Harper v Gold Coast Pistol Club Limited
[2021] FedCFamC2G 191
•20 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Harper v Gold Coast Pistol Club Limited [2021]FedCFamC2G 191
File number(s): BRG 311 of 2021 Judgment of: JUDGE VASTA Date of judgment: 20 October 2021 Catchwords: INDUSTRIAL LAW – terms of employment – whether employer allowed employee to live in caretaker cottage for life – injunction – whether prima facie case of an agreement that the applicant live in the cottage for life – whether pima facie case that applicant be the arbiter of whether she can perform the duties of caretaker – No prima facie case established – Application dismissed Legislation: Fair Work Act 2009 (Cth) Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46 Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 20 October 2021 Date of hearing: 20 October 2021 Place: Brisbane Counsel for the Applicant: Mr Fernon Solicitor for the Applicant: Yate Beaggi Lawyers Counsel for the Respondents: Mr Smith Solicitor for the Respondents: Aitken Legal ORDERS
BRG 311 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KATHRYN HARPER
Applicant
AND: GOLD COAST PISTOL CLUB LIMITED
First Respondent
PETER ROPER
Second Respondent
STEVEN JOHN FLORI (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS:
1.That the Application in a Case filed on 4 August 2021 be dismissed.
2.That the Order of Judge Jarrett of 17 September 2021 be extended to 3 November 2021 for the purpose of the Applicant deciding whether to apply to the Federal Court of Australia for leave to appeal the dismissed Application in a Case and actually lodging such appeal.
3.That the above order does not affect the ability of the Respondents to take any steps before Queensland Civil and Administrative Tribunal in furtherance of the Notice to Leave issued on 20 October 2021 but the Applicant does not have to respond to any such steps before 4 November 2021.
4.That the substantive application is adjourned for directions before Judge Egan at 9:45am on 27 October 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 26 July 2021, the applicant, Kathryn Harper, filed an originating application seeking the following declarations; that there had been breaches of the Fair Work Act 2009 (Cth) (“the FW Act”) in that she had been underpaid in her employment; that there had been adverse action taken against her by her employer; and, importantly for this application, that she had a right to tenancy in a cottage on the premises of her employer, in effect, for life.
The matter came before Judge Jarrett on 17 September 2021 as a first court date. His Honour made some directions, but the main matter that seemed to be agitated there was whether or not a Notice to Leave issued by the Respondent to the Applicant was a valid notice and whether the status quo, that is, that the Applicant live in the cottage, stay in place until the resolution of the matter. His Honour gave a temporary injunction that would lapse at 5 pm today and set the matter down for interlocutory hearing today on this issue.
The matter has proceeded upon these grounds:
· That the declaration that the notice to leave dated 20 September 2021 addressed to the applicant and issued by the first respondent is void ab initio and of no effect.
· That there be an order restraining the respondents from interfering with the applicant’s quiet use and enjoyment of the premises known as the cottage, 85 Edmund Rice Drive, Ashmore, Queensland, pending final resolution of these proceedings.
The background to the matter, in very short compass, is this: the Gold Coast Pistol Club Limited is a club that has their premises at Edmund Rice Drive at Ashmore. The Applicant is a longstanding member and volunteer of the club. When the club was being established, the Applicant and her husband did quite a number of works to the premises to ensure that it was able to be utilised by its members as a proper pistol club.
The Applicant and her husband had financial problems relating to their business and, upon the death of the Applicant’s husband, the Applicant could no longer run the business and, on her evidence, she was made bankrupt. The Applicant has not deposed as to whether she has been discharged from that bankruptcy or not.
What she says is that, notwithstanding that she was still doing her volunteer work at the club, that she was in a situation where she had no real fixed place of abode. She had to stay with a flatmate. That did not work out. She then stayed with a person whom she knew through the pistol club and was conducting some minor work for that person, but that work that she was doing for that person interfered with her activities at the pistol club and so that arrangement was coming to an end.
She said, in her first affidavit, that this caused her to speak to a person by the name of Robert Schukraft. In her first affidavit, she gave this date of the conversation as after 2008 and at a time that Mr Schukraft was president of the pistol club. She has since revised that to sometime in 2006/2007, though she still believed that Mr Schukraft was the president. It turns out Mr Schukraft was not the president at this time.
She said that she said to Mr Schukraft, “I’ve had to move,” and he said, “How about we go to the board and get you a house to live in for life?” She said, “Yes, that would be great. Thank you.” She said that Mr Schukraft convened a meeting of the committee of the pistol club and that, at that meeting, a motion was put to the committee to the effect that $60,000 would be loaned from the Bank of Queensland to purchase a mobile home to be erected on the land of the pistol club for her. She said that the motion was put to a vote and the motion was unanimously passed. She said that the pistol club did take out the loan and it purchased a mobile home “for me to live in for life”.
She said she does not have a copy of the minutes and she does not know where they are, but she knows that the loan was taken out because, as part of her duties that she was doing with the club, she helped with the bookkeeping. What she said occurred was that she then became, in effect, the manager of the club and was paid $250 a week for what it was that she was doing.
She said that at the 2010 annual general meeting of the pistol club, Mr Schukraft, as President, announced to everyone, “The club has secured a mobile home for Kate for life for everything she has done for the club.”
She said that she had had a conversation with Mr Schukraft, who said to her about the cottage, “This is yours and you do not have to pay any rent, as you will also be the caretaker.” She said, “No, I want to pay back the generosity of the club. Would you accept $100 a week for the rent and utilities?” She said that he said, “If that’s what you want to do, but you don’t need to.” She said, “Yes, I want to. That’s the right thing to do.” She said that she moved into the cottage in 2010, though has since revised that to an earlier time.
There are other recollections from persons who were involved with the club at the particular time. All of those recollections are to the effect that the arrangement regarding the mobile home took place in 2007 and not 2009/2010. The gist of what has been said, by a number of others, is that the applicant was paid the $250 and was given and paid $100 a week in rent and was performing the duties of manager and caretaker.
Mr Schukraft, who was in 2007 the Vice President, said the he recalls, on or around 9 May 2007, the committee held a special meeting. He said that he made the following statements to the meeting:
·The applicant has agreed to be caretaker if she can live in a house, so the club will need to acquire a caretaker’s residence.
·A residence would cost $63,000.
·The club does not have any funds to purchase the residence.
·The club would need to borrow funds to acquire the residence.
·The club will need to install the residence at the club premises; and
·The club will charge the applicant a nominal rent of $100 a week.
He said that, during the meeting, club members were formally asked, “Do you approve of the acquisition of a caretaker’s residence, as proposed?” The club members each agreed. Those processes were then put in place. Mr Schukraft says that he recalls that the Applicant then moved into the cottage and was performing her role as caretaker and that was a separate role to the role as club manager or club administrator.
The President at the time, Mr Geoff Hall, said, in his affidavit, that it was he who convened the special meeting of the committee on 9 May and that, at that meeting, the committee decided to purchase a mobile home to be used as the caretaker’s residence. He said the club borrowed funds for that acquisition and that the home is on the club’s asset register and is included in their depreciation schedule. Rather than Mr Schukraft ever making a speech as president, it actually was Mr Hall who made a speech at the annual general meeting. And in that speech, of which he has annexed a copy, he said these words during the AGM of 2007:
We have our new caretaker’s residence completed and Kate has taken up residence to fulfil this role along with her administrator duties. There is still a fair bit of work to be done to sort out gardens, etcetera, and if you have some time on your hands, please don’t be backward in coming forward, as we would like to complete this project ASAP.
What is clear from the recollections of Mr Schukraft, Mr Hall and every other person who has shared their recollections, is that there was no agreement by the committee or club members that this residence, or caretaker’s residence, was to be lived in by the Applicant for life. The only person who talks of this arrangement being “for life” is the Applicant. There is no support on the evidence anywhere else that those words “for life” were ever used. In fact, Mr Schukraft, who is the person who most concurs with the applicant’s recollection, specifically denies ever using the words “for life”.
What also is clear is that the applicant, and every other person other than Mr Schukraft talk of there being one discussion, and one discussion only, about the residence. All other recollections about the cottage were that it was the caretaker’s residence and it was for the applicant in her role as caretaker and manager/administrator.
It is Mr Schukraft who says that there was another conversation after this, in that he says that the applicant said to him, in 2010, “What am I going to do when I am old and grey? If I stop working, where am I going to live?” Mr Schukraft said, “I can understand why you are feeling this way. Nobody would like to have the end of their life without some security.” The applicant said, “Will I be able to stay at the cottage?” Mr Schukraft said, “I will take your request to the committee.”
Mr Schukraft said he went to the committee and he said, “Kay’s request is reasonable. I wouldn’t want to be in Kay’s position without some security and comfort for the rest of my life. If Kay no longer works at the club, can she continue to live at the cottage as long as she can continue to perform the caretaker role?” Mr Schukraft says that there were statements made at that meeting to these effect:
·It was unreasonable for us to go back to our domestic lives and be comfortable while Kay is doing all this work on behalf of the club without any security.
·We shall give Kay some longevity and security in relation to her residence.
·Kay is a trusted member of the team.
Mr Schukraft said this at paragraph 35, “As club President, (so he has put this at 2010), I put forward a motion to the effect of: If Kay no longer works at the club, she can continue to live at the cottage so long as she continues to perform the caretaker role. There was consensus among the committee and each member voted “I agree” in response to that motion”.
The wording of that motion is very important because it says that the Applicant could continue to live at the cottage so long as she continues to perform the caretaker role. That is an objective condition; i.e., that her living at the cottage is contingent upon her performing the caretaker role.
At paragraph 36 Mr Schukraft said that, after the meeting, he spoke to the applicant and he said, “The committee voted that, even if you no longer work for the club, you can stay at the cottage as long as you can continue to perform the role of caretaker. Now you have a bit of security, you should feel more comfortable.” The applicant said, “I’m pleased and relieved.”
What Mr Schukraft said that he conveyed to the applicant, is something totally different to what it was that he said was the resolution of the committee. The words that he said that he told the applicant were, “As long as you can continue to perform the role of caretaker.” This would mean that the condition for her living at the cottage is a subjective one with the Applicant as the arbiter as to whether she can continue to perform the role of caretaker.
It does not seem that any of this has been found in writing. There is some evidence that club minutes prior to 2007 may have been destroyed in floods, but, in any event, no minutes can be found from 2007 or prior. The only written record is that of Mr Hall in his AGM speech. There is no resolution recorded in any of the minutes that have been found for 2010. However, it would seem that, according to club records, there were scheduled to be committee meetings in January 2010, April 2010, May 2010 and November 2010. There are no minutes that reflect that meetings were held.
It may be that meetings were not held, but more likely, it would seem, is that meetings were held and either minutes were not done, which again is unlikely, or the minutes have been lost or, as it was hinted, somewhat more sinisterly, that they simply have not been produced because the minutes would show what Mr Schukraft said as being correct.
Even if that be so, and what Mr Schukraft has said is correct, is, in many ways, not to the point. This is because in 2018, there was another committee meeting where the question of the cottage was raised again.
In the minutes of a meeting of the committee on Monday, 17 December 2018, the following has been minuted, headed Kate’s Retirement Residence:
This discussion of arrangements for Kate’s retirement and the possibility of her remaining at the club as an onsite caretaker and during the transition of a new manager followed on from previous committee meetings. It was proposed that, upon retirement, the club manager be retained as the onsite premises caretaker and be provided with onsite accommodation at a rate to be determined based on market assessment and the determination of the committee.
That resolution seems to, again, more than just suggest that the accommodation of the Applicant at that cottage was contingent upon her being retained as the onsite premises caretaker.
In mid-2021 the Applicant’s employment was terminated by the Respondent. The application under the FW Act arises out of those matters. The Applicant’s position as caretaker was also terminated and another person has now been appointed by the committee to be the caretaker.
The Applicant says that the arrangement, or the contract, or the resolution of the committee was that the Applicant have this cottage for life. She argues also, in the alternative, that the arrangement is that she live in that cottage for as long as she is able to perform the duties of caretaker and that she is the arbiter of whether she can perform the duties of caretaker.
In other words, she says that the arrangement between her and the club is that she had the job as caretaker for life, and that there were no circumstances under which she could be removed from that position other than physical incapacity to perform those duties. Those duties as caretaker being not onerous at all, it meant that, in effect, she had that security that she was wanting because, if it were that she could not perform those duties, she would have to be in some form of assisted living or aged care home in any event.
The question is whether there is a prima facie case that the Applicant is correct. As I have said, the evidence that has been presented to me does not seem to go anywhere near as far as the Applicant suggests. As I have said, there is no corroboration whatsoever for the Applicant’s claim that the club gave her the right to live in that cottage upon the payment of $100 and then on the payment of whatever market rate there was, for life.
Alternatively, there is nothing other than what the applicant says that Mr Schukraft has said (and what Mr Schukraft himself has said) that anyone had told her that her accommodation was contingent upon her being able to continue to perform the role of caretaker. Whilst it is that Mr Schukraft says that that’s what he told the applicant, this is not what he has said that the committee agreed to. It is also certainly not what is written in the minutes of the December 2018 meeting. The original arrangement of her living there “for life” is not reflected in the president’s speech in 2007.
Notwithstanding that, the question is whether the Applicant does have a prima facie claim that what it is that she says occurred, should be construed by the Court as being the arrangement between the two parties. In effect, the Applicant is saying that the club has allowed her to be able to control what occurs in the cottage and on the land upon which the cottage has been affixed, as long as she pays the $100 a week (or now $275 a week), and that the club cannot change that arrangement unless it is that she agrees that she cannot continue to be the caretaker.
The problem with that proposition is that all of the resolutions in writing, show that the accommodation is contingent upon the applicant actually being the caretaker. Whether the Applicant feels that she can still do the job as caretaker, or not, is not the point. She is, in fact, no longer the caretaker. Someone else is the caretaker. But even more fundamental than that, the Applicant is saying that the club has given her, upon the payment of $100 a week, a power over club assets that is in contradiction of the constitution.
Whilst it may be that the club can ask for a person to provide certain services, or perform certain duties, and because of that, the club will provide a service or remuneration, the fact is that now the applicant is not performing any duties for the club. She has had her membership terminated, but still is of the view that she is the one who is in control of whether it is that she lives in that cottage or not.
That would seem to me to be something that is inconsistent with the constitution of the club and the requirement of the club to operate for the benefit of all members.
It seems to me then, when I look at it all, trying to look at the best-case scenario for the applicant, that I cannot see that the applicant’s contentions rise to the level of being a prima facie case. I am cognisant of what the High Court has said about what constitutes a prima facie case in Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at 65.
Having found that there is no prima facie case, I do not need to look at the balance of convenience. However, it is difficult in these matters not to look at this, especially given – and I am not criticising the Applicant – the emotive submissions that were put to me that the Applicant has no house and that she will, effectively, be made homeless by the execution of the Notice to Leave.
The Applicant has given evidence of her housing situation before 2007, when she started living at the cottage. That was some 14 years ago. The Applicant gives evidence now that she owns a large female Belgian shepherd dog, who lives with her at the cottage and that, if she were required to find alternative accommodation, it needed to be suitable for her dog and herself. This meant that she needs to reside on the ground floor, have ample outdoor space and a landlord who would permit, and be considerate of, pets such as her dog.
She said that she looked at a property at Southport when she first received a Notice to Leave and, at the viewing, she saw 40 to 60 people inspecting it. She said she was advised by the real estate agent that there is very little supply of rental properties on the Gold Coast and whatever does come onto the rental market, there is a very high demand for them. She said that yesterday she looked again for alternate accommodation within her price range of $275 a week and she wasn’t able to locate any alternate properties.
It is difficult to see why the Applicant needs to live at the Gold Coast. The Applicant has supplied no information as to friends or relatives or other family members with whom she may be able to stay, but neither has she given any information as to why it is that she is looking for accommodation at the Gold Coast when the Applicant has no ties, or need, to be at the Gold Coast since her membership of the pistol club had been terminated. She has not explained why she has not looked at cheaper accommodation in places such as Coomera or Pimpama or Logan.
It is difficult to see that the balance of convenience would, in any event, lie with the Applicant, but I have looked at that in any event.
But having come to that conclusion, I order that the application that has been brought before me today be dismissed.
The substantive matter will still need to be case managed and heard to a conclusion. Even though I have found that I am not satisfied that there is a prima facie case, I cannot say definitively that a Court would not find in favour of the Applicant, because there may be some other evidence that has not yet come to my attention. If that were so, the pistol club has said that, whilst they may use the building for other purposes, if it is that the Applicant were ultimately successful, the house can be returned to the state it is for the Applicant to live.
So having regard to all of those matters, I dismiss the application.
I certify that the preceding forty-sixsix (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 1 November 2021
SCHEDULE OF PARTIES
BRG 311 of 2021 Respondents
Fourth Respondent:
LISA-JANE STUBBS
Fifth Respondent:
JONATHAN MOORE
Sixth Respondent:
VICKI GAYE MCKENNA
Seventh Respondent:
DOROTHY LESLEY JAMES
Eighth Respondent:
OWEN MORRIE MCKENNA
Ninth Respondent:
ROSS MCNIVEN
Tenth Respondent:
SAMUEL ROBERT REYNOLDS
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