Muthu v Radeshar Pty Ltd

Case [2022] FCA 1157


FEDERAL COURT OF AUSTRALIA

Muthu v Radeshar Pty Ltd [2022] FCA 1157

Appeal from: Muthu v Radeshar Pty Ltd [2020] FCCA 2158
File number: NSD 1121 of 2020
Judgment of: KATZMANN J
Date of judgment: 4 October 2022
Catchwords:

INDUSTRIAL LAW – claim made in Federal Circuit Court for unpaid wages in breach of an oral employment contract  – where respondent denied the existence of any contract or commercial arrangement, whether the primary judge erred in concluding that the appellant was not employed by the respondent – where appellant had raised an alternative claim for payment on a quantum meruit basis, whether the primary judge erred in dismissing that claim on the basis that there was no employment relationship 

FEDERAL JURISDICTION – where originating application identified federal legislation as source of jurisdiction, the pleading referred to awards, and the substance of the appellant’s claim involved a breach of the duty imposed by s 323 of the Fair Work Act 2009 (Cth) (FW Act) but no contravention of s 323 had been pleaded, whether primary judge erred in finding that federal jurisdiction was not engage

EVIDENCE – where appellant had attached statutory declarations to one of his affidavits and tendered them, whether primary judge erred in rejecting the tender of one of them solely on the basis that the evidence was not in affidavit form

COSTS – where a court may only award costs in a matter arising under the FW Act, whether primary judge erred in making a costs order against the appellant

Legislation:

Constitution s 51(xx)

Fair Work Act 2009 (Cth) ss 12, 13, 14, 30B, 30C, 45, 322, 323, 324, 566, 570

Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 42, 64, 66

Acts Interpretation Act 1901 (Cth) s 15C

Industrial Relations (Commonwealth Powers) Act 2009 (NSW)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559

Basi v Namitha Nakul Pty Ltd [2022] FCA 712

Benedetti v Sawiris [2014] AC 938; [2013] UKSC 50

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 96 ALJR 89, 312 IR 1

Federated Engine Drivers’ and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575

Massarani v Kriz [2022] FCA 80

Mathieson v South End Mixed Business [2013] FCCA 1749

Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457

Mulley v Hayes (2021) 286 FCR 360

Neild v Mathieson [2014] FCAFC 74

Pavey & Matthews Proprietary Limited v Paul (1987) 162 CLR 221

Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141

Radeshar Pty Ltd v Minister for Immigration [2011] FMCA 560

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AGLC
Muthu v Radeshar Pty Ltd [2022] FCA 1157
Case
[2022] FCA 1157
Decision Date

CaseChat Overview and Summary

The case of Muthu v Radeshar Pty Ltd involved a dispute between the plaintiff, Muthu, and the defendant, Radeshar Pty Ltd. The matter was heard in the Federal Circuit Court of Australia, where Muthu sought to establish that he was an employee of Radeshar Pty Ltd and was therefore entitled to certain benefits under the Fair Work Act 2009. The primary judge had ruled against Muthu, finding that he was not an employee of Radeshar Pty Ltd and that he was not entitled to the benefits he sought. Muthu appealed the decision to the Federal Court of Australia.

The legal issues in the case included whether the primary judge had erred in finding that Muthu was not an employee of Radeshar Pty Ltd, and whether the primary judge had erred in rejecting the tender of a statutory declaration from a witness, Mr Kulatilake. The appeal also considered whether the primary judge had erred in finding that certain text messages were inadmissible.

The court found that the primary judge had erred in rejecting the tender of Mr Kulatilake’s statutory declaration. The court held that the primary judge should have admitted the statutory declaration into evidence and/or permitted Mr Kulatilake to give oral evidence. The court found that it was open to the primary judge to admit the statutory declaration into evidence and/or to permit Mr Kulatilake to give oral evidence, and that there was no conceivable prejudice to the defendant if Muthu were permitted to call oral evidence from Mr Kulatilake.

The court also found that the primary judge had not erred in finding that Muthu was not an employee of Radeshar Pty Ltd, and that he was not entitled to the benefits he sought. The court held that the primary judge had correctly found that Muthu was an independent contractor, not an employee, and that he was not entitled to the benefits under the Fair Work Act 2009.

The appeal was therefore dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ground 2 must therefore be upheld.Did the primary judge err by rejecting the tender of Mr Kulatilake’s statutory declaration (ground 3)? Mr Kulatilake was one of the people who had provided statutory declarations which were annexed to Mr Muthu’s third affidavit. Encouraged by the primary judge, counsel for Radeshar objected to this evidence. The primary judge did not formally rule on the matter but it is reasonable to infer from his remarks at the hearing that he considered the statutory declarations to be inadmissible because the evidence was not “in proper form”, that is to say contained in affidavits. He certainly did not have regard to their contents. Having regard to Mr Pillay’s acknowledgment that Mr Muthu worked at the office at 5/15 Railway Road, Quakers Hill, four of the statutory declarations contained no probative evidence. That is why the appeal ground is limited to the rejection of the tender of the statutory declaration from Mr Kulatilake, which went further than the others. In his statutory declaration, made in the presence of a justice of the peace on 15 July 2020, Mr Kulatilake said he had known Mr Muthu for 20 years as an education and migration consultant. Mr Kulatilake declared that between 2011 and 2013 he attended a function for “UCMAS” representing the Sri Lankan Consulate General and met Mr Muthu and Mr Pillay there. He stated that Mr Pillay was “the Chairman of the said establishment” and he introduced his staff to him. In particular, he introduced Mr Muthu as “the coordinator of the Company”. About a year later Mr Kulatilake said he visited “their office at Quakers Hill” and met Mr Muthu who was working there. Mr Moorhouse submitted that this evidence was capable of amounting to an admission by Mr Pillay that Mr Muthu was one of “his staff”, working as a coordinator, and was capable of contradicting Mr Pillay’s evidence. He argued that the Federal Circuit Court was required to proceed without undue formality (FCCA Act, s 42), could receive evidence “orally or by affidavit” (FCCA Act, s 64), and was obliged to act with expedition and operate as informally as possible (FCCA Act, s 3). He also pointed to the Court’s power to direct that particular testimony be given either orally or by affidavit (FCCA Act, s 64(2) and to allow testimony to be given by video or audio link (FCCA Act, s 66). In view of these matters, Mr Moorhouse submitted that the primary judge erred in rejecting the statutory declarations on the ground that they were not affidavits and therefore not “in proper form”. He argued that it was open to the primary judge, “and consistent with justice”, to have allowed the declarants to adopt their declarations orally under oath. It is true that it was open to the primary judge to admit Mr Kulatilake’s statutory declaration into evidence and/or to permit him to give oral evidence. Mr Muthu’s then counsel had informed the court that each of the declarants was available for cross-examination, albeit by telephone. There was no conceivable prejudice to Mr Pillay if Mr Muthu were permitted to call oral evidence from Mr Kulatilake.