Parker v HG Innovations - [2019] FCCA 278

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKER v HG INNOVATIONS & ORS

[2019] FCCA 278

Catchwords:
INDUSTRIAL LAW – FAIR WORK – Claim for declarations and compensation for alleged breach of s.340 of Fair Work Act 2009 – result of claim dependent upon whether applicant was employee or contractor – indicia of employment absent on the facts of the case as a whole – correspondence authored by applicant consistently determinative of applicant being a contractor – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342, 365, 545, 546

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Cases cited:

Fair Work Ombudsman v Greenan [2017] FCCA 1453
Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499

Hollis v Vabu Pty Ltd [2001] 207 CLR 21
Austin v Honeywell Ltd [2013] 277 FLR 372
On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No.3) (2011) 83 ATR 137

Applicant:

PHILIP PARKER

First Respondent:

HG INNOVATIONS PTY LTD

Second Respondent:

ALPHA FINANCIAL SERVICES PTY LTD

Third Respondent:

RIDESHARE SOLUTIONS PTY LTD

File Number:

BRG 857 of 2018

Judgment of:

Judge Egan

Hearing date:

7 February 2019

Date of Last Submission:

7 February 2019

Delivered at:

Brisbane

Delivered on:

11 February 2019

REPRESENTATION

Applicant:

Self-Represented

Counsel for the Respondents:

Mr R. Green

Solicitors for the Respondents:

Shaw McDonald Lawyers

ORDERS

IT IS ORDERED THAT:

The application filed on 17 August 2018 be dismissed.
The applicant pay the respondent’s costs of and incidental to the proceeding as agreed or failing agreement as assessed on the Federal Circuit Court Scale of Costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 857 of 2018

PHILIP PARKER

Applicant

And

HG INNOVATIONS PTY LTD

First Respondent

ALPHA FINANCIAL SERVICES PTY LTD

Second Respondent

RIDESHARE SOLUTIONS PTY LTD

Third Respondent

REASONS FOR JUDGMENT

By an originating application filed on 17 August 2018 the applicant sought declarations and orders, each of which was dependent upon the court finding that at all relevant times the applicant was an employee as opposed to an independent contractor.
By an application in a case filed on 4 October 2018, the respondent’s sought an order that judgment be entered against the applicant on the whole of his claim pursuant to the provisions of section 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the Act’). Section 17A of the Act provides as follows:
Summary Judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 278
Decision Date: 11 February 2019

CaseChat Overview and Summary

In *Parker v HG Innovations*, the applicant, Parker, brought a claim in the Federal Court of Australia seeking declarations and compensation for an alleged breach of section 340 of the *Fair Work Act 2009* (Cth). The central dispute between Parker and HG Innovations concerned the applicant's employment status, specifically whether Parker was an employee or an independent contractor. The outcome of the claim was entirely dependent on this determination.

The court was required to determine whether Parker was an employee of HG Innovations for the purposes of the *Fair Work Act 2009*. This involved an assessment of the various indicia of employment against the factual circumstances of the relationship between the parties.

Judge Egan found that the indicia of employment were absent when considering the case as a whole. The court placed significant weight on correspondence authored by the applicant, which consistently indicated that Parker was engaged as a contractor. Based on this evidence, the court concluded that Parker was not an employee. Consequently, the application was dismissed.

Orders