Matus v Australia Wide Computer Resources Pty Limited

[2014] FCCA 2716

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATUS v AUSTRALIA WIDE COMPUTER RESOURCES PTY LIMITED & ANOR [2014] FCCA 2716

Catchwords:
INDUSTRIAL LAW – Small claims jurisdiction – unpaid accrued annual leave.

PRACTICE AND PROCEDURE – Application for directions on admissibility of evidence filed after final hearing concluded – leave for further evidence granted – rulings on admissibility of evidence filed after final hearing.

Legislation:

Fair Work Act 2009, s.548, Division 2

Evidence Act 1995 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth), s.3

Top Plus Pty Ltd & Ors v K Square Pty Ltd & Ors (No.4) [2010] FMCA 671

Applicant: MARIAN MATUS

First Respondent: AUSTRALIA WIDE COMPUTER RESOURCES PTY LIMITED
(ACN 055 526 308)

Second Respondent: RONALD BROWNE

File Number: SYG 2141 of 2013

Judgment of: Judge Nicholls

Hearing date: 24 October 2014

Date of Last Submission: 24 October 2014

Delivered at: Sydney

Delivered on: 24 November 2014

REPRESENTATION

Applicant: In Person

First Respondent: Mr R. Brown as Director

Second Respondent:  In Person

ORDERS

(1)Leave is granted to the respondents to file and serve evidence by way of affidavit, in response to the evidence in the affidavit of the applicant of 30 September 2014, relating to job sheets, pay slips and timesheets, on or before 2 January 2015.

(2)Leave is granted to the applicant to file and serve written submissions on or before 13 February 2015.

(3)Leave is granted to the respondents to file and serve written submissions on or before 27 March 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2141 of 2013

MARIAN MATUS

Applicant

And

AUSTRALIA WIDE COMPUTER RESOURCES PTY LIMITED
(ACN 055 526 308)

First Respondent

RONALD BROWNE

Second Respondent

REASONS FOR JUDGMENT

1.On 12 September 2013 Mr Marian Matus (“the applicant”) commenced proceedings in this Court pursuant to the Fair Work Act 2009 (Cth) (the “FW Act”). The applicant elected to make the application under the small claims procedure provided for in s.548 of the FW Act. The applicant alleges that his former employer, Australian Wide Computer Resources Pty Ltd (“the first respondent”) and Mr. Ronald Browne as director of Australian Wide Computer Resources (“the second respondent”), owed him unpaid accrued annual leave entitlements on the termination of his contract to the sum of $20,000.

2.This claim was made pursuant to s.90(2) of the National Employment Standards under Chapter 2, Part 2(2), Division 2 of the FW Act.

3.The matter was “investigated” by the Fair Work Ombudsman who found that the respondents had contravened their obligations under the FW Act and owed the applicant $21,632.72 in unpaid leave entitlements.

Background before the Court

4.The matter first came before the Court on the 2 October 2013. At that time both parties appeared in person. Mr. Ronald Neil Brown appeared as director of the first respondent. Orders were made by consent on 2 October 2013 referring the matter for mediation and listing the matter for directions. The matter was unresolved at mediation.

5.The parties attended directions before the Court on 11 December 2013. On that occasion, orders were made providing the parties with the opportunity to file and serve any evidence by way of affidavit and the opportunity to file and serve written submissions.

6.The matter was heard at a final hearing on 16 September 2014. Mr Matus appeared in person. Mr R Browne appeared on his own behalf and on behalf of the first respondent. Ms Matus (Mr Matus’ wife) and Mr S Brown (Mr Brown’s son) were granted leave to assist, respectively, the applicant and the respondent.

7.Despite the matter having reached, and commenced, a final hearing, both parties sought leave to file and serve further evidence by way of affidavits on which they sought to rely, in regards to an issue that had emerged during the hearing.

8.I made clear to the parties that, given the late stage of the proceedings, any further evidence to be relied upon would have to be limited in scope to the relevant documents raised and discussed at the final hearing.

9.I made the following orders on 16 September 2014:

“1. The applicant have leave to file and serve any affidavit containing additional evidence to be relied upon by 30 September 2014.

2. The respondents have leave to file and serve any affidavit containing additional evidence to be relied upon by 14 October 2014.

3. The applicant and respondents have leave to file and serve any written submissions in relation to the evidence filed pursuant to Orders 1 and 2 by 28 October 2014.”

10.A number of documents were filed by both parties pursuant to those orders. Three affidavits were filed by the applicant. These included the affidavit of Mr Marian Matus of 30 September 2014 and the affidavit of Ms Katarina Matus of 30 September 2014. The affidavit of Ms. Mary Madlene Pisano of 24 September 2014 was also filed by the applicant.

11.The respondents’ filed two affidavits made on 14 October 2014. One affidavit was of the second respondent, Mr Ronald Neil Browne and the second was of Ms Maryam Ayoubi.

Before the Court

12.The respondents were concerned that the applicant had exceeded the scope of the authority granted to the parties.

13.The matter was listed for directions on 24 October 2014 following the respondents’ application for directions pursuant to the grant of liberty on 16 September 2014. The respondents sought directions in relation to the “admissibility” of evidence filed by the applicant after the final hearing and made an application for an extension of time in regards to Order 2 of the Orders made on 16 September 2014.

14.Both parties attended directions before the Court on 24  October 2014. A number of issues arose in regard to the affidavits filed after the final hearing. The issues of immediate concern were as follows:

1.The applicant’s objections as to the admissibility of parts of the affidavit evidence filed by the respondent.

2.The respondents’ objections to the admissibility of parts of the affidavit evidence filed by the applicant.

15.The respondents sought to have a further affidavit of Mr Ronald Neil Brown of 1 October 2013 read into evidence. An issue arose at the hearing in that the respondents had not served this affidavit on the applicant. It emerged that this “further” affidavit had not been filed with the Court. Further, there was no evidence to suggest that the affidavit has been properly served on the applicant at his address for service. In these circumstances, I did not read the affidavit into evidence.

Consideration

16.The issue for resolution involves the parties’ respective “objections” to certain parts of affidavit evidence filed after the final hearing on 16 September 2014. Some care must be taken to distinguish between the two bases for the parties’ objections. The first was that the affidavits, or parts of the affidavits, were outside the scope of the leave granted at the final hearing, as that was explained to the parties at the final hearing. The second was, in the event that leave was granted, whether they should be read into evidence taking into account relevant parts of the Evidence Act 1995 (Cth).

17.Both parties variously raised a number of objections to the affidavit evidence. The respondents objected to the affidavit evidence filed by the applicant on the 30 September 2014, claiming that it went beyond the scope of the leave granted on 16 September 2014 to file further affidavit evidence. The respondents claimed that such leave was granted only in relation to specifically listed documentation that was at issue at the final hearing.

18.The respondents made general references to concerns about hearsay and opinion evidence with reference to various parts of the affidavit evidence of Mr Marian Matus and Ms Katarina Matus of 30 September 2014 and Ms Mary Madlene Pisano of 24 September 2014. The objections were well-founded. However, the current issue is not, primarily, the admissibility of evidence (although obviously a relevant element) but whether the proffered evidence falls within the scope of the leave granted at what was, after all, a final hearing.

19.In this light, the respondents claimed that leave was granted for the applicant to file and serve an affidavit with attached documentation of the applicant’s pay slips and that the respondent had leave to file an affidavit by the company’s operations manager with updated timesheets.

20.The applicant claimed that the orders made on 16 September 2014 gave him leave to file ‘any’ affidavit evidence in regards to various submissions made at the final hearing.

21.As set out above, the issues as before the Court, were whether the information included in all affidavits was, first, within the scope of the leave granted on the 16 September 2014 and as explained to the parties at the hearing, and second, whether such information was admissible as evidence or was in the nature of submissions (put to the Court in the form of an affidavit with annexures).

22.The distinction between these two concepts was blurred by both parties in their submissions and arguments to the Court.

23.It is important to remember that this matter was commenced by invoking the ‘small claims” jurisdiction of this Court. That fact must also be considered in light of the objects of this Court. It is the case that these objects, as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (the “FCC Act”) s.3, provide focus for this Court. See further s.3(2):

“(2)  The other objects of this Act are:

(a) to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and

(b)  to enable the Federal Circuit Court of Australia to use streamlined procedures; and

(c)  to encourage the use of a range of appropriate dispute resolution processes.”

24.The ‘parliamentary intention’ of  the formation of this Court can also be understood from what Judge Raphael said in Top Plus Pty Ltd & Ors v K Square Pty Ltd & Ors (No.4) [2010] FMCA 671 (“Top Plus”) at [30]:

“….the intentions of the Parliament on the formation of the court that it be ‘quicker, simpler and cheaper’…..”

25.Bearing this in mind, it is appropriate to resolve the immediate dispute between the parties as follows. The Table below sets out the Court’s findings in relation to each of the affidavits filed (or parts of the affidavits) as to whether they came within, or fell outside of, the scope of the orders made on 16 September 2014. The Table incorporates the basis for those orders and further includes their relevant scope, as was explained to the parties at the final hearing.

26.The Table further notes the admissibility into evidence of those parts of the affidavits that do come within the scope of the authority granted to the parties, bearing in mind what is set out above at [21] – [25]. This Table should enable the parties in their final written submissions to address the degree of weight that they say should be given to relevant evidence.

27.At the conclusion of the Court event on 24 October 2014 I noted with the parties that I would provide them with this judgment in an attempt to provide certainty and clarity as to the evidence before the Court and to which their written submission should be directed.

28.The evidence already before the Court is as follows:

1.Affidavit of Mr Marian Matus of 27 March 2014.

2.Affidavit of Mr Ronald Neil Brown of 14 May 2014.

3.Affidavit of Mr Marian Matus of 21 May 2014.

4.Affidavit of Mr Ronald Neil Brown of 9 September 2014.

5.Affidavit of Mr Marian Matus of 11 September 2014.

29.To the extent that, for a number of reasons, there may have been uncertainty during the course of directions on 24 October 2014 as to this matter, the parties are to rely on this Table and this judgment as the basis of the evidence, in addition to the evidence referred to at [28] above, that they are able to rely on and what they need to otherwise address.

30.["A": admitted into evidence; "N.A": not admitted into evidence.]

Table of Relevant Findings

Affidavit filed by:	Affidavit	Paragraph/Section	Ruling	Reasons
Applicant	Affidavit of Katerina Matus of 30 September 2014	All	N.A, as per previous disposition made at interlocutory hearing on 24 October 2014.	Outside the scope of orders made on the 16 September 2014.
Applicant	Affidavit of Mary Madlene Pisano of 24 September 2014	All	N.A,  as per previous disposition made at interlocutory hearing on 24 October 2014.	Outside the scope of orders made on the 16 September 2014.
Applicant	Affidavit of Marian Matus of 30 September 2014	Para 1 - Para 70	A, as per previous disposition made at interlocutory hearing on 24 October 2014.	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Para 71-78	A	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Para 79 - 83	N.A	Outside the scope of orders made on the 16 September 2014.
		Para 84	N.A	Outside the scope of orders made on the 16 September 2014.
		Para 85 - 86	N.A	Outside of scope of orders made on the 16 September 2014.
		Para 87 - 100	A	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Para 101-105	N.A	Outside of scope of orders made on the 16 September 2014.
		Para 106-110	A	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Annexure Annexure V	A, as per previous disposition made at interlocutory hearing on 24 October 2014.	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Annexure W	N.A, referred to at Para 80.	Outside the scope of orders made on the 16 September 2014.
		Annexure X	A, referred to at Para 98	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Annexure Y	A, referred to at Para 99.	Referenced in the Affidavit of Ronald Brown of 14 October 2014.
		Annexure Z	N.A, referred to at Para 102.	Outside the scope of orders made on the 16 September 2014.
Respondent	Affidavit of Ronald Neil Browne of 14 October 2014.	All	A	Within the scope of orders made on 16 September 2014.
Respondent	Affidavit of Maryam Ayoubi of 14 October 2014.	All	A	Within the scope of orders made on 16 September 2014.

31.A further matter arose on 24 October 2014. The respondents sought an extension of time to further file an “amended” or updated business record “explaining” authorised leave discrepancies referred to in Annexure A of Mr Ronald Browne’s affidavit of 14 October 2014 (with further reference to Annexure A of Mr Ronald Browne’s affidavit of 9 September 2014). The leave sought to further amend or explain discrepancies in Annexure A of Mr Ronald Browne’s affidavit of 14  October 2014 and was in response to evidence provided by the applicant at the final hearing and in the applicant’s affidavit of 30 September 2014.

32.The respondents claimed that such leave should be granted as a matter of fairness because they sought to provide a further explanation, by way of evidence, in response to evidence raised and pressed by the applicant at the final hearing.

33.The respondents sought leave for a 9 week period in which to prepare their “explanation” of the discrepancies in the business records. I understood the respondents’ claim to be that this period was needed as they had a large number of files to examine and it was a technical and onerous task.

34.The applicant raised a number of objections to the extension of time application. The applicant raised general concerns as to the delays and unfair burden that would be visited upon him by allowing the respondents to file further affidavit evidence after the conclusion of the final hearing. The applicant also claimed that that particular evidence was not relevant to a fact in issue in the proceedings. He further objected, claiming that the potential amended business record went beyond the scope of his original small claims application to this Court.

35.It must be said that the applicant’s concerns and objections have weight. Both for the ‘lateness’ of the respondent’s request and what appeared to be the possibility that the respondents were attempting to create a new business record not in existence at the relevant time.

36.Notwithstanding this, I granted the leave the respondents sought on the basis that it would provide a comprehensive document encapsulating the entirety of the applicant’s relevant employment record as to leave taken during the relevant period. That is, a composite record of existing materials, or, materials arising from, documents already in existence.

37.What weight can ultimately be attributed to this document will depend, in part, and ultimately, on its relevance and relationship to evidence already before the Court and noting the circumstances of its provenance and creation.

38.I made the following orders on 24 October 2014:

1.Leave is granted to the respondents to file and serve evidence by way of affidavit, in response to the evidence in the affidavit of the applicant of 30 September 2014, relating to job sheets, pay slips and timesheets, on or before 2 January 2015.

2.Leave is granted to the applicant to file and serve written submissions on or before 13 February 2015.

3.Leave is granted to the respondents to file and serve written submissions on or before 27 March 2015.

39.The parties should note that as at 28 March 2015 the matter will become reserved for judgment of this Court.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  21 November 2014