Parker v HG Innovations Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Parker v HG Innovations Pty Ltd [2019] FCA 1291

Appeal from: Parker v HG Innovations& Ors [2019] FCCA 278
File number(s): QUD 133 of 2019
Judge(s): COLLIER J
Date of judgment: 16 August 2019
Catchwords: PRACTICE AND PROCEDURE - application for leave to appeal - s 340 Fair Work Act 2009 (Cth) - whether in all the circumstances primary decision attended by sufficient doubt to warrant reconsideration - whether prospect of substantial injustice if leave not granted - where costs ordered against applicant without reference to s 570 Fair Work Act - claim of denial of procedural fairness - whether evidence and submissions of applicant taken into account
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 570

Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Cases cited:

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; (1991) 104 ALR 621

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

Housing Commission of New South Wales v Tatmar Pastoral Company Pty Ltd [1983] 3 NSWLR 378

IFTC Broking Services Ltd v Commissioner of Taxation [2010] FCAFC 22

On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No.3) [2011] FCA 366; (2011) 279 ALR 341

Parker v HG Innovations [2019] FCCA 278

Shah & Akbarali v Barnet London Borough Council [1983] 2 AC 309

Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358

Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276

Ryan v Primesafe [2015] FCA 8; 323 ALR 107

Tatmar Pastoral Company Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155

Texts cited: M Beazley, P Vout and S Fitzgerald Appeals and Appellate Courts in Australia and New Zealand (Lexis Nexis, 2014) para 5.26
Date of hearing: 15 August 2019
Registry: Queensland
Division: Fair Work
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Mr R D Green
Solicitor for the Respondents: Shaw McDonald

ORDERS

QUD 133 of 2019
BETWEEN:

PHILIP PARKER

Applicant
AND:

HG INNOVATIONS PTY LTD (ACN 600 718 545)

First Respondent

ALPHA FINANCIAL SERVICES PTY LTD (ACN 600 685 845)

Second Respondent

RIDESHARE SOLUTIONS PTY LTD (ACN 624 040 366)

Third Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

16 AUGUST 2019

THE COURT ORDERS THAT:

1.Leave to appeal be granted from the decision of the Federal Circuit Court of Australia of 11 February 2019 in Parker v HG Innovations & Ors [2019] FCCA 278.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

  1. The applicant, Mr Parker, seeks leave to appeal from an interlocutory judgment of the Federal Circuit Court of Australia of 11 February 2019 in Parker v HG Innovations [2019] FCCA 278 wherein the primary Judge summarily dismissed…

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Details
Case
[2019] FCA 1291
Decision Date

CaseChat Overview and Summary

In the matter of Parker v HG Innovations Pty Ltd, the applicant, Mr Parker, applied for leave to appeal the decision of the Federal Circuit Court which dismissed his claim for unfair dismissal and procedural unfairness. The court was required to determine whether the primary decision was attended by sufficient doubt to warrant reconsideration and whether a substantial injustice would result if leave was not granted. Additionally, the court had to consider whether the primary judge considered all evidence and submissions of the applicant in reaching his decision.

The court found that there was a reasonably arguable case that Mr Parker was denied procedural fairness as the respondents did not file their written submissions as ordered by the court. The court also considered that there was a possibility that the primary judge did not have regard to Mr Parker's evidence and submissions supporting his claim of an employment relationship with the respondents. The court noted that it is not the duty of a judge to decide every matter raised in argument, but in this case, the court considered that the failure to file written submissions and the failure to consider the applicant's evidence and submissions may have resulted in a substantial injustice.

Accordingly, the court granted leave to appeal from the decision of the Federal Circuit Court. The court noted that the applicant had no reasonable prospects of successfully prosecuting his claim should the matter proceed to trial and that his claim was without merit. However, the court considered that the failure to file written submissions and the failure to consider the applicant's evidence and submissions may have resulted in a substantial injustice, and therefore, granted leave to appeal.

In conclusion, the court granted leave to appeal from the decision of the Federal Circuit Court in Parker v HG Innovations Pty Ltd. The court found that there was a reasonably arguable case that the primary decision was attended by sufficient doubt to warrant reconsideration and that a substantial injustice would result if leave was not granted. The court also considered that the failure to file written submissions and the failure to consider the applicant's evidence and submissions may have resulted in a substantial injustice. The court's decision was based on the circumstances of the case and the potential for prejudice to the applicant.

Orders

Orders of the court

1. Leave to appeal be granted from the decision of the Federal Circuit Court of Australia of 11 February 2019 in Parker v HG Innovations & Ors [2019] FCCA 278.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Relevantly, leave to appeal will be granted where in all the circumstances the decision at first instance is attended by sufficient doubt to warrant its reconsideration, and where substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; (1991) 104 ALR 621; Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358.BACKGROUND In an application filed in the Federal Circuit Court on 17 August 2018, Mr Parker had claimed declarations and compensation for alleged breach of s 340 of the Fair Work Act 2009 (Cth). Mr Parker claimed, inter alia, that he was an employee of one or all of the respondents because:·Mr Michael Gleeson offered him a position of General Manager of the first respondent at a meeting on 18 October 2017;·Mr Gleeson and Mr Parker also discussed engagement of Mr Parker as a broker and locum business manager with the second respondent, and on 21 October 2017 Mr Gleeson sent an email outlining a proposal for him to act as a contracted broker and receive a retainer for his employment with the first respondent;·Mr Parker caused an email to be sent to Mr Gleeson on 21 October 2017 asking questions of the contractor’s agreement but received no response;·Mr Parker began employment and attended work on or about 24 October 2017, and was provided a desk, stationery, access to various documents and a work phone;·Mr Parker was directed to answer calls and speak to customers obtaining referrals, and to arrange to rent cars owned by the first respondent to customers that could not be financed by the second respondent;·By 2 November 2018, it had become clear that he would not be provided with any opportunity to act as a broker, and that the Rideshare Management role was his sole employment role;·In a meeting in the following days Mr Gleeson showed Mr Parker an employment contract of a third party who had been a full time employee of the first respondent, and Mr Parker agreed that that would be the best way forward;·On 17 November 2018 Mr Parker and other staff were told by Mr Gleeson that they had no authority to act independently;·On 20 November 2018 Mr Gleeson told Mr Parker that he was to be a contractor paid by the second respondent even though the work he was doing was for the first respondent, or his employment would have to be terminated;·Mr Parker’s weekly payment continued on a regular weekly basis including sick days, public holidays and personal leave;·Mr Gleeson agreed that Mr Parker would be paid a commission each month referable to the total revenue he produced for the first respondent;·Mr Parker had access to company vehicles throughout the period of his employment, for the purposes of his role;·In his termination email Mr Gleeson said “Sounds like a job to me…”;·Mr Gleeson agreed to pay Mr Parker a period of notice; and·Mr Parker had no control over the entities controlled by Mr Gleeson which were paying his salary. Mr Parker also claimed:·He had complained to Mr Gleeson on 31 May 2018 because he believed that the respondents were unfairly subjecting him to unfair working hours; and·He was dismissed because of his complaint, in breach of his workplace rights under s 341 (1)(c)(ii) of the Fair Work Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Parker further submitted that, at the commencement of the hearing before the primary Judge, the respondents physically handed his Honour and Mr Parker their hard copy written submissions in support of the Application in a Case. Counsel for the respondents submitted that those submissions were the same as had been shown to Mr Parker on 5 November 2018. I am unable to form a view about this in the absence of evidence to this effect.DECISION OF THE PRIMARY JUDGE His Honour identified a key question as being whether, at material times, Mr Parker was an employee or contractor. His Honour examined cases discussing the characteristics distinguishing a person as being an employee as opposed to an independent contractor, in particular Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at [24], [43] and [44] and On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No.3) [2011] FCA 366; (2011) 279 ALR 341. His Honour noted:6.In evidence filed on behalf of the applicant, the applicant asserted that the nature of tasks performed by him ought to give rise to an inference that at all material times he was employed rather than acting independently as a contractor. He stated that he was provided with a desk, stationery, a work phone and that he was given access to computing and document systems. He said that he was given instructions as to how to perform various tasks, including the answering of telephone calls, speaking to customers, obtaining referrals, and arranging the rental of cars owned by the parent company HG Holdings Pty Ltd to the subsidiary third respondent and other entities. All of those allegations are not contested by the respondents, but rather, the respondents submit that those indicia alone, with others, are not probative of the applicant being an employee. His Honour noted that the applicant and Mr Michael Gleeson, a director of each of the respondents, first spoke concerning the applicant’s possible involvement in Mr Gleeson’s businesses on or about 11 October 2017, and that the documentary evidence adduced on behalf of the respondents in the affidavit of Michael Gleeson filed on 4 October 2018 (which his Honour summarised at length) painted a different picture to that asserted by the applicant. His Honour concluded:9.It is a question of fact, in any given situation, whether a person is an employee or a contractor. In this case, the applicant, during the entirety of his period of engagement with the respondents, either made it clear that he was content to be regarded as a contractor, or actively promoted himself as an independent contractor. He was damned by his own words in that regard. His claims to the contrary are a contrivance. His whole engagement was in the nature of the provision by him of services as part of a personal services business.10.To the extent that the applicant, on occasion, adverted to his possibly wanting to arrange his affairs vis a vis the company differently, either by utilising a company, trust, or partnership structure, the use of each was inconsistent with him being an employee as opposed to an independent contractor. The arrangement that the applicant had with Mr Gleeson was that he would be remunerated by way of the payment of a weekly retainer, supplemented by the payment of commission, whilst carrying on the business of a sole trader under his registered business name in and for that business as the representative of that business. 11.The applicant has no reasonable prospects of successfully prosecuting his claim should the matter proceed to trial. His claim is without merit and, in the exercise of the court’s discretion, is summarily dismissed in its entirety.12.The respondents have succeeded in resisting the applicant’s claims. Costs ought properly to follow the event.(Footnotes omitted.) THE APPLICATION FOR LEAVE TO APPEAL

Ratio Decidendi

Legal Principle Established

At the hearing before me Mr Parker appeared in person. The respondents were represented by Counsel.CONSIDERATION In my view leave to appeal against the decision of the Federal Circuit Court should be granted. I have formed this view for the following reasons. In respect of the question whether the primary judgment is attended by sufficient doubt to warrant its reconsideration, I note first that there appears to be substance to Mr Parker’s claim that he was denied procedural fairness in circumstances where:·The respondents’ written submissions were never filed;·This failure was itself in contravention of the orders of the Federal Circuit Court of 5 November 2018;·The primary Judge accepted the respondents’ written submissions on the day of the hearing and proceeded to hear the case having regard to those submissions;·The applicant had no opportunity to examine the respondents’ written submissions prior to hearing and properly address them;·It is not in dispute that the applicant was unaware – and could have no reason to be aware – that the hard copy version of the respondents’ written submissions that he had returned to their Counsel on 5 November 2018 were the same submissions that the respondents would ultimately rely on at the hearing before the primary Judge;·Mr Parker was not legally represented; and·It is not disputed that Mr Parker had raised the issue of contravention of orders by the respondents in respect of their failure to file written submissions, and fairness, before the primary Judge at the hearing. I consider there to be a reasonably arguable case that the likelihood of prejudice to Mr Parker in those circumstances was high, noting in particular that Mr Parker was a litigant in person who had complied with the Court’s directions and had every reason to expect that the Federal Circuit Court would require the respondents to similarly comply. Second, while his Honour refers in detail in the primary judgment to authorities and legal principles relevant to a determination of whether an employment relationship exists, I consider that Mr Parker has a reasonably arguable case that the primary Judge did not have regard to Mr Parker’s evidence and/or written submissions supporting Mr Parker’s claim of an employment relationship with one or more of the respondents. The mere absence of reference by the Court to evidence or issues raised by a party does not necessarily mean that the Court has failed to have regard to that evidence or those issues: I note for example the following observations of the Court of Appeal of New South Wales in Housing Commission of New South Wales v Tatmar Pastoral Company Pty Ltd [1983] 3 NSWLR 378 at [385]-[386]:In order to determine this submission, it is necessary to consider what is the duty of a judge in this regard and whether the learned judge, in this case, discharged that duty. There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law…However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex F parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.