Jackson v P/T Constructions WA Pty Ltd
[2015] FCCA 1014
•1 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JACKSON v P/T CONSTRUCTIONS WA PTY LTD | [2015] FCCA 1014 |
| Catchwords: PRACTICE AND PROCEDURE – Interlocutory application for summary dismissal of substantive application – explanation of no reasonable prospect of success – whether no reasonable prospect of success – whether frivolous, vexatious or abuse of process. PARTNERSHIP – Whether person a partner or employee. REMEDIES – Whether compensation for loss suffered because of a contravention. WORDS AND PHRASES – “no reasonable prospect of success” – “compensation for loss suffered because of a contravention” – “myriad”. |
| Legislation: Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), Part 3-1, ss.12, 323, 340(1), 341, 342, 352, 360, 390, 392, 545(1) and (2), 548, 570 Fair Work Bill 2008 (Cth), Explanatory Memorandum |
| Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; (2004) 78 ALJR 907; (2004) 206 ALR 387 Bailey v Krantz (1984) 55 ALR 345 Beck & Anor v Spalla & Anor [2005] FCAFC 82; (2005) 142 FCR 555 Cai v Tiy Loy & Co Ltd [2015] FCCA 715 Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No.2) (1987) 16 FCR 410 Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 Fencott v Muller (1983) 152 CLR 570 Flavel v Railpro Services Pty Ltd (No.2) [2013] FCCA 1449 Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317 Jeffery & Katauskas Pty Limited v SST Consulting [2009] HCA 43; (2009) 239 CLR 75; (2009) 260 ALR 34; (2009) 83 ALJR 1190 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 Kennedy v Australasian Coal and Shale Employees Federation & Anor (1983) 78 FLR 252; (1983) 9 IR 347 Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 Moorgate Tobacco Company Limited v Philip Morris Limited & Anor (1980) 145 CLR 457 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; [2013] 234 IR 139 PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; (1998) 153 ALR 520 Pickering v Centrelink [2008] FCA 561 Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208 Rana v Commonwealth of Australia [2013] FCA 189 Re Wakim; Ex parte McNally & Anor [1999] HCA 27; (1999) 198 CLR 511 Rogers v R (1994) 181 CLR 251 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 The Concise Oxford Dictionary of Current English (Oxford: Oxford University Press, 1984) | ||
| Applicant: | DOMINIC DAVID JACKSON | |
| Respondent: | P/T CONSTRUCTIONS WA PTY LTD |
| File Number: | PEG 266 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 April 2015 |
| Date of Last Submission: | 8 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 1 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms C McKenzie |
| Solicitors for the Applicant: | McKenzie and McKenzie |
| Counsel for the Respondent: | Ms M Saraceni |
| Solicitors for the Respondent: | Ellery Brookman Barristers and Solicitors |
ORDERS
Under r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth):
(a)the first head of compensation claimed by the applicant at Part H of the “Form 2 – Amended Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Amended Claim”) for non-payment of nine weeks wages at the rate of $3000 per week; and
(b)the third head of compensation claimed by the applicant at Part H of the Amended Claim for compensation for unfair dismissal and lying by the respondent,
be summarily dismissed, but otherwise the respondent’s application in a case filed 18 February 2015 seeking that the application be summarily dismissed be dismissed.
The respondent’s application in a case filed 18 February 2015 seeking that the applicant pay security for costs and that the proceedings be stayed until security for costs is paid be dismissed.
The applicant and respondent must confer concerning:
(a)whether, and, if so, on what terms, the applicant might file and serve a Further Amended Claim;
(b)the utility of further mediation; and
(c)the costs, if any, of the respondent’s two applications in a case filed 18 February 2015, which are otherwise reserved,
prior to the next directions hearing.
The proceedings are otherwise adjourned to a directions hearing at 9.30am on 6 July 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 266 of 2014
| DOMINIC DAVID JACKSON |
Applicant
And
| P/T CONSTRUCTIONS WA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Two applications in a case
The respondent P/T Constructions WA Pty Ltd (“P/T Constructions”) has filed two applications in a case which respectively seek:
a)summary dismissal of the substantive application pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and costs under s.570 of the Fair Work Act 2009 (Cth) (“FW Act”); and
b)security for costs and a stay until security for costs has been paid. This second application in a case was not pursued at the hearing of the applications in a case.
The applications in a case were supported by an affidavit of Lawrence Michael Tierney (“Mr Tierney”) affirmed on 12 February 2015 (“Mr Tierney’s 2015 Affidavit”). Mr Tierney is a director of P/T Constructions. Two other affidavits were extensively referred to in the course of the hearing of the applications in a case: an earlier affidavit Mr Tierney affirmed on 10 October 2014 (“Mr Tierney’s October 2014 Affidavit”) and an affidavit of the applicant, Dominic David Jackson (“Mr Jackson”) affirmed on 26 November 2014 (“Mr Jackson’s 2014 Affidavit”).
Substantive application
The substantive application which was filed on 15 December 2014 to which the applications in a case relate is set out in a “Form 2 –Amended Claim under the Fair Work Act 2009 alleging dismissal of Mr Jackson by P/T Constructions in contravention of a general protection” (“Amended Claim”) which alleges dismissal in contravention of a general protection.
The Amended Claim alleges that Mr Jackson was employed by P/T Constructions for a period commencing on 21 May 2014, to either 11 June 2014 or 7 July 2014 on a construction site at the Eastern Goldfields Regional Prison (“EGRP”): Amended Claim, Part B, item 10 and Part G, item 24 at [1]. Mr Jackson’s 2014 Affidavit alleges that he was employed until 11 July 2014 by P/T Constructions: Mr Jackson’s 2014 Affidavit at [31].
The factual substance of the Amended Claim is at Part G of the Amended Claim where Mr Jackson says:
1I was employed by P/T Constructions from 21-5-2014 to the 7/7/2014
2On 1st July 2014 I had a work accident and P/T Constructions at first accepted my claim on workers compensation and then denied it.
3Please see lodged affidavit
4Laurie Tierney then sacked me.
(Transcribed without amendment from the Amended Claim).
At Part H of the Amended Claim compensation is claimed as the remedy, and in a schedule to the Amended Claim that compensation is particularised as follows:
Amount of Compensation claimed
1)Non payment of wages for 9 weeks at the contract rate of $3000 per week
$27000
2)Loss of income for 10 weeks until the move back to Perth could be affected
$30000
3)Compensation for Unfair Dismissal and lying to Pindan and QBE workers compensation Insurers and Work Cover
$25000
–––––––––––––––––––––––––––––––––––––––––––––––––––––
Total
$82000
(Transcribed without amendment from the Amended Claim).
It is relevant to note that the Amended Claim was prepared and filed by Mr Jackson at a time at which he was not legally represented. Although Mr Jackson is now legally represented no orders have been made for the filing of a Further Amended Claim, or have been sought to be made, in the relatively short time since Mr Jackson has been legally represented.
Response to the substantive application
P/T Constructions filed a Response to the substantive application on 17 February 2015 opposing the orders sought by Mr Jackson and seeking a dismissal with costs. The grounds of opposition assert that:
a)Mr Jackson was not an employee of P/T Constructions;
b)even if Mr Jackson were an employee, no provision of the FW Act had been breached; and
c)the Court did not have power to award the remedy claimed to the extent that it did not fall within the meaning of “compensation for loss suffered because of the contravention” in accordance with s.545(2)(b) of the FW Act,
and sought an order for payment of costs under s.570 of the FW Act.
Contravention of a workplace right general protection
Under s.340(1) of the FW Act a person must not take adverse action against another person:
a)relevantly, because the other person has a workplace right, or has exercised a workplace right, or proposes, or has at any time proposed to, exercise a workplace right; or
b)to prevent the exercise of a workplace right by the other person.
A causal link must be established between any alleged adverse action in s.342 of the FW Act which is complained of, here an alleged dismissal from employment, and the matters in s.340 of the FW Act: Board of Bendigo Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044 at [62] per French CJ and Crennan J and [104] per Gummow and Heydon JJ. A workplace right includes the ability to initiate, or participate in, a process or proceedings under a workplace law: FW Act, s.341(1)(b).
Summary dismissal
FCC Rules, r.13.10
Rule 13.10 of the FCC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
On the basis of r.13.10 of the FCC Rules P/T Constructions seeks an order summarily dismissing Mr Jackson’s substantive application because:
a)there is no reasonable prospect of successfully prosecuting the application; and
b)the application is:
i)frivolous;
ii)vexatious; and
iii)an abuse of process of the Court.
No reasonable prospect of success
Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No. 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
In Spencer it was observed that:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed in relation to the phrase “no reasonable prospect of success”, that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J (“Dandaven”).
The Court’s power to summarily dismiss an application is discretionary, and P/T Constructions in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeve J (“Cassimatis”).
Whether relationship of employer and employee existed
P/T Constructions alleges that Mr Jackson was not an employee of P/T Constructions, and the Amended Claim therefore has no reasonable prospect of success, because Mr Jackson would had to have been an employee of P/T Constructions in order to bring:
a)a general protections claim under the FW Act; and
b)a workers compensation claim under ss.18 and 19 of the Workers Compensation and Injury Management Act 1981 (WA) (“WCIM Act”), which is said to be the workplace right sought to be exercised.
Mr Jackson disputes that he was not an employee, and says that he was an employee of P/T Constructions for a period commencing on 21 May 2014 and ending on either 11 June 2014 or 7 or 11 July 2014.
Mr Tierney’s 2014 Affidavit asserts that the relationship between P/T Constructions, a company called Fantastic Building Works Pty Ltd (“Fantastic”) (of which Mr Jackson was a director: Mr Tierney’s 2015 Affidavit at [22] and Annexure LT-4), Mr Tierney and Mr Jackson was one whereby:
a)there was an oral agreement for the hire of equipment by Fantastic from P/T Constructions: Mr Tierney’s 2014 Affidavit at [7]-[9];
b)consequent upon P/T Constructions obtaining a contract on the EGRP site to provide brick and block laying goods and services on site, a contract which Mr Jackson witnessed the signing of: Mr Tierney’s 2014 Affidavit at [30], Mr Jackson was involved on the EGRP site by reason of the fact that P/T Constructions and Mr Tierney provided Mr Jackson with site access to enable him to network and to scope business for Fantastic: Mr Tierney’s 2014 Affidavit at [12]-[20], [30] and [40]-[41];
c)Mr Jackson applied to the Department of Corrective Services for a swipe card to access the EGRP site, which enabled him to come and go “at his discretion, to facilitate his networking”: Mr Tierney’s 2014 Affidavit at [40];
d)Mr Jackson visited the site often, and Mr Tierney understands that he sought work on behalf of Fantastic, but that no work was awarded to Fantastic: Mr Tierney’s 2014 Affidavit at [44]-[49];
e)Mr Tierney did not give permission to Mr Jackson to sit in on early morning pre-start meetings, and he asked P/T Constructions’ site manager, Mr Gazzard about this, and Mr Gazzard told him that Mr Jackson had not asked Mr Gazzard for permission to sit in on the meetings, and that Mr Gazzard had never directed or instructed Mr Jackson to do so on behalf of P/T Constructions: Mr Tierney’s 2014 Affidavit at [45]; and
f)at no time did P/T Constructions have a contractual relationship with Mr Jackson to undertake work on site, whether as an employee of, or contractor to, P/T Constructions, and at no time did any person give directions or instructions to Mr Jackson to undertake work for P/T Constructions: Mr Tierney’s 2014 Affidavit at [52]-[53].
Mr Jackson’s 2014 Affidavit asserts that:
a)in March 2014 Mr Tierney contacted Mr Jackson to advise that he had won a job in Kalgoorlie, and that Mr Tierney asked Mr Jackson to become “a partner in the project”, and that Mr Jackson would need $70,000 to loan to P/T Constructions “to pay wages etc” before monies flowed from the head contractor to P/T Constructions: Mr Jackson’s 2014 Affidavit at [8];
b)a sum of $50,000 by way of loan to P/T Constructions from Mr Jackson was agreed “to finance the job”: Mr Jackson’s 2014 Affidavit at [9], but Mr Jackson has paid in excess of $50,000 by way of a loan to P/T Constructions: Mr Jackson’s 2014 Affidavit at [10];
c)there is a dispute between Mr Jackson and Mr Tierney as to the purpose of the payment of the sum in excess of $50,000, with Mr Tierney claiming that it is for monies owed on the hire of equipment, and Mr Jackson disputing he ever hired any equipment from Mr Tierney or that he owed Mr Tierney any money: Mr Jackson’s 2014 Affidavit at [11]; see also Mr Tierney’s 2014 Affidavit at [9];
d)on 15 March 2014 Mr Tierney emailed Mr Jackson a breakdown of the costs and profit of the job and a copy of the contract, and a meeting was held at Mr Tierney’s office at which it was discussed that Mr Jackson would become a director of P/T Constructions: Mr Jackson’s 2014 Affidavit at [12]-[13];
e)Mr Tierney and Mr Jackson flew to Kalgoorlie to sign the contract for the job (which was at the EGRP site), but before signing the contract they had a meeting at a motel at which it was discussed that:
i)Mr Tierney and Mr Jackson would receive a $3,000 a week “wage” for every week worked on the job at the EGRP site;
ii)Mr Tierney and Mr Jackson would rent a house for the employees of P/T Constructions, and would need a housekeeper-cook, and it was agreed that Mr Jackson’s partner (Ms Filitonga) would do the cooking and cleaning for $800 a week; and
iii)Mr Tierney and Mr Jackson would split the profits from the job equally: Mr Jackson’s 2014 Affidavit at [14]-[15];
f)a meeting was held with Pindan (who it appears were the head contractor on the EGRP site) at which both Mr Tierney and Mr Jackson signed the contract, and Mr Jackson and Mr Tierney looked for a property to rent which was found at 78 Richardson Street in Boulder: Mr Jackson’s 2014 Affidavit at [16]-[17];
g)Mr Jackson attended a Pindan induction course with other employees of P/T Constructions, and obtained a swipe card in the name of P/T Constructions, and says that he was reprimanded by a Pindan manager for safety breaches relating to the use of a brick saw when cutting blocks for P/T Constructions: Mr Jackson’s 2014 Affidavit at [18];
h)Mr Jackson commenced work on 21 May 2014 and all equipment for work (including safety equipment) was supplied by P/T Constructions bar one bar bender which was Mr Jackson’s equipment: Mr Jackson’s 2014 Affidavit at [21];
i)Mr Jackson’s work hours were 6.30am to 4.30pm Monday to Saturday and 9.00am to 4.00pm on Sundays: Mr Jackson’s 2014 Affidavit at [22];
j)together with the “supervisor”, Mr Gazzard, Mr Jackson came to a decision that Mr Jackson would attend the pre-start meeting instead of Mr Gazzard, which meant that he started at 6.00am on Monday to Saturday and 8.45am on Sundays: Mr Jackson’s 2014 Affidavit at [23];
k)Mr Jackson would take direction from or have a discussion with Mr Gazzard each day about his daily activities, and sometimes would have more than one discussion, but rarely took direction from Mr Tierney as Mr Tierney was seldom at the place where physical work was done, although Mr Tierney would come down to the site with Mr Gazzard and Mr Jackson on the days that he was in Kalgoorlie: Mr Jackson’s 2014 Affidavit at [23]-[24];
l)after the pre-start meeting all of the contractors, including Mr Jackson, would sign on to a sign-on sheet, and would obtain general information about the day’s activities which Mr Jackson would take back to the P/T Constructions’ shed and share with other P/T Constructions’ employees, including Mr Tierney, following which they were all required to sign on to another sign-on sheet which was given to Pindan: Mr Jackson’s 2014 Affidavit at [25]-[26];
m)all employees were also required to fill out a pre-start card: Mr Jackson’s 2014 Affidavit at [27];
n)under the heading “What Work I did for P/T Constructions” Mr Jackson lists his duties as follows:
Drilling and epoxying starter bars
Making wooden window frames
Removing frames from buildings
Moving blocks
Setting up and moving scaffold
Using the quick cut concrete saw
Demolition of walls
Mixing core fill and mortar
Cleaning up
Laying out bars
Cutting Steel
Washing out cavities
Loading scaffold
Taking block count
Building Pits for Frews another contractor
Loading slap
Cutting blocks
Putting up bunting
Putting on starter caps
Directing Pindan what material to deliver
Using the radio
Moving the container
Starting the generators
Core filling the blocks
Sorting out steel schedule
Sorting out door schedule
Helping to mark out slab
Setting up brick saw
Taking faulty machinery to get repaired
Taking Photos of work onsite
Organizing safety equipment
Picking up materials
Liaising with material suppliers
Attending safety meetings
Attending contractors meetings
Liaising with other contractors
Outfitting employees in personal safety gear
which list Mr Jackson says is not exhaustive: transcribed without amendment from Mr Jackson’s 2014 Affidavit at [28];
o)Mr Jackson was “safety officer for the company”, the latter appearing, contextually, to be a reference to P/T Constructions: Mr Jackson’s 2014 Affidavit at [29];
p)Mr Jackson once worked for three days with two other P/T Constructions’ employees to build pits for another contractor at the EGRP site and P/T Constructions hired out the labour of Mr Jackson and the two other P/T Constructions’ employees at $100 per hour to each of the three contractors concerned: Mr Jackson’s 2014 Affidavit at [34]; and
q)the allegation that Mr Jackson was networking at EGRP for concrete work “is ludicrous”, and Mr Jackson says that he was working full-time for P/T Constructions seven days a week in circumstances where the contract for the concrete work had already been given out by Pindan before the contract for the brickwork was signed, and that he was never given or asked for plans or the contract for the concrete work, and that another contractor had been given part of the concrete so that two contractors were doing the concrete work: Mr Jackson’s 2014 Affidavit at [36].
P/T Constructions argues that Mr Jackson was not an employee, but on the evidence that Mr Jackson has adduced, that Mr Jackson was in partnership with Mr Tierney. In this regard, P/T Constructions pointed to Mr Jackson’s evidence that:
a)Mr Tierney asked Mr Jackson to “become a partner in the project”: Mr Jackson’s 2014 Affidavit at [8];
b)Mr Jackson agreed to a loan to P/T Constructions “to finance the job”: Mr Jackson’s 2014 Affidavit at [9]; and
c)profits would be split equally: Mr Jackson’s 2014 Affidavit at [15].
P/T Constructions argued that the above evidence established a commercial arrangement at arm’s length, and that the commercial arrangement was a partnership.
Section 7 of the Partnership Act 1895 (WA) (“Partnership Act”) deals with the meaning of “partnership” and provides as follows:
(1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.
(2) In deciding whether a partnership does or does not exist in any particular case, the court shall have regard to the true contract and intention of the partners as appearing from the whole facts of the case.
From the definition in s.7(1) of the Partnership Act three basic factors emerge. Firstly, that “business” is given a very wide meaning, and includes every conceivable trade, occupation or profession, but may not include every activity that merely results in monetary gain. Secondly, to constitute a partnership the business must be carried on by, or on behalf of, all the alleged partners. Thirdly, the partnership must be carried on for the purpose of profit. But, as s.7(2) of the Partnership Act makes clear, a court must “have regard to the true contract and intention of the partners as appearing from the whole facts of the case” in determining whether or not a partnership has been formed: see Fazio v Fazio [2012] WASCA 72 at [53] per Murphy JA (with whom Pullin JA at [13] and Newnes JA at [14] agreed) (“Fazio”).
Section 4 of the Partnership Act precludes a partnership which includes P/T Constructions, because it appears to be registered as a company under the Corporations Act 2001 (Cth): Mr Tierney’s 2014 Affidavit at [1] and Mr Tierney’s 2015 Affidavit at [1].
On Mr Jackson’s evidence some of the elements of a partnership are arguably present, but far from conclusively so. For example, there is no evidence of an agreement to share losses: Walker v Hirsh (1884) 27 Ch D 460, or of any authority to obtain credit on behalf of the partnership: Shand v Ball (1936) 35 AR (NSW) 77 at 82 per Browne J; Lopes v Marino (1939) 38 AR (NSW) 188, both of which are strong indicators of partnership. Further, it is possible to share profits without being a partner: s.8(3) of the Partnership Act provides that a contract for remuneration of a servant engaged in a business by a share of the profits does not of itself make the servant a partner in the business or liable as such. Thus, the splitting of profits, whilst prima facie evidence of partnership, does not preclude an employment relationship from existing, particularly as that employment relationship is not alleged to be between Mr Jackson and Mr Tierney, but rather between Mr Jackson and P/T Constructions.
Turning to Mr Tierney’s evidence, the case for a partnership becomes weaker because it is apparent that Mr Tierney facilitated the relationship with Mr Jackson for the purposes of allowing Mr Jackson to network on the EGRP site, and not, on Mr Tierney’s evidence, for the purposes of conducting a business in common for the purpose of profit: Mr Tierney’s 2014 Affidavit at [15], [20], [40] and [44]. Furthermore, Mr Tierney’s evidence does not lend itself, firstly, to a finding that both Mr Tierney and Mr Jackson were intending to act as agents binding the business of the asserted partnership, nor, secondly, to Mr Jackson having a right of management or voice in the affairs of the business to be conducted by the partnership: Fazio at [53]-[54] per Murphy JA.
In all of the above circumstances, and where a court must assess “the whole facts of the case”: Partnership Act, s.7(2), in order to determine if there is a partnership, the Court is not satisfied that the evidence presently before it is sufficient to establish a partnership as alleged by P/T Constructions, and is not nearly sufficient to warrant the Court exercising its discretion under r.13.10 of the FCC Rules to summarily dismiss the proceedings. Ultimately, the evidence at hearing may establish that there was a partnership of the type presently asserted by P/T Constructions, but for present purposes, the evidence simply does not establish that partnership at all, or, alternatively, to the standard required in order to obtain an order for summary dismissal of the proceedings.
There is some suggestion that Mr Jackson was, or was intended to be, a director of P/T Constructions. There is no present evidence that he was a director, but even if he were so, that would not preclude his also being an employee of P/T Constructions, if he otherwise met the relevant tests to establish that he was an employee: see Hamilton v Whitehead (1988) 166 CLR 121; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; (2004) 78 ALJR 907; (2004) 206 ALR 387 at [45]-[52] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ; Lee v Lees Airfarming [1961] AC 12; Secretary of State for Trade and Industry v Bottrill [2000] 1 All ER 915.
Concomitant with Mr Tierney’s argument alleging a partnership is the assertion that Mr Jackson was therefore not an employee. Ordinarily, a partner cannot be a party to a contract of employment with a partnership of which the partner is a part because the partnership is not a separate legal entity: Scott & Ors v Commissioner of Taxation [2002] AATA 778; (2002) 50 ATR 1235 at [16] per Member McCabe; Cowell v Quilter Goodison Co Ltd & Anor [1989] IRLR 392 per Lord Donaldson MR at 393 and Glidewell LJ at 394 (with whom Farquharson LJ at 394 agreed). In circumstances where the Court has concluded that there is presently insufficient evidence to establish a partnership, the relationship of employer and employee between P/T Constructions and Mr Jackson cannot, therefore, be excluded on the basis that Mr Jackson is a partner in a partnership providing services on the EGRP site.
In order to create a contract of employment various elements must be present, namely:
a)an intention between the parties to create an enforceable legal relationship;
b)an offer by one party and its acceptance by the other;
c)a contract supported by valuable consideration;
d)the legal capacity to make the contract;
e)genuine consent to the terms of the contract; and
f)that the contract must not be rendered ineffective by reason of conduct illegal or contrary to public policy:
See Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011) page 96 at [4.40] (“Macken’s Law of Employment”)
Whether a person is an employee or not is a question of law: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228 (“Visiting Medical Officers Association”); Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438, and there are many factors which may point to a contract being a contract of employment, with their relative importance varying with the circumstances. Control of the employee exercisable by the employer is a prominent factor, but not the sole criterion, and is one of a number of possible indicia of employment, including but not limited to “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision of holidays, the deduction of income tax and the delegation of work by the putative employee”: Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 at 24 per Mason J (with whom, on this point, Brennan and Deane JJ agreed at 47 and 49 respectively) (“Brodribb Sawmilling”); Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 47 ATR 559; (2001) 106 IR 80 at [43]-[45] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Visiting Medical Officers Association at [19] per Wilcox, Conti and Stone JJ.
The Court is obliged to take Mr Jackson’s evidence at its highest: Dandaven at [6] per Gilmour J. On that basis, there is sufficient evidence that at the motel meeting the parties evinced an intention to create an enforceable legal relationship, and that there was an offer by Mr Tierney, accepted by Mr Jackson, supported by valuable consideration of a wage of $3000 a week, to which the parties, namely, Mr Jackson and Mr Tierney on behalf of P/T Constructions, both having the legal capacity to make the contract, consented: Mr Jackson’s 2014 Affidavit at [15]. The evidence that there was a contract of employment is however reinforced by Mr Jackson’s evidence that:
a)he “commenced work” on 21 May 2014;
b)all safety and other equipment were supplied by P/T Constructions, bar a bar bender that Mr Jackson took to the EGRP site;
c)he worked regular working hours Monday to Sunday;
d)he would take direction from or discuss his duties with P/T Constructions’ site supervisor Mr Gazzard each day;
e)he was required to sign on each day;
f)he did the work set out at para.19(n) above;
g)he was safety officer for P/T Constructions; and
h)P/T Constructions hired out his labour to other contractors.
See, generally, Mr Jackson’s 2014 Affidavit at [21]-[29] and [34].
The Court notes that Mr Jackson was, it appears, not paid the wage he alleged he was promised, and, therefore, there is no evidence of deduction of PAYG taxation instalments, or of the making of superannuation contributions or the accrual of leave entitlements for Mr Jackson by P/T Constructions. That is, on Mr Jackson’s case, explained by the fact that he was entitled to have those matters attended to by P/T Constructions, but it failed to do so, because it did not pay him the agreed wage, either in part or at all.
In the above circumstances, the Court is of the view that, although much of the evidence is in dispute, taking Mr Jackson’s evidence at its highest, there is sufficient evidence of the formation of a contract of employment, and of:
a)control of Mr Jackson exercisable by P/T Constructions (through Mr Gazzard);
b)entitlement to remuneration (and consequently to the deduction of PAYG entitlements, contributions to superannuation and accrual of leave entitlements);
c)the provision and maintenance of equipment by P/T Constructions; and
d)regular ordinary hours of work,
to make an arguable case for Mr Jackson that he was an employee of P/T Constructions.
The evidence at hearing may or may not establish that Mr Jackson was an employee of P/T Constructions, but for present purposes the evidence is sufficient to show that Mr Jackson has an arguable case that he was an employee of P/T Constructions, and, therefore entitled to make a general protections claim and the workers compensation claim. It follows that P/T Constructions’ argument that Mr Jackson’s claim has no reasonable prospect of success because he was not an employee of P/T Constructions, and therefore that the proceedings ought to be summarily dismissed on that basis, has not been made out.
The workers compensation claim
P/T Constructions claims that the reason for the dismissal of Mr Jackson was not based upon a workplace right, namely his workers compensation claim, because:
a)the workers compensation claim was not, on the Amended Claim made or on the evidence in Mr Jackson’s 2014 Affidavit, said to be the reason for the adverse action, that is, the dismissal; and
b)on the facts there is no causal nexus between the workers compensation claim made by Mr Jackson and Mr Jackson’s dismissal, and the reason for Mr Jackson’s dismissal did not relate to a workplace right, being the workers compensation claim, but rather a dispute between he and Mr Tierney which arose on 11 July 2014 at the EGRP site.
Mr Jackson’s evidence in relation to the workers compensation claim and his alleged dismissal is as follows:
30. On the 1of July 2014 I had a work accident. That evening I attended the medical Centre at Boulder where they directed me to the hospital. The Hospital told me I would need a operation, On the 2nd July I told Mr. Tierney. He gave the approval to Hand Doc the plastic surgery service. They rang me then I flew to Perth. Mr. Tierney gave the permission that evening to St John of God Hospital which they have confirmed in a letter.
31. After flying back to Kalgoorlie from the operation and going back to work the next day. Mr. Tierney indicated he was no longer willing to go through his workers compensation. Things deteriorated and on 11 of July during the pre-start meeting Mr. Tierney called me out and as my employer cancelled my swipe card.
33. The only other days I had off were to go to Perth for the operation. I was off work for 3 days and then returned to work. Every other day including Sunday I worked.
(Mr Jackson’s 2014 Affidavit at [30]-[31] and [33] – transcribed without amendment).
Mr Tierney’s version of the events concerning Mr Jackson’s injury, workers compensation claim and exclusion from the EGRP site is, in summary, as follows:
a)he initially did not know that Mr Jackson had been injured and gone to Perth. Mr Jackson later rang him and said that he had had to have surgery on his thumb and asked for P/T Constructions’ workers compensation insurance policy details. Mr Tierney refused to give Mr Jackson those details on the basis that Mr Jackson did not work for P/T Constructions: Mr Tierney’s 2014 Affidavit at [54]-[57];
b)Mr Tierney did not provide the workers compensation insurance policy details to Mr Jackson’s hospital when the hospital rang and requested them: Mr Tierney’s 2014 Affidavit at [62];
c)when Mr Jackson returned to Kalgoorlie a day or so later and asked Mr Tierney for P/T Constructions’ workers compensation insurance policy details, Mr Tierney told Mr Jackson he had never worked for P/T Constructions and that there was no incident report, witness or anything else to support what he was saying and that the dates of his absence did not correlate with the hospital records: Mr Tierney’s 2014 Affidavit at [63]-[64];
d)Mr Tierney confirmed with the safety personnel of the head contractor, Pindan, that P/T Constructions was not aware of any alleged accident or injury to Mr Jackson and that no incident report or incident information had been submitted by Mr Jackson: Mr Tierney’s 2014 Affidavit at [65]-[67];
e)Mr Jackson later asked Mr Tierney to do him a personal favour and put in an incident report. Mr Tierney says that that would have required him to falsify the dates on that report, and he refused to do so, and told Mr Jackson to contact the hospital and provide them with his own insurance details, following which Mr Jackson “got very nasty and threatened me verbally” and “called me a cunt and told me that he would find a way to fuck my company up”: Mr Tierney’s 2014 Affidavit at [68]-[70] - the quotes are from [70];
f)Mr Jackson continued to go on to the EGRP site using a swipe card (which had been provided to him by Pindan) and was abusive to Mr Tierney and Mr Tierney’s site supervisor, Mr Gazzard. This resulted in Mr Tierney telling Mr Jackson he was no longer welcome on the site and that Mr Tierney was not going to tolerate Mr Jackson’s behaviour, which resulted in Mr Jackson saying that he would not leave until his injury claim had been made under P/T Constructions’ workers compensation insurance: Mr Tierney’s 2014 Affidavit at [71]-[74]; and
g)on the morning of 11 July 2014 Mr Jackson threatened to have Mr Tierney “done in” and swore at him, which resulted in Mr Tierney telling Mr Jackson to leave the EGRP site, which Mr Jackson refused to do. Consequently, Mr Tierney informed the Pindan site manager of what had occurred and Mr Jackson’s swipe card was cancelled and Mr Jackson was asked to leave the site due to his threatening behaviour: Mr Tierney’s 2014 Affidavit at [76]-[77] - the quote is from [76].
Although not pleaded or particularised with any precision, or by reference to relevant general protections sections of the FW Act, Mr Jackson’s claim is nevertheless recognised by P/T Constructions, correctly, as “a general protections claim made by … [Mr Jackson] alleging that he exercised his right to make a workers compensation claim … against … [P/T Constructions] and that subsequently his employment was terminated …”: P/T Constructions’ Outline of Submissions at [9]. P/T Constructions argue, however, that Mr Jackson “… has not alleged that the termination of his employment was on the ground that he exercised his right to and had made a workers compensation claim”: P/T Constructions’ Outline of Submissions at [9], and that the “nature of the amount of compensation being sought (non-payment of wages; lost income until move back to Perth and compensation for unfair dismissal) further confirms that the real nature of the … claim … is in no way connected to any adverse action …”: P/T Constructions’ Outline of Submissions at [10]. P/T Constructions therefore submits that, absent any causative link between the termination and the alleged workplace right, being the lodgement of a workers compensation claim, Mr Jackson’s claim has no reasonable prospect of success.
In the Court’s view the causative link is arguably expressly made, and is certainly inherent, in the Amended Claim and the supporting evidence in Mr Jackson’s 2014 Affidavit at [31]. That evidence essentially says that:
a)Mr Jackson had a work accident and suffered an injury which required an operation for which Mr Tierney “gave … approval”, and which would appear was the subject of an operation at a Perth hospital;
b)Mr Jackson flew back to Kalgoorlie following his hand operation and returned to work the next day, and Mr Tierney, on behalf of P/T Constructions, then said to Mr Jackson that P/T Constructions was no longer willing to allow Mr Jackson to claim through P/T Constructions’ workers compensation insurance; and
c)from there, the matter “deteriorated” and on 11 July 2014 Mr Jackson’s swipe card was cancelled by Pindan, at Mr Tierney’s request, effectively terminating his employment because he could no longer access the EGRP site.
The Court does not accept, for present purposes, that there is necessarily an evidentiary gap in relation to what occurred between the day that Mr Jackson returned to work and was told, on his version of events, that P/T Constructions’ workers compensation insurance could not be utilised in respect of his injury, and the termination on 11 July 2014. The assertion that “[t]hings deteriorated” between the time that Mr Jackson returned to work and 11 July 2014 is arguably indicative of an ongoing dispute with respect to Mr Jackson’s workers compensation claim, which ultimately resulted, on Mr Jackson’s case, in termination of his employment by P/T Constructions on 11 July 2014. It is a version of events which is even arguable on Mr Tierney’s evidence which demonstrates ongoing attempts by Mr Jackson to have P/T Constructions recognise a workers compensation claim by Mr Jackson as an employee, and which, as a consequence of P/T Constructions’ refusal to deal with the matter, resulted in a deterioration in the relationship between Mr Jackson and P/T Constructions and Mr Tierney, the consequence of which was the termination of any relationship between Mr Jackson and P/T Constructions. Given the Court’s earlier findings concerning whether Mr Jackson was an employee that termination was, arguably, the dismissal of Mr Jackson from employment by P/T Constructions. The Court does not discount the potential seriousness of the misconduct alleged against Mr Jackson by P/T Constructions, but notes that there may be more than one reason for the taking of adverse action: FW Act, s.360; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; [2013] 234 IR 139 at [44]-[45] per Gray J, and that the prohibited reason need not be the sole reason for the impugned conduct, so long as it is included in the particular reasons for the adverse action: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [198] and [238]-[239] per Mortimer J.
On the evidence presently before the Court it is tolerably clear that Mr Jackson asserts, and there is sufficient basis to argue, that the reason, or a reason, he was dismissed from employment was for exercising a workplace right, namely, the initiation or participation in a process, that is, making or proposing to make a workers compensation claim, under a workplace law, namely, and it does not appear to be in dispute, the WCIM Act under which a workers compensation claim would be made in Western Australia. The WCIM Act is a “workplace law” as defined in s.12 of the FW Act because it is a law of a State which regulates, in the context of workplace injury, relationships between employers and employees: Vukovic v Myer Pty Ltd [2014] FCCA 985 at [97] per Judge Cameron; Cai v Tiy Loy & Co Ltd [2015] FCCA 715 at [118]-[120] per Judge Manousaridis. The evidence also does not preclude the possibility that the workers compensation claim dispute between Mr Jackson and P/T Constructions was a reason, or part of the reason, for the alleged dismissal of employment of Mr Jackson by P/T Constructions. It follows that the evidence does not presently establish that the sole reason for the dismissal was Mr Jackson’s alleged misconduct.
The evidence presently before the Court in relation to the workers compensation claim therefore manifests real issues of fact to be determined, and real room for doubt as to the contending contentions presently before the Court, and in relation to which it is, in the Court’s view, only evidence to be tested at a final hearing which will facilitate the Court being able to reach a properly reasoned and conclusive determination. In this respect the observations of the Federal Court in Dandaven are apposite: “in a case where evidence may give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading”: Dandaven at [6] per Gilmour J.
The Court is therefore not prepared to summarily dismiss the substantive application on the basis that there is no reasonable prospect of success by reason of a lack of a causative link between the lodgement of, or making of, a workers compensation claim by Mr Jackson and his alleged dismissal from employment with P/T Constructions. That causative link is one which, on the evidence presently available, might arguably be made out at a full hearing.
The Court notes that the claim made by Mr Jackson might be arguable, on essentially the same facts as give rise to the workers compensation claim, by reason of a contravention of s.352 of the FW Act which prohibits an employer dismissing an employee temporarily absent from work because of an illness or injury of a kind prescribed by reg.3.01 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”). Although this issue is raised in submissions by Mr Jackson: Mr Jackson’s Submissions, para.17, the Court need not address that submission further, for whilst it might be arguable, it is not apparent that it is pleaded (in any form) in the Amended Claim, nor is there presently in evidence any evidence of a kind prescribed by reg.3.01 of the FW Regulations.
Whether evidence of decision-maker refutable
It was also argued by P/T Constructions that Mr Tierney’s evidence was that of the decision-maker, and was irrefutable. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980; (2014) 314 ALR 1 at [8] per French CJ and Kiefel J (“BHP Coal”) it was observed that:
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [(2012) 248 CLR 500 at 517 [45],French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision-maker as to his or her reasons. The court is not obliged to accept such evidence. It may be unreliable for a number of reasons. For example, other objective evidence may contradict it.
The above passage in BHP Coal was cited with approval and followed by the plurality of the Full Court of the Federal Court of Australia in State of Victoria (Office of Prosecutions) v Grant [2014] FCAFC 184 at [49] per Tracey and Buchanan JJ.
In this case Mr Tierney’s version of events is disputed. At final hearing Mr Tierney’s evidence may, or may not, be accepted by the Court. For reasons set out above, there is sufficient evidence available on Mr Jackson’s case to enable an argument to be put that:
a)he was an employee of P/T Constructions; and
b)there is a causative link between the workplace right (the workers compensation claim) and the adverse action (the alleged dismissal from employment).
Furthermore, to simply accept Mr Tierney’s evidence at this stage would be to ignore or reverse accepted propositions in respect of summary dismissal applications requiring Mr Jackson’s evidence to be taken at its highest, or for evidence of an ambivalent character to be sufficient to amount to reasonable prospects, or to draw all reasonable inferences in favour of the non-moving party: see, for example, Dandaven at [6] per Gilmour J. It follows, therefore, that the Court is not prepared to summarily dismiss the substantive application on the basis that Mr Tierney’s evidence is irrefutable.
Whether injury occurred on dates Mr Jackson was employed
P/T Constructions also argued that there was no reasonable prospect of success because, in any event, Mr Jackson was not injured during dates on which he worked for P/T Constructions. It was therefore argued that any injury sustained did not arise out of, or in the course of, employment for the purposes of ss.18 and 19 of the WCIM Act, and therefore there was no workplace right, because there was no right to make a workers compensation claim in respect of a period of non-employment.
P/T Constructions acknowledges in its submissions that Mr Jackson in his Amended Claim posits two periods of employment, one from 21 May 2014 to 11 June 2014 and another from 21 May 2014 to 7 July 2014, and that on the basis of Mr Jackson’s Affidavit there is a third period of employment posited commencing 21 May 2014 and ending on 11 July 2014. Acknowledging that P/T Constructions does not admit that an employment relationship existed, Mr Tierney’s 2014 Affidavit evidences that Mr Jackson was on the EGRP site on 11 July 2014. The relevant injury is alleged to have occurred on 1 July 2014, and on Mr Jackson’s 2014 Affidavit, he subsequently received treatment in Perth some time in the first week of July 2014 with the approval of Mr Tierney. On the evidence in both Mr Jackson’s 2014 Affidavit and Mr Tierney’s 2014 Affidavit his EGRP site access was terminated on 11 July 2014, and on Mr Jackson’s case this brought his employment to an end by way of dismissal.
The Court must draw all reasonable inferences in favour of the non-moving party: Dandaven at [6] per Gilmour J. P/T Constructions’ argument disregards the law in this respect because it is open to infer on the basis of the Amended Claim and the available evidence that there was an employment relationship which arguably existed between Mr Jackson and P/T Constructions from 21 May 2014 to either 7 July 2014 or 11 July 2014. It may be, also, that the employment relationship ended on 11 June 2014, in which case P/T Constructions’ submissions would have substance, as they would if the employment relationship did not exist. But the evidence sufficiently establishes that the date of alleged employment is in dispute, and it is arguable that the alleged employment ended on either 7 or 11 July 2014, and that the injury therefore occurred during a period of employment. The determination of that issue can only conclusively be resolved as a consequence of evidence at trial, and not by way of summary disposition at this relatively early stage of the proceedings.
The nature of the remedy sought
P/T Constructions also argues for the summary dismissal of the proceedings on the basis of the nature of the remedy sought by Mr Jackson, and in particular that:
a)the nature of the amount of compensation being sought (non–payment of wages; lost income and compensation for unfair dismissal) confirms that the nature of the claim is in no way connected to any adverse action as required under Division 3 of Part 3-1 of the FW Act;
b)the heads of claim for compensation for the general protections claim do not come within the orders able to be made by the Court under s.545 of the FW Act for a general protection claim alleging breach of a workplace right, and particularly, where compensation is being sought, that it must be for “loss that a person has suffered because of the contravention”: FW Act, s.545(2)(b);
c)that part of the compensation claim which seeks payment for wages during the period of employment is a small claim within the Small Claims Division of the FW Act jurisdiction of the Court, and is unrelated to any loss suffered as a result of a termination following upon the making of a worker’s compensation claim; and
d)that part of the claim which seeks compensation for unfair dismissal and for “lying to Pindan and QBE Workers Compensation Insurance [“QBE”] and Work Cover” is not a proper claim for compensation flowing from a general protections claim.
Section 545(1) and (2) of the FW Act provides as follows:
(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
In the Court’s view, in the present circumstances, there is no unfairness or oppressiveness constituting an abuse of process in relation to these proceedings by reason of the Magistrates Court Civil Claim. The resolution of the Magistrates Court Civil Claim, which is well advanced and soon to go to trial, may assist in narrowing both the evidentiary scope of, and the issues to be determined in, these proceedings. The determination of the Magistrates Court Civil Claim will also give the parties the opportunity to examine any findings made and determine whether or not those findings impact upon these proceedings. For the above reasons, the Court perceives no injustice to P/T Constructions, and no abuse of process, in the substantive proceedings in this Court. That position may of course change dependent upon the determination of issues in the Magistrates Court Civil Claim.
In all of the above circumstances, the Court is not satisfied that there is an abuse of process in this matter. It follows that there is no abuse of process for the purposes of r.13.10(c) of the FCC Rules, and in that respect the application for summary dismissal fails.
Other matters
The Court has considered the evidence concerning the threatening behaviours contained in Mr Tierney’s 2015 Affidavit: Mr Tierney’s 2015 Affidavit at [26]-[35]. That evidence is presently not sufficiently relevant or compelling to form the basis for any finding in relation to the application for summary dismissal of these proceedings.
The Court also notes that a consequence of the findings made by the Court in these Reasons for Judgment might be to cause the parties to consider whether further mediation might be of utility in resolving these proceedings. There will be an order that the parties confer with respect to mediation. The Reasons for Judgment also give rise to the question of whether or not Mr Jackson might file and serve a further amended claim, and again the Court will order that the parties confer with respect to that issue.
As to costs, proceedings under the FW Act are normally not subject to costs orders, by reason of the provision of s.570 of the FW Act. The Court notes that in these proceedings there were two applications in a case, one of which was not pursued, and the other which has been dealt with in these Reasons for Judgment. In the circumstances, costs of the two applications in a case will be reserved, and the parties, bearing in mind the statutory hurdle that confronts them, are to confer with respect to the question of costs.
The proceedings are otherwise to be adjourned to a directions hearing at 9.30am on 6 July 2015. That will allow sufficient time for conferral on the issues referred to immediately above, and may be sufficient time for the Magistrates Court Civil Claim to have been determined.
Conclusions and orders
The Court has concluded that:
a)under r.13.10(a) of the FCC Rules:
i)the first head of compensation claimed by Mr Jackson, at Part H of the Amended Claim for non-payment of nine weeks wages at the rate of $3000 per week; and
ii)the third head of compensation claimed by Mr Jackson at Part H of the Amended Claim for compensation for unfair dismissal and lying by P/T Constructions,
are to be summarily dismissed, but otherwise P/T Constructions’ application for summary dismissal will be dismissed;
b)P/T Constructions’ application for security for costs and a stay of the substantive application until security for costs be dismissed;
c)P/T Constructions and Mr Jackson must confer prior to the next directions hearing concerning:
i)whether, and, if so, on what terms Mr Jackson might file and serve a Further Amended Claim;
ii)the utility of further mediation; and
iii)the costs of P/T Constructions’ two applications in a case, which are otherwise reserved; and
d)the proceedings will otherwise be adjourned to a directions hearing at 9.30am on 6 July 2015.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 1 May 2015
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