Nield v Mathieson
[2014] FCA 29
•4 February 2014
FEDERAL COURT OF AUSTRALIA
Nield v Mathieson [2014] FCA 29
Citation: Nield v Mathieson [2014] FCA 29 Appeal from: Mathieson v South End Mixed Business
[2013] FCCA 1749Parties: MARJORIE JEAN NIELD and KETH GEORGE NIELD v BETH LENNESE MATHIESON File number: VID 30 of 2014 Judge: JESSUP J Date of judgment: 4 February 2014 Catchwords: APPEAL AND NEW TRIAL – Application for leave to appeal – Orders which, though interlocutory, were substantive ones having final effect Date of hearing: 30 January 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicants: Mr M McKenney Solicitor for the Applicants: Garden & Green Lawyers Counsel for the Respondent: Mr J McKenna Solicitor for the Respondent: Beck Legal
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 30 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MARJORIE JEAN NIELD
First ApplicantKETH GEORGE NIELD
Second ApplicantAND: BETH LENNESE MATHIESON
Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
4 FEBRUARY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicants have leave to appeal from Orders 1, 2 and 3 made by the Federal Circuit Court of Australia in proceeding MLG 650/2012 on 23 December 2013, such appeal to be filed by 4.00 pm on 4 February 2014.
2.The operation of Orders 1, 2 or 3 made by the Federal Circuit Court on 23 December 2013 be stayed pending the hearing and determination of an appeal lodged pursuant to the leave granted above.
3.Subject to any order made by the Full Court, the costs of the application for leave to appeal be reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 30 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MARJORIE JEAN NIELD
First ApplicantKETH GEORGE NIELD
Second ApplicantAND: BETH LENNESE MATHIESON
Respondent
JUDGE:
JESSUP J
DATE:
4 FEBRUARY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
I think this is a case in which leave to appeal should be granted.
The application for leave is made out of an abundance of caution. There is a view that, in a case such as the present, where orders having final substantive effect have been made, the party disadvantaged by those orders would have an appeal as of right. However, since it appears that there are a number of questions and matters which are still to be addressed by the Federal Circuit Court in this matter, the view has been taken that the orders the subject of the present application, made on 23 December 2013, may be regarded as interlocutory ones. That is the assumption upon which the present application has proceeded.
In an application of this kind there are two questions to be addressed: first, whether the judgment sought to be appealed from is attended by sufficient doubt to warrant the attention of the Full Court, and secondly, whether, assuming an affirmative answer to the first question, serious injustice would be occasioned to the intending appellant if the judgment below were incorrect but leave to appeal were refused.
The case involved an allegation that there was an employment relationship between the now respondent and the now applicants. The respondent worked in the applicants’ shop for a considerable time, and did so either without remuneration or with forms and amounts of remuneration which would not have satisfied the requirements of the applicable industrial award, assuming that the respondent was an employee of the applicants. The learned Judge below held that she was such an employee, and made orders based upon the applicable award which would, when interest is included, leave the applicants with a pecuniary obligation to the respondent in excess of $450,000.
It was a most unusual case, because of the closeness of the personal relationship between the parties, at least until they ultimately fell out, because of the way in which the respondent was benefitted, if I could use a neutral term, in return for the work which she performed in the applicants’ business, because of the respondent’s apparent willingness to continue with this arrangement, and because of the circumstance that the respondent was, for most of the period it seems, in receipt of social welfare payments which were based upon a state of affairs in which she was taken to be unemployed.
Having considered the careful reasons of the learned Judge below, I take the view that those reasons would benefit from the attention of the Full Court, in respects which have been foreshadowed in the draft notice of appeal filed on behalf of the applicants. I do not suggest that the result of any such attention would be adverse to the respondent, but I do get the sense from his Honour’s reasons that there are difficult issues, both factual and legal, which might well be examined closely by a Full Court.
That of itself would not be sufficient to grant leave to appeal, but the other circumstance, that of substantial injustice, is one which speaks very loudly in favour of the grant of leave. As will be apparent from the exchanges which I have had with counsel this morning, the fact that the orders made by his Honour were substantive ones having a final effect and require the payment to the respondent of a very substantial sum of money, and the fact that it is not common ground that the applicants would be in a position to challenge those orders by an appeal lodged subsequently if they were not now given leave to appeal, strongly support the conclusion, which I draw, that substantial injustice would be caused to the respondents if they were forever deprived of the opportunity to challenge on the merits a judgment which, in other procedural circumstances, would have left them with an appeal as of right.
The order I make is that the applicants have leave to appeal from the orders made by the Federal Circuit Court of Australia in proceeding (P)MLG 650/2012 on 23 December 2013.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 11 February 2014
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