 7 April 2021 Catchwords: PROFESSIONS AND TRADES – Lawyers – duties and liabilities – duties to court – other matters.
HIGH COURT AND FEDERAL COURT – Federal Circuit Court – procedure – transfer of proceedings.
HIGH COURT AND FEDERAL COURT – Federal Circuit Court – procedure – other matters – particulars.
Legislation: Fair Work Act2009 (Cth), ss 44, 62, 62(3), 535(1)
Fair Work Regulations 2009 (Cth), reg 3.34
Federal Circuit Rules 2001 (Cth) r 8.02(4)(a)
Cases cited: CFMMEU v Hay Point Services Pty Ltd (2018) 282 IR 228
Gorval v Employsure Pty Ltd [2016] FCCA 231
Number of paragraphs: 32 Date of last submission/s: 24 September 2020 Date of hearing: 24 September 2020 Place: Brisbane Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Your Law Australia Counsel for the Applicant: Mr Fredericks Solicitor for the Applicant: Thomson Geer ORDERS
BRG 300 of 2020 BETWEEN: ALLAN LAWRENCE GALE
Applicant
AND: SUEZ RECYCLING & RECOVERY PTY LTD
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
7 APRIL 2021
THE COURT ORDERS THAT:
1.The application in a case filed on 4 September, 2020 is dismissed.
2.By 4.00pm on 11 May, 2021, the respondent provide further and better particulars of the allegations set out in paragraphs 10(b), 13(a) and 13(e) of its defence filed on 4 September, 2020 by replicating annexure A to the applicant’s amended statement of claim filed on 15 July, 2020 and adding four columns marked “M”, “N”, “O” and “P” to the immediate right of the column marked “L” which shall contain the following information in respect of each line of the applicant’s claim set out in annexure “A”:
(a)in respect of column “M” – the start time alleged by the respondent;
(b)in respect of column “N” – the finish time alleged by the respondent;
(c)in respect of column “O” – the total time for which the applicant was paid for that day; and
(d)in respect of column “P” – the total unpaid additional time worked by the applicant on that day.
3.Otherwise the application in a case filed on 14 September, 2020 is dismissed.
4.The application is adjourned to 17 May, 2021 at 9:30am for directions.
REASONS FOR JUDGMENT
JUDGE JARRETT:
There are three interlocutory applications before the Court. The first is an application for an order restraining Counsel for the applicant from continuing to act in the proceedings any further. The second is an application for an order that the matter be transferred to the Federal Court of Australia. The third is for further and better particulars. I will deal with each application in turn.
THE RESTRAINT APPLICATION
The respondent seeks an order that the applicant’s counsel, Mr Ford, be restrained from acting for him in these proceedings. The respondent’s application is said to be made pursuant to the inherent power of the Court to regulate its own process.
Mr Ford, currently counsel for the applicant and who appears on this application, attended a meeting that the applicant had with the representatives of the respondent on 10 December, 2019. The meeting concerned the matters at issue in these proceedings. Those matters arose out of the applicant’s employment with the respondent. Mr Ford was the applicant’s representative or support person. He is also the son-in-law of the applicant.
The next day Mr Ford wrote to the respondent on behalf of the applicant about the issues discussed at the meeting. There is some dispute between the parties as to whether Mr Ford disclosed at the meeting that he was a lawyer, but in my view that does not matter. There is no dispute that Mr Ford attended the meeting or that he authored the subsequent letter. That letter was on letterhead that identified Mr Ford as a lawyer.
The respondent submits that by attending the meeting and sending the letter the following day, Mr Ford has put in himself in a position where he is now a witness to material events and it is likely that he will give evidence at any trial of these proceedings. The respondent contends that what was said at the meeting and later set out in the letter will be directly relevant to the matters which the Court will be required to consider to determine the issues between the parties.
The respondent’s submissions require a consideration of the issues raised by the pleadings and what part, if any, the meeting will have to play in the resolution of those issues.
In his amended statement of claim filed on 15 July, 2020 the applicant claims:
(a)a declaration that the respondent contravened s.44 of the Fair Work Act2009 (Cth);
(b)a finding that the respondent contravened s.535(1) of the Act;
(c)compensation or alternatively damages for the respondent’s contravention of the Act of $225,733.79;
(d)superannuation, calculated by reference to the compensation amount, of $21,224.85;
(e)interest; and
(f)an order that the respondent pay a pecuniary penalty to the applicant in respect of contraventions of ss.44 and 535(1) of the Act; and
(g)costs.
In his amended statement of claim, the applicant claims that he was an employee of the respondent. He was employed by the respondent or its predecessors from about 1990 in various roles. He alleges that he was a permanent full-time employee and he commenced his role with the present respondent in April, 2012. His contract of employment with the present respondent is evidenced in a letter dated 22 March 2012. None of this is controversial.
The applicant claims that his contract required him to work 38 hours per week. He claims that, in fact, he worked in excess of 38 hours per week because the respondent required him to do so. His claim is for the unpaid overtime that he says he worked at the respondent’s request. He says that the overtime that he worked at the respondent’s request was not additional work the respondent can ask him to perform pursuant to s.62 of the Act. In his amended statement of claim, he particularises the amount of unpaid overtime (in the amount of $225,733.79). The applicant’s claim spans the period from 2 April, 2012 to 10 December, 2019. He claims superannuation calculated according to the unpaid overtime amount. He also alleges that the respondents did not keep proper records of his overtime as it was required to do by s.535(1) of the Act or reg. 3.34 of the Fair Work Regulations 2009 (Cth). I have only referred to the applicant’s amended statement of claim, of course, because it supersedes the statement of claim filed on 29 May, 2020.
The respondent denies the applicant’s claim generally. Whilst the respondent admits that the applicant worked hours exceeding 38 hours per week, it asserts that any hours worked in excess of 38 hours per week were reasonable additional hours that the applicant was obliged to work at the request of the respondent under the terms of his employment agreement or that he was obliged to work by reason of s.62 of the Fair Work Act. The respondent raises a limitation defence and asserts that part of the claim made by the applicant cannot be maintained by him because it extends beyond six years prior to commencement of the proceedings. It denies the record-keeping contraventions.
It is against those pleaded matters that the meeting of 10 December, 2019 and the letter of 11 December, 2019 are said to be relevant. However, it is not immediately apparent how a meeting which took place on 10 December, 2019 might be relevant to the issues in dispute between the parties as revealed by the pleadings.
The respondent relies upon an affidavit sworn by its solicitor who deposes that:
The matters discussed at that 10 December 2019 meeting will be relevant to a material issue in this proceeding, namely the application of the factors set out in section 62(3) of the Fair Work Act 2009 (8) (Cth) (Act) to the facts of Mr Gale’s claim.
Simply to say that the meeting of 10 December, 2019 will be relevant to a material issue in the proceeding does not make it so. In an effort to make good the assertion and after referring to the letter written by Mr Ford (annexure “ACR-1” to the affidavit), the solicitor deposes that:
4. Amongst other things, ACR-1 states:
a.a request or instruction given to Mr Gale ... to work (at least) an extra 1.5 hours per day above his usual, full-time hours, without additional pay was not a reasonable request, given this would amount to Mr Gale working an extra 7.5 hours per week (nearly a full day), unpaid, indefinitely (paragraph 5.b. of ACR-1);
b.there was apparently no operational reason for this request (paragraph 5.d. of ACR-1);
c.Mr Nimmo said that Mr Gale “usually worked 1am to 12.30pm” and asked if there were now personal reasons why he wished to work the ‘reduced hours’ he presently works (3am to 11am) (paragraph 11.a. of ACR-1) and can ask for an alternative arrangement to work reduced hours (paragraph 11.c. of ACR-1);
d.Mr Gale does not need to be on an alternative arrangement and can work the hours he is required to work under his contract (paragraph 11.d. of ACR-1);
e.it is not unreasonable for Mr Gale to ask to work the 8 hours he is contracted to do when he isn’t paid for overtime (paragraph 11.h. of ACR-1);
f.on-road supervisors in Mr Gale’s position regularly worked significant overtime hours, unpaid, up to 12 hours a day, and that this was just part of the role (paragraph 11.j. of ACR-1);
g.it is unreasonable to expect employees, salaried for 38 hours per week, to constantly work 12 hours per day without extra pay (paragraph 11.k. of ACR-1);
h.in response, Mr Nimmo said that, “That is how their employment contracts work’ (paragraph 11.1. of ACR-1);
i.in response, Mr Ford said that that is not how they work, and, “If you are expected to work such long hours, regularly, you are entitled to be paid for it…” (paragraph 11.m of ACR-1);
j.Mr Gale is not opposed, as a salaried employee, to working reasonable unpaid overtime, from time to time but his grievance is with a constant expectation that he work additional, unpaid hours (paragraph 14 of ACR-1); and
k.proper operational basis was not given for the original need for Mr Gale to recommence working excessive hours (paragraph 15 of ACR-1), having worked fewer hours since June 2019 (paragraph 5.b. of ACR-1).
The solicitor further deposes that “Each aspect of ACR-1 that is extracted in paragraph 4 above, is directly relevant to a material issue in this proceeding, namely the application of the factors set out section 64(3) of the Act to the facts of Mr Gale’s claim. I am instructed by Ms Kyle, and believe, that SUEZ disputes the accuracy of matters asserted by Mr Ford in ACR-1”.
However, whilst the matters referred to in the letter set out in paragraph 4 extracted above might be relevant to the matters set out in s.62(3) of the Act because they transverse some of the matters enumerated in that subsection, it does not mean that the letter or what was discussed at the meeting is relevant to the issues to be determined by the Court in these proceedings. The letter which is annexure ACR 1 to the solicitor’s affidavit is nothing more than a letter of demand. Whilst it does purport to record some parts of the conversation that took place on 10 December, 2019 on no view of it can it be said that those matters that are attributed to the representatives of the respondent at the meeting were admissions or concessions in respect of any part of the applicant’s claims.
The only reference in the pleadings to the meeting of 10 December, 2019 appears in paragraph 14 of the defence. That paragraph responds directly to paragraph 14 of the amended statement of claim. Paragraph 14 of the amended statement of claim pleads that the hours of work the applicant was required to perform in excess of 38 hours per week were not reasonable. It then provides particulars as to why the applicant says the hours were unreasonable. Paragraph 14 of the defence denies that allegation and pleads that to the extent that the respondent directed the applicant or required the applicant to work more than 38 hours a week the direction or request was reasonable having regard to a number of matters. One of the matters is said to be:
h. the fact that when the Applicant notified the respondent that he did not want to work in excess of 38 hours in a week, the respondent agreed to this; and
Particulars
1. Meeting of 10 December 2019 between the Applicant, James Ford, Robert Nimmo and Andrew Forbes at the respondent’s Nudgee Service Centre.
How an agreement that was made at a meeting on 10 December, 2019 (and so after the period in respect of which the applicant brings his claim) demonstrates that the hours worked by the applicant in excess of 38 hours per week were reasonable was not explained in submissions. Nor is it apparent on the face of the pleading. Subparagraph 14h. of the defence, whilst it purports to suggest that the meeting of 10 December, 2019 (and by inference the letter from the applicant’s counsel concerning that meeting) is relevant to the resolution of the issues between the parties, I cannot see that as so.
I have read the content of the relevant letter carefully. It is not asserted anywhere in that letter that the respondent’s representatives present at the relevant meeting made any admissions or concessions in respect of any matters that are critical to the claim and which arise on the pleadings. At best, the letter records the perceptions of the applicant and his advisers of the meeting. Evidence of the meeting and of the letter are not likely to be admissible at the hearing of these proceedings because they do not concern the factual matters that lie at the heart of the applicant’s claim. All the meeting was concerned with was allegations made after the relevant events had transpired.
The respondent’s application for the applicant’s counsel to be prohibited from acting any further in the proceedings is based on the notion that he is likely to be a witness in the proceeding or that it will not be in the interests of justice to have him cross-examine the respondent’s witnesses about the 10 December meeting given that he was present at that meeting. It is said that he will have his own knowledge about what occurred at that meeting. However, on the basis of the pleadings as they currently stand and on the basis of the argument as put to me, I have considerable difficulty seeing that evidence about the meeting and the relevant letter will be admissible at the final hearing of these proceedings. Whilst I accept that it is entirely undesirable for counsel to put him or herself in a position where they may be witnesses to material events and have to give evidence of those events in proceedings in which they are acting, that issue does not arise here. In my view, there is presently little or no prospect of the applicant’s counsel giving evidence or cross-examining the respondent’s witnesses about what occurred at the meeting, because what occurred at the meeting will not be relevant to an issue that arises on the pleadings.
It follows, that in the absence of a real prospect of counsel having to give evidence in the proceedings, a fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice, the interests of the protection of the integrity of the judicial process or the due administration of justice, including the appearance of justice, the applicant’s counsel should be prevented from acting further in the proceedings for applicant. Nor do I think that conclusion is affected by the fact that the applicant’s counsel is his son-in-law. There is no principle to which I was taken that suggested counsel’s position was compromised by that fact.
I am not satisfied that it is necessary for an order to be made preventing the applicant’s counsel from continuing to act for the applicant in these proceedings. That application will be dismissed.
TRANSFER
The respondent applies for a transfer of these proceedings to the Federal Court of Australia. The basis on which the application is made is set out in the respondent’s solicitor’s affidavit. It is asserted that this appears to be the first occasion on which a Court will have to squarely deal with the ‘reasonable hours’ provisions of s.62 of the Fair Work Act. Further it is argued that because s.62 is part of the National Employment Standards in Part 2.2 of the Fair Work Act and applies to all National System Employers and National System Employees in Australia a certain significance attaches to this case because these proceedings may result in “the first decision on a NES provision”. Accordingly, it is said that a question of general importance for the purpose of rule 8.02(4)(a) of the Federal Circuit Rules 2001 (Cth) arises in the proceedings and it would be “desirable for there to be a decision of the Federal Court”. That is, the determination of these proceedings will determine matters of principle and not simply the application of settled law to disputed facts.
However, whilst this might be a case in which the provisions of s.62 of the Fair Work Act arise squarely for determination, I do not consider the law to be unsettled. The law is as set out in s.62 of the Act. The task of the Court is to apply the law to the facts of the case as found. Guidance for that is provided by s.62(3) of the Act in that there is a list of matters that must be taken into account. Nothing to which I was taken would suggest that there was any ambiguity or uncertainty attending the way in which s.62 ought to be applied.
Nor is it the first case to consider s.62 and s.62(3): Gorval v Employsure Pty Ltd [2016] FCCA 231; CFMMEU v Hay Point Services Pty Ltd (2018) 282 IR 228 esp at [173] where the Full Court said:
What is ‘reasonable’ is necessarily assessed on a case-by-case basis, by reference to the employee’s circumstances and the employer’s business in accordance with the terms of s 62(3) of the Act: cf Metal Trades Employers Association v Boilermakers Society of Australia (1960) [sic] 4 FLR 333 at [33] (Dunphy J, with whom Morgan J agreed).
I am not persuaded that a transfer of the proceedings to the Federal Court is appropriate.
PARTICULARS
The final application before the Court is an application by the applicant for the respondent to deliver further and better particulars of certain aspects of its defence. In particular the applicant seeks that relief in respect of paragraphs 10(b), 13(a) and 13(e) (as a group), 13(f)(i), 14 and 14(g) of the defence.
By its defence, the respondent admits that from time to time the applicant was required to work in excess of 38 hours a week. In his amended statement of claim the applicant has set out the hours that he says he has worked over the period of his claim, including the additional hours which he says he worked. The defence suggests that the respondent asked the applicant to work some of those hours but does not identify which hours. It asserts that when the applicant was asked to work additional hours, it was always reasonable (see paragraphs 10(b), 13(a) and 13(e) of the defence).
The applicant seeks particulars of the occasions on which the respondent required the applicant to work additional hours, how many hours he was required to work and the circumstances upon which the respondent relies to assert that the hours the applicant was required to work were no more hours than were reasonable.
In my view, the applicant is entitled to some particulars of these paragraphs because they will serve to identify for the applicant those hours that he claims he has worked which are not in dispute, those which he claims he has worked which are in dispute and will serve to focus attention upon those hours which the applicant claims to have worked and the respondent contends were reasonable additional hours. The particulars can be furnished by the preparation of a schedule (akin to a Scott schedule) by replicating annexure A to the applicant’s amended statement of claim and adding some additional columns for the respondent’s response to each claim. The particulars sought by the applicant in his application in a case, however, go too far and I do not intend to order those.
Nor do I intend to order particulars in respect of paragraphs 13(f)(i), 14 and 14(g) as sought by the applicant. This is a case where the parties will give their evidence in chief on affidavit. Their cases will stand or fall on their evidence. Whilst it is right to say that the evidence that needs to be called by a party is only evidence which is relevant to an issue in dispute between the parties having regard to the pleadings, it is the issues in dispute having regard to the material facts set out in the pleadings rather than the particulars that is important.
If, of course, the applicant still feels disadvantaged once the evidence has been delivered by the respondents, he will be at liberty to bring a further application if he wishes to do so but in my view, the present application insofar as it seeks particulars beyond those I am prepared to order should await the delivery of the respondent’s evidence. It might also be the case that after the delivery of the respondent’s evidence it becomes apparent that whatever the position with the particulars might be, the respondent cannot prove the material facts that it is relying on to defend the applicant’s claim. In that case no amount of particulars will be of assistance.
DISPOSITION
I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 7 April, 2021. Associate:
Dated: 7 April 2021
0
1
0