Linkhill Pty Ltd v The Director of the Fair Work Building Industry Inspectorate

[2015] HCATrans 340

[2015] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M189 of 2015

B e t w e e n -

LINKHILL PTY LTD (ACN 006 166 070)

Applicant

and

THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 1.35 PM

Copyright in the High Court of Australia

MR J.D. CATLIN:   If the Court pleases, I appear for the appellant.  (instructed by Roy Morgan Research Limited (Group))

MR S.J. MOORE, QC:   If the Court pleases, I appear with my learned friend, MS A.M. DUFFY, for the respondent.  (instructed by Clayton Utz)

NETTLE J:   Mr Catlin.

MR CATLIN:   Yes, I might deal with the discretionary error first with regard to leave to argue the new point.  Leave was resisted by the Director on the grounds that he would be prejudiced by an inability to lead new evidence.  The Full Court fundamentally miscarried the exercise of its discretion by misconceiving the evidence that the Director would want to lead to make the proposed new point.

NETTLE J:   Now, why did you not lead it at the trial?  They put up their particulars of claim.  They said, “Well, here’s what we are proposing.  What do you say in response” and you said nothing in response.

MR CATLIN:   Your Honour alludes to an explanation.  The only explanation I can give from the Bar table was inadvertence, though we do say, of course, that the argument was implicitly put below.  It was bound up in the Director’s case and in the calculations he made and in the compensation orders that he calculated and sought.  All the schedules contained in calculations were scheduled to the pleadings and might be regarded as particulars as such ‑ ‑ ‑

NETTLE J:   So he put forward the evidence that you say that he had no chance to put forward?

MR CATLIN:   Indeed.

NETTLE J:   He did, and invited your response.

MR CATLIN:   No, the legal argument was implicit.  It never became express.  It was implicit in the calculations.

GORDON J:   I find it strange that you have - a company that is subject to an allegation of sham contracting is given schedules which set out what were said to be payments made deducted from the award and your client does not say, “Hang on a minute, there are a whole lot of other payments I made that you should take into account”.  Why would your client lead that at trial, and why is it not a Coulton v Holcombe problem?

MR CATLIN:   There was a last minute change of counsel.  That is one explanation.  I was not counsel below.  All I can say to your Honour is that one explanation that is sometimes sought and was of course propounded by the Director is that it was a tactical decision.

NETTLE J:   Well, there is no evidence to suggest that it was not tactical, is there?

MR CATLIN:   No, but there is no logic or inherent tactical advantage from Linkhill failing to raise the point below.  It was to its advantage to have done so, hence my assertion from the Bar table it must have been inadvertence.  So, if I may proceed, the Full Court miscarried profoundly because it concluded the Director would be prejudiced by not being able to lead evidence about what the parties intended to be included in the hourly rate paid. 

As your Honours are aware, the premise is that if there is a corollary within a simple bare wage, or a simple contract wage, which is the language we use, if there is a corollary with an award it is entitlement.  If you look at purpose then you might be able to set one off against the other.  So the Director contended that it would be prejudice by not being able to lead evidence about what the parties intended to be included in the hourly rate.

Now, that type of evidence would have precisely harmed the Director’s case, would have directly contradicted his case.  The Director had maximised the compensation orders by calculating and implicitly submitting that the contract rate included none of the award entitlements other than ordinary hours.  That is why the compensation orders were high and that is why ultimately the fine was so high, because all those award entitlements had not been comprised in the contract rate.

Now, Justice White noted this at paragraph 109 of his decision and, of course, the Director states in argument that the set‑off was in play – this is in the Director’s summary of argument – and the only argument was to its extent, but the Full Court held that the Director would have been assisted by leading evidence about other matters that might have been included in the hourly rate.  Now, that was a profound error employing a wrong principle, mistaking the facts and unreasonable and plainly unjust and perhaps it is so profoundly wrong it triggers the fourth element in House v King that it might not appear how the court reached the result, but nevertheless it is profoundly wrong.

Now, the new point intended to be run by the appellant would have relied on the evidence as led by the Director that the contract rate contain no other award entitlements.  It was carte blanche, if you will, or if I may be so bold, argent blanc, blank money.  That was the case that the appellant wanted to rely on, the evidentiary foundation that the contract rate intended no other entitlements to be included in it. 

As such, that would have attracted the principles according to the authority of James Turner Roofing to activate a set‑off, that blank money can simply be applied to award entitlements.  Thus both parties wanted to keep the evidence as it was:  the Director in order to get the result along the lines of Poletti v Ecob and Ray v Radano, and the appellant to get the result along the James Turner lines.  So the Full Court also erred in the application of the lines of authority such as Water Board v Moustakas in considering whether the possibility of evidence being led was not fanciful.  The kind of evidence that the Full Court thought might be led was fanciful.

Now, had the court not misconceived the law and the evidence, a very simple legal argument could have been run by the appellant, probably just by amended final submissions.  It was really just a simple legal point, and thus was expedient for the Full Court to allow the new point to be raised.  The new point was a matter of considerable importance, $466,365 in penalties and compensation orders were at stake.

It was a profound miscarriage also in the discretion because it was against a defendant in a regulatory proceeding where the regulator was unable to volunteer any category of evidence that might assist him.  The Director was asked, “What kind of evidence might you lead if the new point was raised” and could not indicate.  The Full Court has stepped in. 

Now, fairness, if I can apply a standard to a regulator in the Director’s position, fairness or even the P & C Cantarella principle of assisting the court to achieve a proper and just result behoved the Director to give the appellant the benefit of the doubt, because as is aptly stated by his Honour Justice Anderson in the Western Australian Court of Appeal, if the law allows double payment of wages or considerable overpayment of wages, justice and the law will have parted company.  Thus it was not only expedient but in the interests of justice to allow the new point. 

Now, the special features of this miscarriage that enliven the special leave jurisdiction, in my submission, are these:  first of all, the serious injustice measureable by the extent of the fines and compensation orders; two, the questionable conduct of the Director in resisting the application and taking a highly technical point when he was, as I have submitted or the appellant has submitted, he was in the shoes perhaps not of a prosecutor – I concede his duties are not that high – but in the duties somewhere in the zone of a model litigant, higher than a normal party to a proceeding.

Now, we submit strongly it is inconceivable that the Director did not understand that neither side would need to lead new evidence to consider this new point.  It is inconceivable.  A further injustice enlivening the special leave jurisdiction which I have alluded to is failing to highlight the live nature of the set‑off issue by making clear to the court the excess payments over award to the workers. 

There is some cavilling in the submissions of the Director about this and in the appellant’s submissions we have alluded to the fact that the Director still will not assist the court by giving a very simple figure of what it says is the excess over the total award entitlements paid by Linkhill to its workers. 

In all the circumstances of the respondent being a Commonwealth body with considerable economic and investigative power, backed by a large commercial law firm, it should have conducted itself differently and that is also a special feature, we submit, enlivening the jurisdiction of the court to consider this House v King error of discretion and raise it above what would normally be knocked out.

If I can now address your Honours on the second main special leave point and that is that there are differences of opinion in the state of the law and it is appropriate for this Court to resolve them.  There is no argument that there are differences of opinion, as the plurality noted at paragraph 98, the Poletti v Ecob and ANZ v FSU lines of authority are inconsistent with the authority of James Turner Roofing.

The former line of authority, Poletti v Ecob and ANZ v FSU, requires, as I have submitted, a close correlation between the nature of the contractual obligation and the nature of the award obligation, what I call using shorthand, purposive overlap.  Now, the latter line of authority, James Turner Roofing, dictates that if money is carte blanche, as I have said, unbadged, unallocated, it can be set‑off against almost any award entitlement.

The appellant respectfully adopts the characterisation of the differences in the lines of authority set out by the Full Court.  The plurality stated there was a difference to be resolved at paragraph 100, but noted that it might “be left for another day”, as did Justice White, who noted at paragraph 131 with regard to James Turner and the Poletti lines of authority:

There is a question as to whether it involves some modification of the principles developed in the acknowledged employer‑employee cases.  In my opinion, it is undesirable to attempt a resolution of that question on the present appeal. 

In my respectful submission, this is not a bare difference of opinion.  The conflict between these two lines of authority is quite substantial.  One says you have to have a close correlation between notional or actual elements in a payment, whether you call it a wage or a contract rate in the award, and the other says if it is blank that does not matter.  It is a substantial conflict. 

Justice White and the plurality both to some extent alluded to the conflict being confined only to failed contracts for services.  Justice White said at paragraph 100 that James Turner might be a principle for cases involving failed attempts “to create a contract for services” and also he noted at paragraph 123 many of these cases on set‑off involved parties who “recognised . . . that they were in an employment relationship”, and as such there was express payment towards obligations.  Further, at paragraph 125, suggesting a distinct zone of operation for James Turner:

The present case is of a different kind –

Now, the plurality also allude to this at paragraph 99, saying it may be that the classic – I interpose – principles, which are the classic Poletti principles:

do not translate well to a situation where the parties have created a relationship different to that which, subjectively, they had set out to make.

However, their Honours were, with respect, mistaken in trying to confine the conflict in that way.  The scenario of payments being unattributable to an award or being at large is a common feature of cases involving an uncontested employer relationship.  So in Ray v Radano the court noted – and this is cited at paragraph 48 of the Full Court’s decision - the private agreement had nothing to do with the satisfaction of any components of the award.  That is a direct quote from Ray v Radano.  Poletti v Ecob, not extracted in the Full Court’s decision, but at page 325 of that decision:

The evidence disclosed that the appellant and Mr Hunt fixed the remuneration without reference to the rates laid down in the award. ??

Logan v Otis cited in the Full Court at paragraph 57:

Otis may not have realised that the 1989 award . . . would apply to Mr Logan –

So contrary to what the plurality and Justice White said that maybe this conflict is only comprised to a zone of failed contracts of services falling into an actual employee relationship, the issue will arise much more widely than that.  So any resolution of the conflict of opinion by this Court will thus have a wide application.

Further, the appellant submits that the difference of opinion is not just between the Western Australian Court of Appeal, and its decision has been followed in other jurisdictions such as the South Australian Industrial Court, it is also within the Federal Court system.  That is because the express wellspring of the principles enunciated in Poletti and ANZ v FSU is Sheehy’s decision in Ray v Radano.  However, the core of the decision in James Turner is a direct quote from Ray v Radano, and this can be seen in the Full Court’s decision at paragraph 47 citing Ray v Radano, and at paragraph 98 citing James Turner.  Exactly the same words are used, namely that:

If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement –

So the very source of the apparent conflict of opinion seems, on the reading of the source authority, Sheehy’s decision in Ray, to support James Turner.  So there is confusion, in my submission, in the Federal Court system, and the Full Court plurality noted that paradox at paragraph 98 and made a preliminary attempt to explain it.

Now, to enliven the special leave jurisdiction, we say there is public importance in resolving this conflict of opinion due to the likely frequency of the application of the principle.  As the plurality stated at paragraph 40:

A body of jurisprudence has developed which explains how payments made to employees are to be taken into account in claims for amounts due under industrial awards or instruments.

Its application is therefore relevant to the millions of Australians covered by awards.  It is a matter important to Australia’s system of employment.  This case is an appropriate vehicle because the question of how payments to a worker, payments which have no designation or allocation, are to be allocated against award entitlements is at least very likely to arise every time there is a sham contracting case and, for the reasons I have laid out, would naturally also arise in normal employee relationships whenever an employer has simply sought to designate the wage without regard to the award.

It is also of public importance, in my submission, because unless this conflict is resolved the kind of situation which the appellant finds himself in where he is being fined a significant amount of money and ordered to pay compensation for underpaying workers, when it has in fact overpaid them, would bring the law into disrepute. 

The potential financial significance of this I have already alluded to, sums of $462,000 being awarded against Linkhill, and I repeat the statement of Justice Anderson in James Turner – if an employee starts getting paid double on a technicality, law and justice part company. 

So is this case a suitable vehicle for resolution of the matter?  We say yes.  The written and oral agreements in this matter manifest what Ray v Radano refer to and what I would submit is the classical arrangement, a private agreement that has nothing to do with any satisfaction of the components of the award.  That was the scenario in Ray v Radano and James Turner Roofing.

NETTLE J:   But, Mr Catlin, none of that has been considered on that basis in either of the courts below yet, has it?

MR CATLIN:   In the Federal Court system?

NETTLE J:   Yes.  By reason of the way in which the matter was run at first instance and by reason of the decision made by the Full Court, there has been no consideration of what you say is the evidence there to establish the correlation, if it need be, or in any event the overpayment if it need not be, which should go in reduction of the amount awarded.

MR CATLIN:   There has been consideration of the evidence in the court below, your Honour.

NETTLE J:   On that issue?

MR CATLIN:   Yes.  As I have said, implicitly, the Director ran a case where ‑ ‑ ‑

NETTLE J:   I thought your complaint was that by reason of the Full Court’s order you were precluded from making the submission that there was indeed evidence which would demonstrate, all things taken into account, an overpayment rather than an underpayment of the amounts due under the awards and registered agreements?

MR CATLIN:   Yes, I am concerned I might be confused by your Honour’s question.  I stand by my previous submission which is that the evidence as led by the Director, we would have adopted that.  We would not have led different evidence and ‑ ‑ ‑

NETTLE J:   Well, I reiterate the question I put to you.  Is it not the fact that there has been no consideration of that argument by either of the courts below?

MR CATLIN:   Not in their reasons, no.

NETTLE J:   Thank you.

MR CATLIN:   They have not had to.  They have accepted, as I have submitted, the calculations.  The argument is embedded in the calculations.  They have accepted the calculations of the Director, which say we are allowing a set‑off of the hourly ordinary rate but no other entitlement, but in terms of argument, no. 

NETTLE J:   Yes.

MR CATLIN:   But as I have submitted, the case contended for by the Director was strongly put on the basis that the evidence says there is no other entitlement, there is no other purposive correlation in the contract rate paid by Linkhill with any award entitlement and, therefore, Linkhill has to pay every award entitlement.  We would embrace the evidentiary substratum created by the Director and say now all there needs to be is an argument about whether James Turner Roofer can apply on that body of evidence.  They are my submissions – unless there is anything further.

NETTLE J:   Thank you.  Mr Moore.

MR MOORE:   If the Court pleases.  Special leave should be refused because firstly there is no arguable case of error in the decision of the Full Court, and secondly, the novel arguments said to now arise in the matter are without substance and do not properly arise.  If I can ask the Court to look at the applicant’s response to the respondent’s outline which is in the second volume of the court book at page 512, paragraph 2.  The question of novel arguments is dealt with in that.  At paragraph 3 the question of error is dealt with. 

Dealing first with the question of error, contrary to my friend’s submissions just given a few moments ago, paragraph 31 of the applicant’s first summary of argument, there is a concession – an acceptance that the court applied the correct test in dealing with the argument about whether leave should be granted to advance the new point on appeal.  Paragraph 3 of the response picks up from there and attempts to posit an error of the requisite type in the House v King sense, given the discretionary nature of the decision.

It is common ground that that was a discretionary decision.  The asserted errors relied upon by the applicant are those set out in paragraph 3.  Dealing with paragraph 3(a), which is the proposition that irrelevant matters were taken into account by the court, namely the non‑existent and counterintuitive possible evidence able to be hypothetically led by the respondent to meet a new point, we say that that as a complaint about irrelevant considerations is untenable given the principles which are not cavilled with, of course, in Suttor v Gundowda and Moustakas. 

The question for the Full Court was whether a new point could possibly have been met by calling evidence and that that was in fact the central consideration in determining whether leave should be granted, and the Full Court, in my respectful view, plainly directed itself in that way to identify whether there was any non‑fanciful evidence that the Director might have possibly called.

NETTLE J:   Mr Moore, as I understand the applicant’s argument now, it is that, upon the law properly understood, there is no need to show any specific or implicit correlation between amounts paid and obligations to make payment under the award or appropriate industrial instrument.  You can see here the amount of money that is actually been paid, that is not in dispute.  You can see here the amount of obligation which is owed, that is not in dispute, and the difference is the overpayment.  What evidence could be adduced in opposition to that sort of argument, were it tenable?

MR MOORE:   Yes.  Your Honour, that proposition that the applicant wishes to be put is a submission, an argument, sought to be advanced on the basis of the analysis of James Turner Roofing ‑ ‑ ‑

NETTLE J:   Yes.

MR MOORE:   ‑ ‑ ‑ from the Court of Appeal in WA.  The first proposition though, is that it is accepted from this side of the Bar table that there is uncertainty between that court and Full Courts of the Federal Court as to the correct approach in dealing with set‑off.  It is also accepted on this side of the Bar table that that question has not been explored in the area of contractors.  So, to deal with your Honour’s question, the argument that the applicant wishes to run presupposes, of course, that this Court would uphold and apply, as it were, the approach of the Court of Appeal in WA.  Now, that is certainly a matter which would be contested.

NETTLE J:   Of course.  All he is saying, I think, is that we, the High Court, should hear the matter now on the basis of that question of principle because if he wins it all that is going to be done is an arithmetical calculation in the court of first instance to work out who owes what, whereas if he loses it, he loses it for all.

MR MOORE:   The difficulty with that argument is that first, as the plurality observed, there is some uncertainty as to whether that is in truth the approach which Justice Anderson, I think it is – Justice of Appeal Anderson expressed in James Turner Roofing.  So the proposition that one just simply ‑ ‑ ‑

GORDON J:   Put the uncertainty aside about the law and deal with the facts.

MR MOORE:   Yes, your Honour.

GORDON J:   Is the applicant for special leave right to assert that on the material, that is the evidence before the Court now, that analysis, assuming that the applicant is right about the way he puts it, could be undertaken?

MR MOORE:   No.

GORDON J:   Why not?

MR MOORE:   If the approach that the applicant contends for based upon James Turner Roofing was upheld by this Court and said to be appropriate in the terms that my friend argues for, well, questions of convergence of purpose of payments and questions of appropriation do not necessarily appear to arise.  So I would accept that if my friend wins the legal argument about (a) that James Turner Roofing is correct, and (b) it means what he says it means, that one is not necessarily driven to look at evidence around appropriation and evidence around the purpose of payments.

But these are matters which are still referred to by Justice Anderson in James Turner Roofing, so one could not be confident that in this Court that the questions of purpose of payments, of appropriation of payments, would not arise in trying to dispose of the applicant’s claim.  If that occurred, this case is going to be deficient because of the fact that there was no investigation of the question of the purposes of the payments, or of the appropriation of the payments.

NETTLE J:   But if the test truly is at law, it does not matter what the purpose was so long as it was paid.  Where is the difficulty?

MR MOORE:   Well, if it is as simple as that, with respect, your Honour, and one does not need to look at questions of purpose of payment or appropriation ‑ ‑ ‑

NETTLE J:   That is what he is saying apparently.

MR MOORE:   Yes, and if that is ultimately the legal point that is reached, well, there would not be a need, I would accept, to go to the evidence around the purpose of the payments and their appropriation.

NETTLE J:   So if he does establish that that is the law, the rest of it could be worked out in five minutes on the back of a tram ticket, could it not, the arithmetic calculations?

MR MOORE:   If he does establish that that is the law, and it is as the applicant contends for, I would have to in all likelihood accept that the question – if the analysis around set‑off is as simple as the applicant asserts, one does not get to appropriation or purpose, and in that circumstance I would accept that in all likelihood the questions of quantum could be resolved without undue difficulty.

GORDON J:   Where does the Court find the findings necessary by the judge at first instance dealing with these quantification questions, that is, the amounts that were said should have been set‑off?

MR MOORE:   Well, can I ask the Court, your Honour and the Court, to look at the first volume of the application book?  Before I come to answer your Honour’s question directly, if I could ask the Court to look at page 273 of volume 1, this is the first page of an attachment scheduled to the trial judge’s decision on liability.  There then follows 10 schedules, and these are the schedules which were the summary schedules contained in the amended statement of claim to summarise the way in which the detailed calculation of loss and damage was undertaken as evidence in the detailed spreadsheets. 

I just want to draw the Court’s attention to the third and fourth rows.  It identifies in respect of Mr Najdoski that the award hourly rate of pay in the first time period was $16.30 and in the next row it is identified that the actual hourly rate of pay paid by the respondent in respect of the same time period was $22.  Now, I just draw that to the Court’s attention, to pick up on a point my friend made before, which was that it was never made self‑evident by my client at trial that there was a payment over and above the award minimum in relation to the ordinary hours of work.  Plainly, it was spelt out there in the summary.

Now, to answer your Honour Justice Gordon’s question, the calculation of entitlements was dealt with briefly in the long reasons for judgment of the trial judge from page 265 of the court book onwards.  If I could ask the Court to go to 271 at paragraph 372, the trial judge said:

Not only were a substantial number of the appendices referred to in the respondent’s submissions neither filed or served, or if they were filed and served the appendices were filed outside of the directions for filing submissions but the appendices appear at best to be a selective extract from the evidence and the construct on which they were built (i.e. the workers were casuals) has been rejected.  This and the matters raised by the applicant objecting to that material all (as was acknowledged by Counsel for the respondent in submissions before the Court) presented fundamental problems to that material being considered.

In clear distinction to this unsatisfactory approach the applicant had, prior to the trial, gone to the trouble of providing detailed calculations for each of the workers as schedules to the amended statement of claim.

The applicant’s submissions addressed in considerable detail the breaches of the applicable provisions . . . The respondent did not take issue or dispute the calculations in submissions, save as elsewhere set out in these reasons.  The applicant’s submissions also addressed in considerable detail the relevant statutory provisions in relation to leave in respect of the workers at paragraphs [473] to [532].  Save for resisting a finding the workers were employees and not engaged on a casual basis no issue was taken with those submissions by the respondent.

In light of the conclusions reached earlier and as no argument has been sustained that these calculations by the applicant are wrong, declarations should be made that the amounts particularised in the statement of claim remain outstanding and there should be orders for the payment of same including any interest.

That is the extent to which the trial judge dealt with the question of the calculations lost.  The written submissions that the Director filed were in excess of 150 pages.  They were voluminous.  They went through and spelt out in detail how the calculations were undertaken and the plurality refer by way of example to that.  If I can direct the Court’s attention to where ‑ ‑ ‑

NETTLE J:   Mr Moore, I do not think there is any doubt that there is no explanation for what is apparently a most unsatisfactory way in which the applicant ran the case at first instance in view of what it now seeks to argue.  The only question for present purposes is whether it is as simple as the applicant’s counsel submits in saying that it would be possible for this Court to consider the question raised by the divergence of authority as between the Full Court and the Federal Court and the Western Australian Court of Appeal as to whether it is necessary to show a correlation between an overpayment and an award obligation.

MR MOORE:   And the answer to that question, I think, your Honour, is this, that if it is as simple as the applicant contends for, I would accept that ‑ ‑ ‑

NETTLE J:   So what is the fear, that there is a sort of a midway house that would require some consideration of evidence?

MR MOORE:   Well, the fear, if you like, your Honour, is this, that there are, I think, three Full Court decisions of the Federal Court which identify and articulate – these are dealt with in the joint judgment – the specific rules, as it were, which set up the paradigm around which set‑off is undertaken.

NETTLE J:   I am with you, I understand that.

MR MOORE:   Yes, and so the issue, your Honour, is this, that if this matter proceeded, the legal argument would obviously occur and if I can simplify it by saying that the approach which is established in the Federal Court was adopted, there would be no sufficient or adequate evidentiary basis to analyse the question of set‑off, because the question was not run below, there was a non‑fanciful possibility that my client would have sought to lead different evidence.

NETTLE J:   In that event, the applicant would have to accept that he loses, would he not?

MR MOORE:   That would seem to logically follow, your Honour.

NETTLE J:   If, on the other hand, he were successful in his pure legal argument, then I think we have established that the actual calculations of what is due to whom could be worked out fairly readily.

MR MOORE:   Yes, if it was as simple as the applicant submits.

GORDON J:   To put it in neutral terms, your contention is that this is an inappropriate vehicle ‑ ‑ ‑

MR MOORE:   Indeed, yes.

GORDON J:   ‑ ‑ ‑ because only one half of the set‑off argument can be considered, the one half being applicant’s proposed simplistic “I get it all or nothing” because there is no evidence and/or findings about matters which would have to be considered by the current state of authority outside of James Turner Roofing?

MR MOORE:   Your Honour has, with respect, encapsulated it correctly.  Your Honour, that is the heart of the matter.

NETTLE J:   Thank you very much, Mr Moore.  Mr Catlin, do you wish to reply?

MR CATLIN:   Yes, just briefly.  I respectfully adopt what has fallen from your Honour that were the conflict of principles between James Turner and Ray v Radano to be resolved by this Court the evidence would not give it any difficulty.

NETTLE J:   What if it is a halfway house?

MR CATLIN:   Well, the Director, with respect, my learned friend – and this was the manner of the submissions in the Full Court – really does not elaborate what that halfway house is.  In the same way below, when asked what evidence he might need to lead, he did not offer an explanation either.  There is no halfway house.  The authority of James Turner makes it clear there is no halfway house. 

The decision of Justice Anderson says, and it is cited in the Full Court, that if the money is simply allocated as a wage and is not attributed to anything, well, then it can be applied to award entitlements.  So what this halfway house that the Director contends for is is not elaborated and does not exist.  If your Honours please.

NETTLE J:   Thanks, Mr Catlin.  The Court will adjourn briefly to consider this matter.

AT 2.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.15 PM:

NETTLE J:   In this matter the Court is of the view that insofar as the applicant’s grounds of appeal identify any question of principle or public importance, the case is not an appropriate vehicle for consideration of that question.  Otherwise, the Court is not persuaded that the Full Court’s judgment is attended by sufficient doubt to warrant the grant of special leave to appeal.  Accordingly, the application for special leave to appeal is refused.

MR MOORE:   We seek the costs, your Honour.

NETTLE J:   Mr Catlin?

MR CATLIN:   No objection.

NETTLE J:   The application is refused with costs.  Thank you, ladies and gentlemen.  Adjourn the Court. 

AT 2.16 PM THE MATTER WAS CONCLUDED