Gliniecki v Hotait
[2018] FCCA 197
•8 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GLINIECKI v HOTAIT | [2018] FCCA 197 |
| Catchwords: INDUSTRIAL LAW – Employee claims employer required employee to repay part of the wages employer paid to employee – whether employee has proved on the balance of probabilities that he paid to the employer the money he claims he paid – whether the employee has proved on the balance of probabilities that he paid amounts to the employer in the circumstances in which he claims he paid the money – whether employer liable to reimburse employee for amounts employee paid to migration agent in relation to an application for a 457 visa – whether employer lent employee money to pay migration agent’s fees – whether employer lent employee money. |
| Legislation: Evidence Act 1995 (Cth), ss.59, 140 Fair Work Act 2009 (Cth), ss.14(1), 30B, 30D, 30L, 322, 325(1), 539(2), 536, 545, 566 Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) |
| Cases cited: Currie v Dempsey (1967) 69 SR (NSW) 116 Re Wakim; Ex parte McNally [1999] HCA 27 Rehsa Shipping Co SA v Edmunds [1985] 1 WLR 948 |
| Applicant: | PAWEL GLINIECKI |
| Respondent: | ALEXANDER HOTAIT |
| File Number: | SYG 2355 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 12 April 2017; 26 April 2017 |
| Date of Last Submission: | 26 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitors for the Respondent: | Mr I Gregory of Shaddicks Lawyers |
ORDERS
The application is dismissed.
The cross claim made in the response filed on 16 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2355 of 2016
| PAWEL GLINIECKI |
Applicant
And
| ALEXANDER HOTAIT |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Gliniecki, claims his former employer, the respondent, Mr Hotait, from time to time required Mr Gliniecki to repay to Mr Hotait amounts totalling $33,206.50 from wages he earned under his contract of employment. Mr Gliniecki also claims Mr Hotait is liable to reimburse Mr Gliniecki $4,335 Mr Gliniecki paid in connection with his applying for a 457 visa.
Mr Hotait denies he required Mr Gliniecki repay any part of his wages, or that Mr Gliniecki paid to Mr Hotait any of the amounts Mr Gliniecki claims he paid to him. Mr Hotait also denies he is liable to reimburse Mr Gliniecki any amount Mr Gliniecki paid for migration advice. Mr Hotait claims he provided to Mr Gliniecki $4,500 in cash to enable him to pay the expenses associated with his applying for a 457 visa. In addition, Mr Hotait claims he lent $15,000 to Mr Gliniecki that Mr Gliniecki has not repaid, that Mr Gliniecki in effect stole money from Mr Hotait’s business, and that Mr Gliniecki was paid wages for time he did not work. Mr Hotait, therefore, claims by way of cross-claim judgment for the amounts of the loan, the stolen money, and the wages Mr Hotait paid to Mr Gliniecki in relation to work he did not perform. Mr Hotait also claims an “accounting” for the $4.500 he alleges he gave to Mr Gliniecki, and damages for breach of a restraint of trade clause.
The claims each of Mr Gliniecki and Mr Hotait makes rely to a very large extent on conversations each alleges he had with the other. The accounts of those conversations conflict. That means that the resolution of the parties’ claims largely turns on findings I should make about whether conversations to the effect alleged by the parties took place.
Mr Gliniecki also claims damages for psychological injury. Mr Gliniecki raised this claim for the first time at the hearing. I decided I would consider whether Mr Gliniecki has an arguable case for such damage, my intention being that if I were to conclude Mr Gliniecki does not have an arguable case I will dismiss this part of his claim, but if he does I would give Mr Hotait an opportunity to put on evidence and have Mr Gliniecki’s claim tried at a later date.
I proceed as follows. First, I consider whether the Court has jurisdiction to determine the claims made by Mr Gliniecki and Mr Hotait. Second, I set out in chronological order the undisputed facts, the events or alleged events about which there is a conflict of evidence, and the conflicting evidence about those events. I there make findings of fact on matters that are relatively peripheral to the principal points of factual dispute. Third, I consider the claims Mr Gliniecki and Mr Hotait make. Finally, I consider whether Mr Gliniecki has an arguable claim for damages for psychological injury he alleges to have sustained.
Jurisdiction
In the application by which he commenced this proceeding Mr Gliniecki claims this Court has jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). Mr Gliniecki does not identify the provision or provisions of the FW Act he claims Mr Hotait contravened. Mr Gliniecki’s claim that he was required to pay money to Mr Hotait, however, is one that may reasonably be characterised as a claim that Mr Hotait contravened s.325(1) of the FW Act which, at the relevant time, provided as follows:[1]
An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.
[1] Section 325 was amended by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) which came into effect on 15 September 2017. In the remainder of my reasons, I will refer to the FW Act in the present tense although what is relevant is the FW Act as it applied at the time of the events in question in this proceeding.
Section 325 of the FW Act applies to an “employer”. For the purposes of Part 2.9 of the FW Act, being the Part that contains s.325, “employer” is defined in s.322 of the FW Act to mean a “national system employer”. That expression, in turn, is defined in other provisions of the FW Act. The principal provision is s.14(1) which provides:
A national system employer is:
(a)a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b)the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d)a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i)a flight crew officer; or
(ii)a maritime employee; or
(iii)a waterside worker; or
(e)a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f)a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
“National system employee” is also defined in s.30D(1) of the FW Act to include “any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual”. The expression “referring State” is defined in s.30B and s.30L of the FW Act. Relevant to the proceeding before me is s.30L(1) which provides:
A State is a referring state if the Parliament of the State has, after 1 July 2009 but on or before 1 January 2010, referred matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:
(a)if and to the extent that the matters are not otherwise included in the legislative powers of the Commonwealth (otherwise than by reference under paragraph 51(xxxvii) of the Constitution); and
(b)if and to the extent that the matters are included in the legislative powers of the Parliament of the State.
It is unnecessary to set out subsections 30L(3), (4), and (5) of the FW Act. They cover the referral by States of powers Parliaments of the States have, but which the Commonwealth Parliament does not have, to legislate in relation to employment; and s.30L of the FW Act contemplates that this would be done by State Parliaments referring to the Commonwealth Parliament the power to amend the FW Act so that it applies to matters relating to employment over which the State Parliaments have, but the Commonwealth Parliament does not have, legislative power. The Parliament of New South Wales has enacted the Industrial Relations (Commonwealth Powers) Act 2009 (NSW) which, subject to the limitations and exceptions provided by that Act, refers to the Commonwealth legislative powers the Parliament of New South Wales has in relation to employment. The State of New South Wales, therefore, is a referring State within the meaning of s.30D of the FW Act. Western Australia, however, is not a referring State. That is potentially important because although Mr Hotait lived in New South Wales when he entered into a contract of employment with Mr Gliniecki, Mr Hotait later moved to Western Australia while the contract of employment remained on foot.
That Mr Hotait initially employed Mr Gliniecki when Mr Hotait lived in Sydney but then, during the course of the employment relation between him and Mr Gliniecki, Mr Hotait moved to a non-referring State, raises the question of whether Mr Hotait was a “national system employer” of Mr Gliniecki. The only basis on which Mr Hotait could be considered to have been such an employer is s.30D of the FW Act; and that turns on whether Mr Hotait was at the relevant time “any person in” New South Wales so far as Mr Hotait employed Mr Gliniecki or usually employed an individual within the meaning of s.30D of the Act.
The answer to that question is not obvious. Section 30D of the FW Act suggests that, to be a national system employer, a person must be “in the referring State” for the duration of any employment relation or the period for which the person usually employs a person. That suggestion arises from the word “employs” which implies an ongoing relationship between employer and employee. On that construction, however, a person who lives in a State that is not a referring State but who employs a person in a referring State, would not be a “national system employer”. That would be an odd result.
Given the findings I make below I do not need to arrive at a concluded view about the proper construction of s.30D of the FW Act. In my opinion, however, the expression “person in the referring State” does not import any notion of domicile of the employer; that is, it does not require that the employer must have as his or her domicile the territory of the referring State. Rather, s.30D of the FW Act is directed to the location of acts or omissions of the employer; it requires that the acts or omissions of the employer that are said to constitute a contravention of the FW Act occur or do not occur in the territory of the referring State. Thus, s.30D of the FW Act would cover the acts or omissions of an employer who lives in a non-referring State if those acts or omissions can be said to have occurred or not occurred in the territory of the referring State. Such acts or omissions would occur in the referring State if the employer is in the territory of the referring State at the time he or she commits an act or omits to do an act. It may be that such an act may also occur in the territory of the referring State if the act consists of a conversation over a telephone or a communication by electronic means if the message can be said to have been received or acted on in the territory of the referring State.
At any rate, whether or not Mr Hotait is a national system employer is not a question that goes to the jurisdiction of this Court. An employer’s being a “national system employer” is an element of the application of s.325 of the FW Act to that employer; and this Court has jurisdiction under s.566 of the FW Act to entertain Mr Gliniecki’s claim that Mr Hotait has contravened s.325 of the FW Act; and, being a civil remedy provision,[2] this Court has jurisdiction to make orders under s.545 of the FW Act for a contravention of s.325 of the FW Act. Further, I am satisfied that the claim Mr Gliniecki makes based on s.325 of the FWA and the other claims Mr Gliniecki and Mr Hotait make “arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide””;[3] and, for that reason, constitute one matter over which this Court has jurisdiction.
[2] FW Act, s.539(2)
[3] Re Wakim; Ex parte McNally [1999] HCA 27 at [140], [141] (Gummow and Hayne JJ, Gleeson CJ and Gaudron J agreeing ([25] and [26]))
I am satisfied, therefore, the Court has jurisdiction to entertain all claims made by Mr Gliniecki and Mr Hotait.
Undisputed facts, evidence, and some findings
Mr Gliniecki is a Polish citizen. He arrived in Australia on 8 September 2009, apparently on a student visa. He studied English for twelve months in Sydney, completing his course in the middle of 2010.
After he completed his English studies Mr Gliniecki commenced a diploma in remedial massage therapy at a college in Sydney.[4]
[4] P Gliniecki affidavit 01.09.2016, [5]
In April 2011 Mr Gliniecki was engaged as a contractor by a massage and chiropractic clinic known as “East Sydney Massage and Chiropractic Clinic” (ESMCC).[5] That was the name of the business Mr Hotait conducted. Mr Hotait’s wife, Ms Amanda Hotait, also worked in the clinic. (Ms Amanda Hotait sometimes used the name “Amanda Horsley”.)
[5] P Gliniecki affidavit 01.09.2016, [6]; A Hotait affidavit 13.03.2017, [3]
On 14 October 2011 Mr Gliniecki and Mr Hotait signed a document titled “Massage Therapist Associateship: East Sydney Massage and Chiropractic Clinic” under which Mr Gliniecki agreed to work as a massage therapist.[6] Clause 8 of that agreement provided that Mr Gliniecki would “be remunerated on an agreed basis of 40% of the fee paid by the patient”, but that was to be reviewed in three months and would be “increased to 50% dependent on performance and ability”. The normal charge for a one-hour massage was $100.[7]
[6] A Hotait affidavit 13.03.2017, [4]; annexure AH1, page 15
[7] A Hotait affidavit 13.03.2017, [4]
On 7 May 2012 Mr Gliniecki completed his Diploma in Remedial Massage Therapy.[8] Before June 2012, when his student visa was due to expire, Mr Gliniecki had a conversation with Mr Hotait about whether Mr Hotait would be willing to sponsor Mr Gliniecki. According to Mr Gliniecki, Mr Hotait said words to the effect that he would sponsor Mr Gliniecki for a working visa so that he can stay in Australia.[9] Mr Hotait accepts that, commencing in about May 2012 he discussed with Mr Gliniecki ESMCC potentially sponsoring him for a 457 visa, and that he agreed in principle to sponsor Mr Gliniecki’s application for a 457 visa.[10] I find, therefore, that a conversation to the effect alleged by Mr Gliniecki occurred.
[8] P Gliniecki affidavit 01.09.2016, [8]
[9] P Gliniecki affidavit 01.09.2016, [9]
[10] A Hotait affidavit 13.03.2017, [6]
Mr Gliniecki consulted a migration agent, Ms Maryann Young, to obtain advice about applying for a 457 visa.[11] According to Mr Gliniecki Ms Young said that “Alex”, which I infer was intended to be a reference to Mr Hotait, had to pay the agent’s “fees + costs of the sponsorship and nomination”.[12] Mr Gliniecki annexed to his affidavit what he says is “a copy of the conversation between Maryann and myself”.[13] The document purported to record email communications between Ms Young and Mr Gliniecki. I ruled the document was inadmissible under s.59 of the Evidence Act 1995 (Cth) because Mr Gliniecki intended to rely on the document as evidence of the truth of the statements Ms Young made in the document.[14]
[11] P Gliniecki affidavit 01.09.2016, [10]
[12] P Gliniecki affidavit 01.09.2016, [10]
[13] P Gliniecki affidavit 01.09.2016, [10], annexure “A”
[14] The document was not admissible under s.69 of the Evidence Act 1995 (Cth) because it is apparent on the face of it that the document was created or obtained for the purpose of these proceedings.
There are in evidence four invoices issued by “Oasis Australia Migration Legal Services”, being the business name under which Ms Young conducted her migration agent’s business. One is dated 10 May 2012, and the other three are dated 1 June 2012.[15] All four are addressed to Mr Gliniecki. On the basis of these invoices I am satisfied that Mr Gliniecki engaged Ms Young to provide migration advice services, and that he was responsible for paying Ms Young’s fees.
[15] P Gliniecki affidavit 01.09.2016, [12], [13], annexure “B”.
According to Mr Gliniecki, he had a conversation with Mr Hotait in which Mr Hotait said that if Mr Gliniecki wanted to get his sponsorship visa and stay in Australia, he would have to pay everything.[16] Mr Hotait denies he had any such conversation with Mr Gliniecki.[17] Mr Hotait says that in or about May 2012 he borrowed from his mother $4,500 which he gave to Mr Gliniecki to pay to Ms Young.[18] Mr Gliniecki denies that occurred.[19]
[16] P Gliniecki affidavit 01.09.2016, [11]
[17] A Hotait affidavit 13.03.2017, [8]
[18] A Hotait affidavit 13.03.2017, [6(g)]
[19] P Gliniecki affidavit 29.03.2017, [5]
By 1 June 2012 Mr Gliniecki paid Ms Young’s fees totalling $4,335.[20] Mr Hotait says that he recalls that, after he gave him the $4,500 cash, Mr Gliniecki showed Mr Hotait an invoice. Mr Hotait further says that after Mr Gliniecki was provided with a “conditional contract of employment” Mr Gliniecki told Mr Hotait he had not paid Ms Young completely because he had put the money into his saving account and would pay her later.[21] Mr Gliniecki denies these assertions.[22]
[20] P Gliniecki affidavit 01.09.2016, [
[21] A Hotait affidavit 13.03.2017, [9]
[22] P Gliniecki affidavit 29.03.2017, [6]
On 23 June 2012 Mr Gliniecki was notified the 457 sponsorship had been approved. According to Mr Hotait, Mr Gliniecki had been provided with a written offer of employment for the purposes of its being submitted with his application for a 457 visa. After Mr Gliniecki provided to Mr Hotait evidence of the approval of the grant of a 457 visa, Mr Hotait and Mr Gliniecki agreed that Mr Gliniecki would remain employed as a contractor up to 30 June 2012, and would become an employee from 1 July 2012.[23]
[23] A Hotait affidavit 13.03.2017, [11]
The letter of offer of employment Mr Hotait sent to Mr Gliniecki is dated 4 June 2012, and is signed by Ms Amanda Hotait. Mr Gliniecki signed the letter on 31 May 2012.[24] By no later than 1 July 2012 Mr Gliniecki commenced as an employee of Mr Hotait under the terms contained in the letter of offer of employment (Employment Contract). Under the Employment Contract Mr Gliniecki agreed to work a minimum of 40 hours every week in return for which Mr Hotait agreed to pay Mr Gliniecki an annual salary of $54,500 (inclusive of superannuation).
[24] P Gliniecki affidavit 01.09.2016, [14], annexure C
According to Mr Gliniecki, on 31 October 2012 Mr Hotait approached him and said Mr Gliniecki had to pay back $2,000 to Mr Hotait because Mr Gliniecki had not seen enough clients to make up the wages Mr Hotait was paying Mr Gliniecki. Mr Hotait further said: “Unless you see enough clients to pay for your wages you will need to pay me back the shortfall”.[25] Mr Gliniecki says that, on that day, he withdrew $2,000 cash from his bank account and gave the cash to Mr Hotait.[26] Mr Gliniecki supports his evidence by annexing a copy of statements from his Commonwealth Bank “Complete Access” account (CBA account). The account shows a withdrawal of $2,000 on 31 October 2012. Mr Hotait denies ever asking Mr Gliniecki to repay any portion of the wages he paid Mr Gliniecki.[27]
[25] P Gliniecki affidavit 01.09.2016, [17]
[26] P Gliniecki affidavit 01.09.2016, [17]; annexure “E”
[27] A Hotait affidavit 13.03.2017, [18]
In cross-examination Mr Gliniecki was asked about the basis on which he paid the $2,000 and the other amounts he claimed he paid to Mr Hotait:[28]
Mr Gliniecki, you’ve stated in paragraphs 17, 19, 23, 26, 27, 28 and 30 of that affidavit about amounts that you paid back. What was the basis upon which you paid these amounts back?‑‑‑Because Alexander said to me he can give me a sponsorship but he doesn’t want to lose $1 on his business and he’s going to charge me for the tax, and if I not going to do 25 clients a week he’s going to charge me and treat me as a contractor. So I basically paid the tax from my own pocket, which was the cash I had to bring, and if I haven’t achieved 25 clients a week he charge me for – for the rest, for the missing. . . .
So in your correspondence and your relationship with Mr Hotait, that was something that was an amount you had to pay every month?‑‑‑No, it wasn’t every month. That was he – every time he was coming to Sydney he was telling me, “Okay, I’m in Sydney now so you have to pay me this much,” and he was giving me, like, little paper or he was writing by pen on his hand: “I would like that, what you owe me.” And I have to – and he said, “Oh, you have free days or you – I’m leaving Sydney tomorrow so just go to the bank now and bring me now,” or, you know, “I’m leaving on Monday morning so you have still a couple of days to do it, so no rush, but that’s what you have to bring me in cash before I leave and back to Perth.”
[28] T64.15-T64.30
Mr Gliniecki was then specifically asked about the $2,000 payment he claims he made. Mr Gliniecki initially responded as follows:[29]
I asked Alexander a couple of times already can he prove how he counts this amount of money and why I have to bring back, to he said, “If you’re not happy, we can call your immigration and cancel your sponsorship visa and you will have to come back to the country – back to your home, so it’s up to you.” And he never proved anything to me and he never said why and how much I have to – why exactly this much, or different times. He asked me every two months – every four months. Like first year, even, he asked me only twice. It was after a couple of months and all year through he didn’t ask me anything till I told him I’m going to Poland, so he charged me a big amount, seven and a half thousand dollars, a couple of weeks before my holiday because that was for all year.
[29] T64.40
When he was again asked about the $2,000 Mr Gliniecki said:[30]
[H]e never proved and he never said how much money I have to pay. He said he owe me 2000. That’s it.
[30] T65.5
When asked how he remembered the date on which he paid the $2,000 to Mr Hotait, Mr Gliniecki said because “I was putting everything in my . . . calendar”.[31]
[31] T65.30
According to Mr Gliniecki in early 2013 he arranged to visit Poland in July and August 2013. On 9 July 2013, three days before he was due to leave Australia, he received a telephone call from Mr Hotait, who by then had moved to Western Australia. Mr Hotait said words to the effect:[32]
You did not have enough clients to cover your wage and my 50%. You need 25 clients 25 x $100 = $2500 to cover your wage, superannuation, tax and my 50% which would be $1250.
[32] P Gliniecki affidavit 01.09.2016, [19]
After giving Mr Gliniecki details of a bank account, Mr Gliniecki says words to the following effect were spoken:[33]
Mr Hotait: You have to pay this before your holiday.
Mr Gliniecki: Why I have to pay you money and can you prove the exact amount?
Mr Hotait:Do you think I am rich? I have a family, kids and mortgage to pay. If you are not happy we can call the immigration and cancel your visa so you will have to come back to Poland.
[33] P Gliniecki affidavit 01.09.2016, [20]
Mr Gliniecki says he argued with Mr Hotait for around 18 minutes.[34] On 10 July Mr Gliniecki “took $7,500 cash” and “paid on their account”.[35] Mr Gliniecki annexes a statement from the CBA account.[36] The only debit entry in that account for 10 July 2013 is the following:
[34] P Gliniecki affidavit 01.09.2016, [20]
[35] P Gliniecki affidavit 01.09.2016, [21]
[36] P Gliniecki affidavit 01.09.2016, [21], annexure “G”
Wdl Branch L & C Sts Syd 7,600
Mr Gliniecki also says that on 9 July 2013 Mr Hotait said to him words to the effect:[37]
I cannot pay you during your holiday period because you will not do any treatments and will not make any money at the moment in this business.
[37] P Gliniecki affidavit 01.09.2016, [22]
Under cross-examination, Mr Gliniecki was asked about the calculation of the $7,500 he claimed he paid to Mr Hotait:[38]
The July 2013 would have equated to November 2012 through to June, which is about eight months. In your evidence you say that Alex phoned you and there was an amount of 1250 calculated, yet you allege you paid him back seven and a half thousand dollars?‑‑‑Because he treated me as a contractor and he asked me about an extra money for tax, so I – I – I have – I had to do 25 clients, which makes $50 each, which makes 1250. And at the beginning I was very busy so that’s why I got my sponsorship, and later on we got more therapists and more, so I started to be less busy and less busy, so he started to ask me more money, and that’s why there was seven and a half thousand dollars.
Okay. So there was seven and a half thousand dollars?‑‑‑If I could stay only one therapist in a clinic I would never pay any money and I would be ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ the busiest therapist in Sydney.
[38] T67.10-T67.
Mr Hotait denies he had conversations to the effect claimed by Mr Gliniecki, or that he demanded or received money from Mr Gliniecki. Mr Hotait says that in early 2013 he agreed to give Mr Gliniecki leave to visit Poland in July and August 2013, but this was conditional on Mr Gliniecki improving his attendance at the clinic. Mr Hotait says that, while Mr Gliniecki was in Poland, the direct debit for payment of Mr Gliniecki’s salary was cancelled in error and, when he returned from his holiday from Poland, Mr Gliniecki sent an email on 20 August 2013 (errors in original): [39]
Hi Amanda and Alex. how r u going? I am happy to be back. had enough this holiday. too long in polish environment just was getting crazy. but I am already here. just wanna ask you when is gonna be next payday. I thought it should be last Thursday because it was 4 weeks of holiday which is 2*fortnights. last payday was 4.07. next day 18.07 which is 1 fortnight and 1.08 is a second fortnight last Thursday 15.08 is already 3th fortnight. how have you decided to pay and when? and also when are you gonna send the money for holiday because must be a balance in salary as before for Christmas. cheers. hear you soon. Paul
[39] A Hotait affidavit 13.03.2017, [26], annexure “AH3”
Mr Hotait further says that “[d]ays before” Mr Gliniecki was due to depart for Poland he had a conversation with Mr Hotait “in a panic telling” Mr Hotait that Mr Gliniecki’s mother “was due to have an operation and that he needed to go back home with the money for the operation and asked” Mr Hotait “to lend him $15,000 as quickly as possible”.[40] According to Mr Hotait Mr Gliniecki “begged” Mr Hotait to lend the money “promising to pay back some of the money he got when he received his tax assessment after his return”.[41] Mr Hotait says he spoke to his mother, Ms Zena Hotait, borrowed $15,000 from her in cash, and he gave the cash to Mr Gliniecki.[42]
[40] A Hotait affidavit 13.03.2017, [22(f)]
[41] A Hotait affidavit 13.03.2017, [22(h)]
[42] A Hotait affidavit 13.03.2017, [22(j)]
Mr Hotait’s mother, Ms Zena Hotait, gave evidence. She did not do so in an affidavit. She was called to give evidence. Mr Gregory, who appeared for Mr Hotait, gave me the following explanation for Ms Zena Hotait’s not having given an affidavit:[43]
[43] T29.40
MR GREGORY: . . . Your Honour, we also would like to call Mrs Zena Hotait, who is Mr Alex Hotait’s mother. She is an aged lady. We would request that she gave evidence for about five minutes. It relates to the amounts that she gave her son.
HIS HONOUR: Well, why wasn’t that put on affidavit, Mr Gregory?
MR GREGORY: Because, your Honour, Mrs Zena Hotait, when I could contact her, had difficulty understanding me and dealing with me. She’s in her late 60s/early 70s. I was not able to, from West Australia, do what I would normally do . . .
I permitted Mr Hotait to call Ms Zena Hotait on the basis that Mr Gliniecki could cross-examine her on another day if he felt he would be unable to cross-examine her on the day of the hearing. Mr Gliniecki indicated that he was prepared to cross-examine Ms Zena Hotait. Before I set out her evidence, I should record that I am not satisfied that an adequate explanation was given for not having Ms Zena Hotait put on her evidence by way of affidavit. Further, I have some doubt about the explanation Mr Gregory gave me as to why Ms Zena Hotait did not give her evidence in an affidavit, and that arises from the following evidence Ms Zena Hotait gave in answer to questions I asked:[44]
[44] T56.5
When were you first asked whether you would give evidence in court about what you’re giving evidence today?‑‑‑Today I hear it, you know.
When were you asked to give evidence? Just today?‑‑‑Yes.
Are you sure?‑‑‑Yes.
Did you get a call from a solicitor before today?‑‑‑I didn’t ‑ ‑ ‑
Don’t look at them. Don’t look at them. You look at me?‑‑‑Actually, today my son, he told me. I didn’t know I have to give evidence, and he say, “Mum, can you come into the court?” And I say, “Okay.” I should look after the children. I have a lot of stress, you know ‑ ‑ ‑
All right?‑‑‑ ‑ ‑ ‑ with his kids, you know, so ‑ ‑ ‑
Before today, did anyone suggest to you or ask you to give evidence in a court case?‑‑‑No.
All right?‑‑‑Maybe by phone or something. I don’t remember.
You don’t remember. All right?‑‑‑I don’t remember exactly. Maybe by phone, maybe.
In any event, Ms Zena Hotait gave the following evidence in chief:[45]
[45] T52.30
In 2012 and ’13, do you remember giving your son any money?‑‑‑Yes.
Could you tell the court what money you gave to your son in 2012 and ’13?‑‑‑I gave him twice, two times. One times he took from me four thousand and half and the second time he asked me for 15,000 because he had problem in the – at the – his work. Something going on in his business.
How did you give him that money?‑‑‑I gave him cash.
Where did that cash come from?‑‑‑Well, that’s from my saving and my children, they used to help me and I put them in aside for the emergency and for personal thing.
Ms Zena Hotait gave other evidence. She said she lives “in a government house”;[46] she is 61 years of age;[47] she has been ill for some time receiving treatment for chronic pain;[48] and she receives regular payments into her bank account.[49] Ms Zena Hotait initially said she regularly withdrew cash, she used part of that cash for expenses, and she set aside what she did not spend, and in that way accumulated $20,000 in cash which she kept in a box in her house.[50] Under cross-examination, however, in answer to the question of how often she went to the bank to withdraw money, Ms Zena Hotait said:
Once a week; maybe once a month; it’s up to me. Depend on how much money I have. If I - I have short money, then I go. But always I have money in – in- in my house.
[46] T57.20
[47] T53.20
[48] T57.5
[49] T55.25
[50] T54.30; T55.10
According to Mr Gliniecki, on 29 August 2013, being one week after he returned from Poland, Mr Hotait transmitted $7,044 into Mr Gliniecki’s bank account, but on the same day asked Mr Gliniecki to bring $6,000 in cash to pay back Mr Hotait. Mr Gliniecki says he withdrew $6,000 cash.[51] Mr Hotait denies he demanded money from Mr Gliniecki or that Mr Gliniecki paid any money to Mr Hotait.[52]
[51] P Gliniecki affidavit 01.09.2016, [23]; annexure “H”
[52] A Hotait affidavit 13.03.2017, [27]
According to Mr Gliniecki, during his second year of working for ESMCC Mr Hotait started to ask him “about the money more often”.[53] Mr Hotait said words to the effect:[54]
[53] P Gliniecki affidavit 01.09.2016, [25]
[54] P Gliniecki affidavit 01.09.2016, [25]
If we charge you more often you will pay smaller amounts so will be easier for you to adjust it.
Mr Gliniecki says that on 25 November 2013 Mr Hotait asked him “about $3,240”. On 28 November 2013 Mr Gliniecki paid to Mr Hotait this amount in cash. Mr Gliniecki says he obtained this cash by making five cash withdrawals of $500 and one cash withdrawal of $1,000. Mr Gliniecki annexed to his affidavit two bank statements to support this evidence. One is from the CBA account. That records two withdrawals of $500 on 25 November 2013 and one withdrawal of $500 on 26 November 2013. The other bank statement is from a “Complete Freedom” account Mr Gliniecki held with St George Bank. That records two withdrawals of $500 from an automatic teller machine (ATM) on 26 November 20173, and two withdrawals of $500 from an ATM on 27 November 2013.[55] Mr Hotait denies demanding or receiving this money.[56]
[55] P Gliniecki affidavit 01.09.2016, [26], annexure “I”
[56] A Hotait affidavit 13.03.2017, [39]
Mr Gliniecki was cross-examined about how the $3,240 was calculated:[57]
MR GREGORY: . . . . Can I take you to your first affidavit, paragraph 26. This is an amount of $3240, supported by your bank statement letter I. You allege you repaid $3240. What was the basis of that calculation?
THE WITNESS: You have to ask Alexander because that was his amount he told me. So any amount he told me I had to bring.
MR GREGORY: How did you not calculate this if you knew it was being calculated? How did you not check this with Alex?
THE WITNESS: Because he didn’t want to tell me how he counts. I ask him a few times. He didn’t want to explain. If he did I would know how much exactly, but I didn’t know how much tax ..... because no payslips. I don’t know how much he paid tax every fortnight and why I have to pay that. So I couldn’t calculate it.
[57] T72.10-T72.20
On 18 January 2014 Mr Gliniecki says he “was asked to pay $2,712.50 in ANZ bank on Oxford Street”. On that day he withdrew from the CBA account two lots of cash of $500, and on 20 January 2014 two further lots of cash of $500. Mr Gliniecki says he “paid Alex $2,712.50 in ANZ Bank on Oxford Street”.[58] In support of this assertion Mr Gliniecki annexed to his affidavit statements from the CBA account that record two ATM withdrawals of $500 on 18 January 2014 and two ATM withdrawals of $500 on 20 January 2014.[59] Mr Gliniecki also annexed to his affidavit a deposit slip recording the payment of $2,712.50 to an account held with ANZ Bank (ANZ account). Ms Amanda Hotait, gave evidence about the ANZ account and the circumstances in which the deposit was made into that account.
[58] P Gliniecki affidavit 01.09.2016, [27]; annexure “J”
[59] P Gliniecki affidavit 01.09.2016, [27]; annexure “J”
Mr Gliniecki was cross-examined about how the $2,712.50 was calculated. Mr Gliniecki said: “You have to speak to Alexander because that’s what I’ve been told”.[60] It was put to Mr Gliniecki that he claimed to have withdrawn only $2,000 from the CBA account and was asked from where he obtained the remaining $712.50. Mr Gliniecki said “From my wallet”.[61]
[60] T76.10
[61] T77.25
According to Ms Amanda Hotait, the ANZ account is her personal account. Ms Amanda Hotait says that at around 20 January 2014 Mr Gliniecki telephoned her (she lived in Western Australia) and said: “We’ve got all this cash money that’s there. It needs to be banked”. Ms Amanda Hotait said the receptionist normally banked money, but the receptionist was not there. Ms Amanda Hotait responded to Mr Gliniecki’s request by saying “we have a deposit book at the front desk”. Mr Gliniecki could not find the deposit book. When he informed Ms Amanda Hotait of that fact, she gave Mr Gliniecki the account number of the ANZ Bank because “that account number is the only one I know off the top of my head . . . because it was my first account I had when I worked at the ANZ Bank”.[62] Mr Gliniecki denies he had a conversation to the effect alleged by Ms Hotait.
[62] T34.15
According to Mr Gliniecki he provided cash to Mr Hotait on three further occasions: $3,978 on 6 May 2014,[63] $4,071 on 27 July 2014,[64] and $3,705 on 27 October 2014.[65] Mr Gliniecki says that after he made the payment of 27 July 2014 Mr Hotait said to him that he wanted Mr Gliniecki to work seven days a week “to achieve 25 clients a week so you can get busier and you will not have to pay any money back”.[66] Mr Hotait denies he had a conversation to that effect, or that he demanded or received the money Mr Gliniecki claims he paid to Mr Hotait.[67]
[63] P Gliniecki affidavit 01.09.2016, [28]; annexure “K”
[64] P Gliniecki affidavit 01.09.2016, [29]
[65] P Gliniecki affidavit 01.09.2016, [30]; annexure “L’
[66] P Gliniecki affidavit 01.09.2016, [29]
[67] A Hotait affidavit 13.03.2017, [41], [42], [43]
Mr Gliniecki was cross-examined about these amounts he claimed to have paid to Mr Hotait. He was asked how he remembered he paid $3,978 rather than, say, $3,999.[68]
[68] T78.15-T78.45
MR GREGORY: How do you remember this amount actually being 3978 not 3999?
THE WITNESS: Again, you have to ask Alexander.
MR GREGORY: But you have ‑ ‑ ‑
THE WITNESS: I didn’t manage this amount because that’s – I paid what I’ve been told to.
MR GREGORY: You have placed these amounts in your claim, but there is no document that you have referred to that shows where you got these figures from.
THE WITNESS: From Alexander – on his hand, written by pen.
MR GREGORY: So you remembered, two and a half years ago, what Alexander wrote on his hand and showed you for a very short period of time?
THE WITNESS: Yes. Because I put everything on a piece of paper.
MR GREGORY: Where is that piece of paper?
THE WITNESS: It’s – it has moved to my affidavit.
MR GREGORY: Where in your affidavit?
THE WITNESS: .....
MR GREGORY: Yes. But where is that piece of paper that you have worked from?
THE WITNESS: There’s not. I was putting on my piece of paper and I moved ..... in a computer, which is clear.
MR GREGORY: Why have you not referred in your affidavit to that piece of paper and the records you kept?
In relation to the payment of $3,978, Mr Gliniecki accepted that the CBA account recorded withdrawals of $3,500, but he said he obtained the balance of $478 “[f]rom my pocket”.[69] Mr Gliniecki also accepted he provided no supporting document that shows a withdrawal of $4,071.[70] And he accepted that, in relation to the payment of $3,500 he provided documents that showed withdrawals totalling $3,000 but stated that he paid the balance of $705 “from my pocket because I always have about $1000 at home – because …. Pay rent by cash”.[71]
[69] T78.20
[70] T79.35
[71] T80.20
In the meantime, on 27 September 2014 Mr Gliniecki sent an email to Ms Amanda Hotait.[72] It is apparent from that email that Mr Gliniecki had by then applied for permanent residency. In his email Mr Gliniecki set out an email he had recently received from his migration agent about the status of his application for permanent residency. Mr Gliniecki then set out in a little detail his not being well and that he intended to visit Poland. He said he has “not had a good holiday for the last 4 years”; that he went to Poland last year for four weeks “but it was a disaster”; that his motivation in life had changed a lot; that he “[c]an not work without ABN like that” and that “I feel like I work for free-bloody prisoner”; and that he wanted to spend more time with his mother. Mr Gliniecki concluded his email as follows (errors in original):
So I wanna go away in mid November and come back when I receive an email form my solicitor about my PR. I will be ready for action with fixed body, motivation and ABN. I spoke to another solicitor about it and he said this is not a problem because I am allowed to take unpaid time off work. My last day is 8th of November for a couple of months. Sorry for the surprise and only 6 weeks notice but as the moment nothing is more important than my health and all life is about the health. We understand this the most because we work in a health industry. Thank you for understanding me and appreciate your decision.
[72] A Hotait affidavit 13.03.2017, [43(i)]; annexure “AH6”
By 23 October 2014 Mr Gliniecki was informed there was a difficulty with his application for permanent residence. The difficulty was that he failed to disclose in his application certain information. On that day Mr Hotait received an email addressed to “Mr Horsley” from Mr Gliniecki’s barrister enquiring whether Mr Hotait would be willing to provide a letter of support in relation to his visa application.[73] The email from the barrister set out the information such a letter should contain. It appears that on 31 October 2014 Ms Amanda Hotait provided a letter to Mr Gliniecki’s barrister.[74] In that letter Ms Amanda Hotait said Mr Gliniecki “has proven to be an asset to our business with talents you can’t train people to do”.[75]
[73] A Hotait affidavit 13.03.2017, [42(k)]; annexure “AH7”
[74] A Hotait affidavit 13.03.2017, [42(k)]; annexure “AH7” page 34
[75] P Gliniecki affidavit 29.03.2017, annexure “E”
According to Mr Gliniecki, on 17 November 2014 Mr Hotait had a conversation with him about Mr Gliniecki’s permanent residency and said words to the effect:[76]
I will give you 2 more weeks and if you do not get your PR I do not want you to be in the clinic anymore. I am going to start charging you an extra in small amounts for the superannuation which has not been paid back to ESMCC for 2.5 years.
[76] P Gliniecki affidavit 01.09.2016, [31]
Mr Hotait denies the conversation.[77] Mr Hotait admits Mr Gliniecki “told us about his Visa being stopped”, and says that from on or about 7 November 2014 Mr Gliniecki stopped turning up at work, even though he was rostered to carry out work until 16 November 2014.[78]
[77] A Hotait affidavit 13.03.2017, [44(a)]
[78] A Hotait affidavit 13.03.2017, [44(b)]
According to Mr Gliniecki he received an email from Ms Young on 18 November 2014 informing him that his application for permanent residence was refused.[79] There then followed a series of text messages between Mr Gliniecki and Mr Hotait. Some of these text messages are as follows (errors in original):
[79] P Gliniecki affidavit 01.09.2016, [32]
Date and time
From Mr Gliniecki
From Mr Hotait
20.11.2014 2:50 pm
I’m flying out this week I need to see you!
My life is over Alex
Don’t b stupid, so much too look forward too. just work as a contractor good money and study. Listen or loose. Study visa .. Or go New Zealand awesome place to live
Can’t stay in Australia. Got 21 days to leave. No energy to even breath
We need to talk, ok u can’t just shut yourself from us. After all we are still mates . . . .
22 November 1:00 pm
We didn’t talk because I am speechless at the moment. What is your advice for my life if you don’t mind asking you. Go through tribunal?
Paul as a business we can no longer support u as employee arrangement. Happy to have u on board as contractor. I don’t think going through tribunal will help you. As we can no longer sponsor you as employee. It has been very stressful supporting you through your application for PR. This process has effected your ability to perform as a therapist and staying focused in building your repeat business at our clinic. When you are focused your great. But when your stressed this impacts your performance at the clinic as well as bringing the morale of the clinic down. i have tried to contact you the last week and you did not respond. You choose not to come to work as you please without contacting Amanda or myself. It was made very clear, that any time off needs to be run by Amanda and my self. This repeated behaviour has cost the business financial losses to the business. My advice to you would be to focus on moving forward. . . .
Mr Gliniecki says he made a written complaint to the office of the Fair Work Ombudsman (FWO) about “no payslips, unpaid superannuation, last payday and cash I was forced to bring Alex”.[80] Mr Gliniecki has annexed to his affidavit what appears to be a form prescribed by the FWO titled “Workplace Complaint Form”. It is dated 20 January 2015. That document reflects the complaint Mr Gliniecki says he made to the FWO. It concludes as follows (errors in original):
All cash I brought him was about $40000 + $11000 superannuation = $50000. He did not pay my holidays, sick leave, superannuation, last wage, taking cash of me, threats about cancelling my visa, physical contact, also have not received payslips from his for last 2.5 years. I have got my calendar with exact dates I had to bring him cash, one receipt from the bank when he asked me to send the money to him, there is another receipt for $7500 I mentioned before but I have lost it – but it is in a bank because I asked already. . . . . On Thursday 20/11/2014 should be my payday which I have not received. Last 4 months I have worked 7 days a week because he asked me for that. I did but I did not get any extra time for doing Sundays or extra hours.
[80] P Gliniecki affidavit 01.09.2016, [34], annexure “N”
Mr Gliniecki also annexed to his affidavit three other documents from the FWO. One is a letter dated 12 May 2015 to Mr Gliniecki titled “Completion of the investigation into your complaint”.[81] It refers to a complaint lodged on 4 February 2015 and refers to the FWO having conducted investigations “in response to allegations relating to non-payment for time worked and non-issue of payslip”. The letter notes Mr Gliniecki “was employed under a 457 visa sponsorship on a full time basis by the Employer from 26 February 2012 until 18 November 2014”. The letter then sets out the FWO’s view of the complaints as follows:
A contravention of section 536 of the FW Act, which imposes obligations on employers in relation to pay slips . . . . The investigation determined that pay slips were not issued to you within one working day of he payment of wages. The Employer has advised pay slips will be provided to you by 20 May 2015. . . .
The non-payment of hours worked in the last fortnight of the contravention period was calculated by the Employer to be $432.72 gross. On the 5 May 2015 the FWO received evidence that this non-payment of hours was rectified.
The FWO now considers this matter to be rectified and will be taking no further action in relation to your complaint.
[81] P Gliniecki affidavit 01.09.2016, [36], annexure “P”
The second document from the FWO Mr Gliniecki annexes to his affidavit is an email from the FWO to Mr Gliniecki sent on “May 31 at 1:33PM”.[82] The email does not record the year it was sent. It refers to a telephone conversation with Mr Gliniecki and refers “to your request for assistance lodged with the” FWO “regarding your employment with A Horsley and A Hotait”. The email notes that “this matter has been listed for a telephone mediation on Friday 17 June 2016 at 11.15 am (NSW time)”. From this it is available to me to find, and I do find the email was sent on 31 May 2016.
[82] P Gliniecki affidavit 01.09.2016, [38], annexure “Q”
The third document Mr Gliniecki annexed to his affidavit is an email sent on “Jun 7 at 9:54 AM” from the FWO to Mr Gliniecki.[83] It stated:
Mediation was scheduled for Friday 17 June 2016 but could not take place due to the business not participating in voluntary mediation, as a result the issues raised in your request for assistance remain unresolved.
[83] P Gliniecki affidavit 01.09.2016, [39], annexure “R”
In his closing submissions, Mr Gregory, who appeared for Mr Hotait, submitted that Mr Gliniecki made two complaints to the FWO, and that Mr Gliniecki did not, in his first complaint, complain that Mr Hotait required cash payments from Mr Gliniecki, but that Mr Gliniecki made that complaint in the second complaint. I do not accept that submission. It is clear from the form of complaint to the FWO that Mr Gliniecki did claim Mr Hotait required him to make cash payments.
Approach to resolving competing claims
As I noted at the beginning of these reasons, the resolution of the claims Mr Gliniecki and Mr Hotait make against each other depends on whether I should accept the evidence each has given about the conversations each says he had or did not have with the other. It would be appropriate if at the outset I set out the principles that I consider should guide me in determining the competing claims.
First there is the onus of proof. The onus is on Mr Gliniecki to prove his claims. That is, the onus is on Mr Gliniecki to prove he paid all or some of the cash amounts he claims he paid to Mr Hotait, and that he did so for the reasons he claims he did. The onus also lies on Mr Gliniecki to prove that Mr Hotait agreed or was otherwise liable to reimburse him for the money Mr Gliniecki paid to Ms Young in relation to his application for a 457 visa. As I have already noted, however, Mr Hotait says he paid $4,500 to Mr Gliniecki to enable him to pay the expenses of applying for a 457 visa. Having asserted he paid to Mr Gliniecki $4,500 as an answer to Mr Gliniecki’s claim for reimbursement of the money he paid to Ms Young, the onus lies on Mr Hotait to prove that he did provide to Mr Gliniecki the $4,500.[84] Mr Hotait also bears the onus of proving he lent the $15,000 to Mr Gliniecki, that Mr Gliniecki stole money from his business, and that Mr Gliniecki did not perform work for which he was paid.
[84] “[T]he burden of proof in the sense of establishing a case, lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g., if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but one which, if established, will constitute a good defence, that is, an “avoidance” of the claim which, prima facie, the plaintiff has.” - Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 (Walsh JA)
Second, there is the standard of proof. The relevant rule is stated in s.140 of the Evidence Act 1995 (Cth):
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
In making findings on contested questions of fact, a court often and perhaps usually makes a finding either that the asserted fact exists or does not exist. A court, however, is not bound to do so. This point was made by Lord Brandon of Oakbrook in Rehsa Shipping Co SA v Edmunds:[85]
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
[85] [1985] 1 WLR 948 at pages 955–6
Third, there is the approach that should be taken when assessing the credibility of witnesses. I first repeat what I said in SZUVE v Minister for Immigration & Anor (references omitted):[86]
Whether or not any given testimony will inspire belief in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact-finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”. This means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”. Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”. It has also been said that credible evidence is “that which meets the test of plausibility”.
[86] [2016] FCCA 1942 at [23]
It is also useful to bear in mind the following observations of McClelland CJ in Watson v Foxman & Ors:[87]
[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
[87] (1995) 49 NSWLR 315 at page 319
Finally, there is the approach to fact-finding described by Justice MacKenna.[88]
This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant’s favour. The plaintiff has failed to discharge the burden of proof.
[88] MacKenna, B., “Discretion” (1974) 9 (new series) The Irish Jurist, 1 at page 10
Did Mr Gliniecki pay or transfer money to Mr Hotait?
I begin with facts that are not in dispute, the findings I have already made, and contemporaneous documents. First, there is the undisputed fact that Mr Gliniecki commenced employment with Mr Hotait on 1 July 2012 under the terms of the Contract of Employment, and continued to be employed until about 18 November 2014.
Second, there is the email Mr Gliniecki sent to Mr Hotait and Ms Amanda Hotait on 20 August 2013, the contents of which I have set out in paragraph 36 of these reasons. In his email Mr Gliniecki enquired when Mr Hotait was going to pay Mr Gliniecki’s wages for the fortnights ending 4 July, 18 July, 1 August, and 15 August 2013 and, when Mr Hotait was going “to send the money for holiday”. Had Mr Hotait said he could not pay Mr Gliniecki during his holiday, it is reasonable to expect that Mr Gliniecki would have referred to that conversation in his email of 20 August 2013. That he did not do so, but instead enquired about when Mr Hotait would pay Mr Gliniecki’s wages for the time he was on holidays, is a basis for doubting Mr Gliniecki’s evidence of the conversation he alleges occurred on 9 July 2013.
Third, there is the email Mr Gliniecki sent to Ms Amanda Hotait on 27 September 2014 to which I have referred in paragraph 52 of these reasons. In that email Mr Gliniecki referred to his holiday in Poland being a disaster, and to his feeling like he worked for free. Mr Gliniecki did not in that email attribute his predicament to anything Mr Hotait did or did not do. He does not, for example, claim that his holiday in Poland was a disaster because immediately before he went on that holiday Mr Hotait compelled him to pay cash to Mr Hotait or because Mr Hotait did not pay Mr Gliniecki his wages. Nor does he claim that any of the other hardships Mr Gliniecki describes in the email were due to Mr Hotait requiring Mr Gliniecki to make payments to him. Had Mr Hotait so required Mr Gliniecki, it is reasonable to expect that Mr Gliniecki would have appreciated that at least part of the hardship he described in his email was due to the payments he was required to make, and that he would have said something about that in his email. Instead, Mr Gliniecki concluded his email by expressing thanks for “understanding me”.
Fourth, there are the text messages between Mr Gliniecki and Mr Hotait that I have set out in paragraph 56 of these reasons. By this stage Mr Gliniecki had been informed that his application for permanent residence had been rejected, he believed he would be required to leave Australia, and he expressed his disappointment about this outcome to Mr Hotait. Mr Hotait told him he could no longer support Mr Gliniecki as an employee, although he would be happy to have Mr Gliniecki continue as a contractor. Mr Gliniecki, however, said nothing about Mr Hotait having required him to pay money or as otherwise having ill-treated him. Nor did Mr Gliniecki take issue with Mr Hotait’s statement that, although he would take on Mr Gliniecki as a contractor, he would not support him as an employee. Had Mr Hotait treated Mr Gliniecki as a de facto contractor which, in effect, is how Mr Gliniecki alleged Mr Hotait treated Mr Gliniecki, it is reasonable to expect that Mr Gliniecki would have taken issue with Mr Hotait’s statement that he could not support Mr Gliniecki as an employee by stating that Mr Hotait had not in fact supported him as an employee, but had instead treated him as a subcontractor all along.
The fifth, and final set of objective evidence is the bank account statements on which Mr Gliniecki relies. That evidence by itself, however, is incapable of proving that Mr Gliniecki paid to Mr Hotait the amounts he claimed he paid. Most of the withdrawals do not match the amounts Mr Gliniecki says he paid to Mr Hotait. This is illustrated by the following table:
Date money withdrawn from bank accounts
Amount withdrawn from bank accounts
Date of alleged payment to Mr Hotait
Amount allegedly paid to Mr Hotait
31.10.2012
$2,000
31.10.2012
$2,000
10.07.2013
$7,600
10.07.2013
$7,500
29.08.2013
$6,000
29.08.2013
$6,000
25.11.2013
$500
25.11.2013
$500
26.11.2013
$500
26.11.2013
$500
26.11.2013
$500
26.11.2013
$500 ($3,000)
26.11.2013
$3,240
18.01.2014
$500
18.01.2014
$500
20.01.2014
$500
20.01.2014
$500 ($2,000)
20.01.2014
$2,712.50
03.05.2014
$500
05.05.2014
$500
06.05.2014
$2,500 ($3,500)
06.05.2014
$3,978
27.10.2014
$3,000
27.10.2014
$3,705
Thus, whether or not Mr Gliniecki paid the amounts he claims to have paid and, if so, whether he paid the amounts in the circumstances he claims he did, are questions that turn entirely on whether I accept his evidence. And here there are a number of matters to note about his evidence.
First, in his affidavit Mr Gliniecki refers to conversations with Mr Hotait in which he says Mr Hotait told him the amounts he was required to pay. In evidence given in cross-examination Mr Gliniecki initially said Mr Hotait gave Mr Gliniecki a “little paper or he was writing by pen on his hand”.[89] Mr Gliniecki later said that Mr Hotait informed him of the amounts Mr Gliniecki was required to pay by showing him figures Mr Hotait had written on his hand.[90] Mr Gliniecki also said that Mr Gliniecki “put everything on a piece of paper” which “has moved to my affidavit”.[91] Mr Gliniecki, however, did not adduce any document that had been given to him by Mr Hotait recording the amount of money Mr Gliniecki had to pay; nor did Mr Gliniecki adduce the document or documents on which he claims he recorded the amounts Mr Hotait told him he was required to pay and which Mr Gliniecki said he had “moved to my affidavit”. When Mr Gliniecki was asked in cross-examination why he did not in his affidavit refer to the paper he had “moved to my affidavit” or the record he kept Mr Gliniecki said: “I didn’t know I’m going to the court. I didn’t think about it”.[92]
[89] T64.5
[90] T64.30; T78.25
[91] T78.30
[92] T79.5
I do not accept Mr Gliniecki’s evidence that Mr Hotait provided him paper on which Mr Hotait had written the amounts Mr Gliniecki was required to pay; nor do I accept Mr Gliniecki’s evidence that he “put everything on a piece of paper” which “has moved to my affidavit”. If such documents existed Mr Gliniecki either would have annexed the documents to his affidavit (as he annexed other documents which he considered to be relevant) or he would otherwise have said something of their existence and what had become of them if he no longer possessed the documents. I do not accept the explanation Mr Gliniecki gave for not producing such documents that he did not know he was going to court, and that he did not think about it. Mr Gliniecki prepared two affidavits for the purposes of the hearing in this proceeding to which he attached or referred to documents; and he arranged for the issue of a subpoena to Mr Hotait. I find Mr Gliniecki did these things because he was aware he was required to provide evidence to prove his case.
Given these findings, and excepting the payment of $2,712.50 made on 20 January 2014 (which I discuss below), what is left are bare assertions by Mr Gliniecki of the amounts he claims he paid to Mr Hotait unsupported by any document or any evidence that explains how Mr Gliniecki remembered the amounts he claims he paid to Mr Hotait and the dates on which he claims he paid the amounts. In those circumstances I would not be prepared to accept that Mr Gliniecki’s evidence of the amounts he paid to Mr Hotait is the product of any actual recollection on his part.
The second matter to note about Mr Gliniecki’s evidence arises from the following circumstance: the bank accounts on which Mr Gliniecki relies record withdrawals in addition to those Mr Gliniecki identifies as withdrawals he made to obtain the cash he paid to Mr Hotait; yet Mr Gliniecki does not disclose the basis on which he identifies the withdrawals which he claims he made for the purpose of paying cash to Mr Hotait. The statement from the CBA Account for the period 13 August to 12 November 2013, for example, records one withdrawal of $1,000, four withdrawals of $500, and one withdrawal of $3,000;[93] yet Mr Gliniecki, for reasons not disclosed by him, claims that the $3,000 withdrawal is the one he made for the purpose of making a cash payment to Mr Hotait. As a further example, the CBA Account statement for the period 13 February 2014 to 12 May 2014 records fourteen withdrawals of $500 and one for $2,500, yet Mr Gliniecki, again for reasons he does not disclose, identifies only the $2,500 withdrawal and two of the $500 withdrawals as withdrawals he made to pay cash to Mr Hotait. The absence of any evidence that explains the basis on which Mr Gliniecki claims that one rather than another of the withdrawals recorded in the bank accounts is the source of the cash he paid to Mr Gliniecki affords an additional reason for doubting that Mr Gliniecki’s evidence of the amounts he paid to Mr Hotait is the product of any actual recollection.
[93] P Gliniecki affidavit 01.09.2016, [30], annexure “L”
The third matter or set of matters to note arises from Mr Gliniecki’s evidence that I have set out in paragraphs 27 and 31 of these reasons. In his evidence that I have set out in paragraph 27 of these reasons Mr Gliniecki said that before Mr Hotait agreed to sponsor him Mr Hotait said that he expected Mr Gliniecki to attend to 25 clients every week to cover the costs of Mr Gliniecki’s wages, including tax and superannuation. In the evidence I have set out in paragraph 31 of these reasons Mr Gliniecki says Mr Hotait told him Mr Gliniecki needed to attend to 25 clients every week to cover Mr Gliniecki’s wages (including tax and superannuation) and Mr Hotait’s 50% of the fee each client paid. If it were true Mr Hotait said to Mr Gliniecki words to this effect and, therefore, was the basis on which Mr Gliniecki believed Mr Hotait calculated the amounts he demanded Mr Gliniecki to pay him, it is reasonable to expect that Mr Gliniecki would have kept a record of the number of clients he saw each week so that he could be in a position to assess the accuracy of the amounts Mr Hotait required he should pay to him. Mr Gliniecki, however, does not say he kept any such record. That also is a reason for doubting Mr Gliniecki’s evidence.
It is true that, in cross-examination, Mr Gliniecki said that he asked Mr Hotait a “few times” about how he calculated the amounts Mr Hotait demanded; and that Mr Gliniecki further said he could not himself check the amounts claimed by Mr Hotait because he did not know how much tax Mr Hotait paid, and Mr Gliniecki had not been provided with pay slips.[94] I do not, however, accept that evidence. If, as Mr Gliniecki claims, Mr Hotait told Mr Gliniecki that he was required to attend to 25 clients a week, the only record Mr Gliniecki would have needed to keep to ensure that Mr Hotait was claiming the appropriate amounts was the number of clients Mr Gliniecki attended to.
[94] T72.20
A fourth matter to note relates to two of the payments Mr Gliniecki says he made. The first is $7,500 Mr Gliniecki says he paid on 10 July 2013 “on their account”.[95] Mr Gliniecki has produced no document that evidences the transfer or payment of the money on that day into any account controlled by Mr Hotait or by Ms Amanda, and he has provided no explanation why he has not done so. The second payment is the $4,701 Mr Gliniecki claims he paid to Mr Hotait on 27 July 2014. Unlike the other payments he claims he paid, Mr Gliniecki does not even purport to support this claim by any document that identifies the source from which he says he obtained the cash he paid Mr Hotait.
[95] P Gliniecki affidavit 01.09.2016, [21]
A fifth matter to note is that, during his cross-examination, Mr Gliniecki was asked how he remembered the exact day on which he paid $2,000 to Mr Hotait. Mr Gliniecki said “I was putting everything in my ….-my calendar, and after that I made the affidavit”.[96] Mr Gliniecki, however, did not adduce into evidence any email or any calendar.
[96] T65.30
The final matter to note is the payment of $2,712.50 made on 20 January 2014. Unlike the other claimed payments, there is evidence, and it is accepted by Mr Hotait, that this amount was paid into the personal account of Ms Amanda Hotait. I have set out in paragraph 48 of these reasons Ms Amanda Hotait’s evidence of the circumstances in which she says Mr Gliniecki paid this amount into her account. I do not accept Ms Amanda Hotait’s evidence because it is improbable that she could remember her personal bank account number in circumstances where she claims she could not remember the business bank account. My not accepting Ms Amanda Hotait’s evidence, however, does not mean I must accept Mr Gliniecki’s evidence. The question is whether I am satisfied on the balance of probabilities that Mr Gliniecki has proved his case that he made the payments he claims to have made and that he did so in the circumstances in which he claims to have done so; and the answer to that question does not necessarily turn on my making a finding that the facts Mr Gliniecki alleges occurred did not occur.[97]
[97] See the passage from the speech of Lord Brandon of Oakbrook in Rehsa Shipping Co SA v Edmunds I set out in paragraph 65 of these reasons.
Whether or not I am satisfied Mr Gliniecki has proved his case turns on my consideration of the cumulative effect of the matters I have considered in this section of my reasons. These are:
a)the differences between the amounts Mr Gliniecki claims he withdrew from the CBA Account and the St George Account for the purpose of paying cash to Mr Hotait, and the amounts Mr Gliniecki claimed he in fact paid to Mr Hotait;
b)the absence of any evidence that could explain the basis on which the amounts Mr Gliniecki claims he paid to Mr Hotait were calculated;
c)the absence of any evidence that could reasonably explain the basis on which Mr Gliniecki identified the withdrawals from the CBA Account and the St George Account which he claims he made for the purpose of paying the cash to Mr Hotait from other withdrawals recorded in those same bank accounts;
d)Mr Gliniecki not producing evidence of the email or calendar entries he said he created or made when he made the payments demanded by Mr Hotait;
e)Mr Gliniecki not having kept any records of the number of clients he attended to during his employment with Mr Hotait;
f)the absence of any documentary or other evidence that identifies the transfer of the $7,500 Mr Gliniecki says he transferred to an account nominated by Mr Hotait on 10 July 2013; and
g)the absence of any document, including a bank statement, that evidences the payment of $4,071 on 27 July 2014.
The combined effect of these matters is to prevent me from being satisfied on the balance of probabilities that Mr Gliniecki has proved his case that, with the exception of the payment of $2,712.50, he made the payments he claims to have made to Mr Hotait and, in the case of the payment of the $2,712.50 on 20 January 2014, that Mr Gliniecki did so in the circumstances in which he claims to have done so. This part of Mr Gliniecki’s claims, therefore, fails.
Claim for reimbursement
Mr Gliniecki does not explain the ground on which he claims Mr Hotait is liable to reimburse the money Mr Gliniecki paid in connection with his applying for a 457 visa. The only evidence on which Mr Gliniecki relies is a statement made by Ms Young, the migration agent, to Mr Gliniecki that Mr Hotait had to pay Ms Young’s “fees + costs of the sponsorship and nomination”. Mr Gliniecki does not allege that Mr Hotait agreed to pay those amounts. On the contrary, Mr Gliniecki deposes to a conversation with Mr Hotait in which Mr Hotait said that, if Mr Gliniecki wanted to get sponsorship from Mr Hotait and stay in Australia Mr Gliniecki would “have to pay everything”.[98] As I have already noted, Mr Hotait denies he had any such conversation and says that he provided $4,500 to Mr Gliniecki to enable him to pay costs associated with his applying for a 457 visa.
[98] P Gliniecki affidavit 01.09.2016, [11]
That Mr Hotait has given evidence that he paid the $4,500 is capable of constituting an admission by him that he was liable to pay the costs associated with Mr Gliniecki applying for a 457 visa. That admission, at least to some extent, is consistent with reg.2.87(2) of the Migration Regulations 1994 (Cth) (Regulations) which in 2012 provided that a person who is an approved sponsor “must not recover, or seek to recover, from the primary sponsored person or secondary sponsored person, all or part” of the costs that include “migration agent costs, associated with” becoming, being approved, or being a former “approved sponsor”.
The following questions, therefore, arise in relation to this part of Mr Gliniecki’s claims:
a)Did Mr Hotait state to Mr Gliniecki that Mr Gliniecki was to pay all costs associated with his applying for a 457 visa (457 costs), as Mr Gliniecki alleges and Mr Hotait denies; or did Mr Hotait pay to Mr Gliniecki $4,500 for the 457 costs, as Mr Hotait claims and Mr Gliniecki denies?
b)Assuming Mr Hotait stated to Mr Gliniecki that Mr Gliniecki was to pay the 457 costs and Mr Hotait did not pay the $4,500, does Mr Gliniecki have a cause of action to be reimbursed for the 457 costs he paid to Ms Young?
Did Mr Hotait give $4,500 to Mr Gliniecki?
There are a number of matters relevant to determining whether I should accept Mr Gliniecki’s evidence that Mr Hotait told him Mr Gliniecki was required to pay the 457 costs. First, it is not disputed that Mr Gliniecki paid to Ms Young an amount totalling $4,335, and that Ms Young issued invoices to Mr Gliniecki. That by itself supports Mr Gliniecki’s evidence. If Mr Hotait had in fact intended to pay the 457 costs, he would have directly established a contractual relationship with Ms Young by at the very least contacting Ms Young to ascertain the likely costs of the services she would be providing, his being issued with the invoices for the services Ms Young would provide, and Mr Hotait paying Ms Young directly for her services, rather than providing cash to Mr Gliniecki.
Second, had Mr Hotait borrowed $4,500 from his mother and given $4,500 to Mr Gliniecki for the purpose Mr Hotait says he did, it is reasonable to expect that Mr Hotait would have taken the trouble to record the transaction in some way if for no other reason than for taxation purposes. Mr Hotait, however, produced no document that refers to or records the payment to Mr Gliniecki or his having taken out a loan of $4,500.
Third, I do not accept the applicant’s mother, Ms Zena Hotait, had cash of $4,500 to lend to Mr Hotait. From the evidence of Ms Zena Hotait that I have set out in paragraph 41 of the reasons, it appears Ms Zena Hotait received an invalid pension and that she did not own her own house. It is unlikely that a person in her circumstances would have had $4,500 cash readily available to lend to anyone. Further, it is implausible that a person in Ms Zena Hotait’s position would have regularly withdrawn from her bank account more than she needed only to keep surplus cash in her home when she could easily, conveniently, and safely have left any surplus in her bank account. Finally, Ms Zena Hotait said that whether or not or how frequently she went to the bank to withdraw money depended on how much money she had. That suggests that Ms Zena Hotait periodically ran out of cash which required her to attend the bank to withdraw money.
Relying on these three matters I am satisfied that Mr Hotait informed Mr Gliniecki that if he wanted to get sponsorship from Mr Hotait and stay in Australia Mr Gliniecki would “have to pay everything”; and that Mr Hotait did not give any money to Mr Gliniecki.
Is Mr Hotait liable to reimburse Mr Gliniecki?
No submissions were made about this question. The issue between the parties on this part of Mr Gliniecki’s claims was whether Mr Hotait gave $4,500 cash to Mr Gliniecki for the purpose of his paying the 457 costs. As I have already noted, this may be taken to be an implied admission by Mr Hotait that he was liable to pay Mr Gliniecki money in relation to the costs of Mr Gliniecki applying for a 457 visa.
I have considered whether I should find Mr Hotait liable solely on the basis of finding that his claiming to have given $4,500 to Mr Gliniecki constituted an implied admission that Mr Hotait was liable to reimburse Mr Gliniecki the costs he incurred in connection with the 457 visa. There are difficulties, however, in my proceeding in this way. If I were to conclude Mr Hotait’s claim that he paid $4,500 constituted an admission, the admission would be one of mixed law and fact; and there is uncertainty in the cases decided under the common law of evidence as to whether admissions may be made of matters of mixed law and fact.[99] That, perhaps, would not be an insuperable difficulty if there was an obvious factual and legal basis for finding Mr Hotait is liable to reimburse Mr Gliniecki. There is no basis in the evidence before me, however, that Mr Hotait engaged Ms Young to provide migration services. The evidence points to Mr Gliniecki having engaged Ms Young. She issued invoices to him, and he paid the amounts claimed in the invoices. Thus there is no basis for finding Mr Gliniecki has an action for money paid against Mr Hotait on the basis of Mr Gliniecki having discharged a debt Mr Hotait owed Ms Young.
[99] See Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [33465]. The cases are identified at footnote 370
I also briefly considered whether there might be a statutory basis on which Mr Hotait would be liable to reimburse Mr Gliniecki. In particular, I considered whether it could be said that Mr Hotait assumed a liability to Mr Gliniecki because of the combined operation of s.140H of the Migration Act 1958 (Cth) (Act) (which requires that a “person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations”) and s.140Q of the Act (which provides that a person who contravenes a “sponsorship obligation”, of which reg.2.87 may be one, is liable to pay a civil penalty), and Part 8D of the Act (which deals with the recovery of civil penalties). Those provisions disclose no obvious basis for finding Mr Hotait is liable to reimburse Mr Gliniecki; and it is beyond my role to suggest any argument based on these provisions that Mr Hotait is liable to reimburse Mr Gliniecki and adjudicate on such argument.
The end result, therefore, is that I am not satisfied Mr Hotait is liable to reimburse Mr Gliniecki the amounts he paid to Ms Young in connection with his application for a 457 visa.
Alleged loan of $15,000
I am not satisfied Mr Hotait lent to Mr Gliniecki $15,000 or any other amount. First, I have already found I am not satisfied Ms Zena Hotait had the capacity to lend $4,500 to Mr Hotait. The reasons I have given for not being so satisfied apply with even greater force to the evidence Mr Hotait and Ms Zena Hotait gave about Ms Zena Hotait having available in her house $15,000 cash to lend. Second, there is no evidence that Mr Hotait demanded the repayment of the loan before Mr Gliniecki commenced these proceedings. Had the loan been made it is reasonable to expect that Mr Hotait would have demanded Mr Gliniecki repay the loan well before Mr Gliniecki commenced these proceedings. Third, there is no contemporaneous written communication between Mr Hotait and Mr Gliniecki that refers to the loan. Fourth, Mr Hotait’s claim that he lent $15,000 is implausible having regard to other evidence Mr Hotait gave at the hearing before me. In an unresponsive answer to a question asked of him by Mr Gliniecki in cross-examination, Mr Hotait said the following about the eighteen minute conversation he had with Mr Gliniecki on 9 July 2013:[100]
The conversation was about you working at the pub and breaching our contract. The conversation was about you coming only for an hour a day and then disappearing. The conversation was about you sunbathing out the back in the courtyard when Karen was there managing the clinic. The conversation was about you not performing and hurting our clients so that they wouldn’t come back to you. The conversation was about your commitment and – to your agreement with me. I – you approached me for a visa application so that I could help you to stay in the country
[100] T99.20
I later asked Mr Hotait why he would lend to Mr Gliniecki $15,000 in circumstances where Mr Hotait had raised these issues with Mr Gliniecki. Mr Hotait gave the following evidence:
Why would you be lending somebody $15,000 when they’ve got that degree of problem? That’s what I’m asking?‑‑‑I felt sorry for the guy. He said his mother was sick, and just – it’s my nature to help people. Like, that’s my philosophy. It’s my core values, it’s my background. And do you know what ‑ ‑ ‑
Right. Is your mother a wealthy – is ‑ ‑ ‑?‑‑‑My parents came to Australia.
‑ ‑ ‑ your mother a wealthy woman?‑‑‑Sir, no. And that’s why I felt sorry for him.
Yes. And you felt more sorry for him to take ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ $15,000 from your mother to lend it to him; is that what you expect me to believe?‑‑‑Yes, because I saw he had great potential. It’s very hard to find a very good massage therapist, and he is a good massage therapist, and I trained him and spent so much and invested a lot of my time in training him and mentoring him.
Hold it. You say he’s a good massage therapist, and you’ve just said there was a report that he might have drugged one of your customers?‑‑‑Yes. As a technician he’s great.
But why would you ‑ ‑ ‑?‑‑‑But the personality issues started to arise much later and, you know, there were just little things.
That’s not a little thing, surely?‑‑‑Sorry.
Drugging a customer, or a complaint that a customer has been drugged ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ is not a little thing, is it?‑‑‑Well, she withdrew her complaint and she did not want to take that statement, and the lady did also have a lot of anxiety and depression issues.
All right. So your answer is that you lent him this money because, notwithstanding the six or seven ‑ ‑ ‑?‑‑‑I had already done the – yes.
‑ ‑ ‑ matters that you said you raised ‑ ‑ ‑?‑‑‑So ‑ ‑ ‑
‑ ‑ ‑ with him in that 18 minute conversation, you felt sorry and your ‑ ‑ ‑?‑‑‑Well, we had already invested money and time into him.
This evidence is not credible. It is impossible to believe that a person in the position in which Mr Hotait claims he found himself on 9 July 2013 would borrow $15,000 or any other amount from his mother who was on an invalid pension to lend to an employee in circumstances where the person expressed serious concerns to the employee about the employee’s performance that included a complaint that the employee was harming the employer’s customers.
For these reasons, this part of Mr Hotait’s claims fails.
Alleged theft
In his affidavit Mr Hotait alleges Mr Gliniecki “took various sums of money between particularly August 2014 and November 2014 which sums he was not entitled to pursuant to his contract of employment”.[101] The amounts Mr Hotait claims Mr Gliniecki took are listed in an annexure, and they amount to $3,202.50.[102] Mr Hotait, however, has not supported this assertion by any evidence. The claim cannot succeed for that reason alone.
[101] A Hotait affidavit 13.03.2017, page 12, paragraph F
[102] A Hotait affidavit 13.03.2017, page 12, paragraph F; annexure “AH12”
Payment of wages for work not performed
Mr Hotait annexed to his affidavit a table purporting to state for the period from 5 November 2013 to 16 November 2014 the number of hours Mr Gliniecki worked and the hours for which he was paid.[103] It purports to conclude that Mr Gliniecki was paid for 1,285 hours of work which he did not perform. The table appears to have been prepared for the purposes of these proceedings and, for that reason, is not evidence of that which it purports to record. There is no other evidence that shows the actual hours Mr Gliniecki worked, and the amounts Mr Hotait paid Mr Gliniecki. This part of Mr Hotait’s claims fails.
[103] A Hotait affidavit 13.03.2017, page 12, paragraph G; annexure “AH12”
Breach of contract?
Mr Hotait claims Mr Gliniecki breached the “Non-Compete Agreement” that Mr Gliniecki signed on 14 October 2011 before he became an employee, and claims damages.[104] The claim relies on the assertion that within weeks of his ceasing to work with Mr Hotait Mr Gliniecki “took up work Darlinghurst Chiropractic Centre” (DCC). That assertion is supported by a copy of a page from DCC’s web site.[105]
[104] A Hotait affidavit 13.03.2017 page 12, paragraph E; annexure; annexure “AH1”
[105] A Hotait affidavit 13.03.2017 page 12, paragraph E; annexure; annexure “AH1”
I do not accept the claim. First, the restraint applied for six months “of termination of employment”. The employment referred to, however, was Mr Gliniecki’s employment as a subcontractor. That employment ended on 30 June 2013. Second, even if the restraint applied to Mr Gliniecki, and Mr Gliniecki has breached it by performing work for DCC, there is no material before me on the basis of which I could conclude that Mr Hotait suffered any damage. At most, therefore, Mr Hotait would be entitled to nominal damages for breach of contract.
Arguable case of psychological injury?
Given the findings I have made in relation to Mr Gliniecki’s claims, and assuming Mr Gliniecki did develop psychological injuries, there is nothing in the material before me that could raise an arguable case that Mr Hotait breached any contract, or that he assumed a duty of care not to inflict psychological harm on Mr Gliniecki, or that, to the extent he may have come under such a duty of care, Mr Hotait breached the duty. Thus, Mr Gliniecki’s application will be dismissed also to the extent it claims damages for psychological injury.
Conclusion and disposition
Given I have not accepted evidence given by Mr Hotait and Ms Amanda Hotait, Mr Gliniecki may wonder how it is he has not succeeded in his claims. The answer lies in the burden of proof. The burden is on Mr Gliniecki to prove his case. For reasons I have already given, I am not satisfied Mr Gliniecki discharged that burden. That I have not accepted evidence from Mr Hotait and Ms Amanda Hotait cannot overcome what I have found to be deficiencies in Mr Gliniecki’s attempted proof of his claims.
I propose to order that the application and cross claim be dismissed.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 8 February 2018
Key Legal Topics
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Civil Procedure
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Negligence & Tort
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Appeal
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Damages
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Duty of Care
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Negligence
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