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
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:
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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- Case
- [2019] FCA 1291
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.