Patankar v Excom Education Pty Limited
[2008] FCA 475
•10 April 2008
FEDERAL COURT OF AUSTRALIA
Patankar v Excom Education Pty Limited [2008] FCA 475
TRADE PRACTICES – allegation of breach of s 52 and s 53B Trade Practices Act 1974 (Cth) – allegation of misleading representation of legal capacity to sponsor holder of a subclass 457 visa – whether representations made – where representations not made – no breach
CONTRACT – alleged breach of contract of employment – clause too uncertain to create legal obligation – no evidentiary support for alleged oral term of contract or alleged warranty
NEGLIGENT MISSTATEMENT – reliance on alleged representations – where statement found not to be made – no negligence
HELD – application dismissed
Trade Practices Act 1974 (Cth) ss 52 53B, 75B, 82, 87
Bishop v Taylor (1968) 118 CLR 518 cited
Whitlock v Brew (1968) 118 CLR 445 citedJAYANT PATANKAR v EXCOM EDUCATION PTY LIMITED, GRAEME NEWEY AND BETRAND BREGANZA
NSD 2504 OF 2006
BRANSON J
10 APRIL 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2504 OF 2006
BETWEEN:
JAYANT PATANKAR
ApplicantAND:
EXCOM EDUCATION PTY LIMITED
First RespondentGRAEME NEWEY
Second RespondentBETRAND BREGANZA
Third Respondent
JUDGE:
BRANSON J
DATE OF ORDER:
10 APRIL 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondents’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2504 OF 2006
BETWEEN:
JAYANT PATANKAR
ApplicantAND:
EXCOM EDUCATION PTY LIMITED
First RespondentGRAEME NEWEY
Second RespondentBETRAND BREGANZA
Third Respondent
JUDGE:
BRANSON J
DATE:
10 APRIL 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Mr Patankar”), a citizen of India, is a qualified architect who is additionally skilled in information technology (“IT”). In May 2001 Mr Patankar was granted a subclass 457 visa. In February 2003 he was granted a fresh subclass 457 visa. At the time that he received the second of these visas he was advised by the Department of Immigration and Multicultural Affairs (“DIMIA”) that if he wished to change his employer he was required to apply for a new subclass 457 visa.
In June 2003 Mr Patankar became an employee in Australia of the first respondent (“Excom”) in circumstances that are in dispute but which resulted in a breach of the conditions of his visa.
In this proceeding Mr Patankar makes claims under the Trade Practices Act 1974 (Cth) (“the TPA”), in the tort of negligent misstatement and for breach of contract for damage allegedly suffered by him as a result of the breach of the conditions of his visa. It is not in dispute that Mr Patankar has not held a visa authorising him to work in Australia since, at the latest, August 2003.
BACKGROUND FACTS
Mr Patankar spent approximately six months in Australia in 1998, and again in 2000, on each occasion having entered Australia on a tourist visa. On 14 May 2001 he received advice from the Australian Consulate General in Mumbai, India, that he had been granted a subclass 457 visa which permitted him to travel to, enter and remain in, Australia until 14 May 2005. He was further advised that his visa was subject to the condition that “[t]he holder must not change employer or occupation in Australia without the permission in writing of the Secretary” (visa condition 8107). The employer who had sponsored Mr Patankar for the purpose of his subclass 457 visa was Educom Australia (Educom).
In late 2002 Educom went into administration and Mr Patankar was made redundant. In early 2003 he approached Consultants Exchange Australasia Pty Limited (“CXC”) to become his work visa sponsors. CXC was approved by the DIMIA as a subclass 457 visa sponsor.
By a letter dated 20 February 2003 from DIMIA, Mr Patankar received advice that his application for a subclass 457 visa to work for CXC as an Information Technology Manager had been approved subject to the conditions that he must not:
·cease to be employed by the sponsoring employer; or
·work in a position or occupation inconsistent with the approved position or occupation; or
·engage in work for another person or for himself while working for the sponsoring employer.
The letter advised:
If you wish to change employer, you must apply for a new subclass 457 visa and meet the requirements at that time…Failure to apply for a new visa may result in cancellation of your visa and removal from Australia of you and any family members.
Mr Patankar gave evidence that when he received this letter he read and understood the conditions to which his visa was subject.
CXC was a contractor management company; that is, it provided a corporate structure whereby third parties could engage the services of contractors while they remained on the payroll of CXC. CXC operated on the basis that it was each contractor’s own responsibility to find a third party who wished to engage his or her services. Once a contractor had identified a third party who required his or her services, a tripartite agreement was entered into between CXC, the third party and the consultant pursuant to which CXC received all payments made in respect of work undertaken by the consultant. It appears that the remuneration paid to the consultant by CXC was, in effect, the amount paid to CXC less a “management fee” of 4.5%. The standard tripartite agreement provided that upon receipt from the consultant of time-sheets approved and signed by the third party’s manager, CXC would submit to the third party invoices on which, unless otherwise agreed in writing, payment would be due in seven days from the date of the invoice.
Notwithstanding that it was not until 20 February 2003 that Mr Patankar learnt that his application for a subclass 457 visa to work for CXC had been approved, he does not dispute that he was paid by CXC for the pay period starting on 6 January 2003 and ending on 26 January 2003 and also for the pay period commencing on 27 January 2003 and ending on 9 February 2003. Indeed, it appears that no payment was received by Mr Patankar from CXC later than 28 February 2003. Mr Patankar left Australia on 2 March 2003 and did not return until 2 June 2003.
In early June 2003 Mr Patankar responded to a job advertisement placed by Excom. He attended a job interview with the third respondent (Mr Braganza) on 6 June 2003. At this time Mr Braganza was the NSW Training Manager for Excom. Mr Patankar attended a second interview on about 10 June 2003. Mr Braganza was present throughout the second interview and the second respondent (Mr Newey) was present for part of that interview. At this time Mr Newey was a director of Excom and its NSW Branch Manager. There is serious conflict between the parties as to what was said during the course of these two interviews. My findings on this issue are set out below (see [54]-[60]).
It is not in dispute that on 12 June 2003 Mr Braganza gave Mr Patankar a letter which offered him the position of Technical Systems Instructor for Excom on terms and conditions set out in that letter. The letter stated that the commencement date for his employment was Monday 16 June 2003. The terms and conditions set out in the letter included provision for annual leave, sick leave and long service leave; restraint on involvement with any other similar business; performance review; and monthly payment of remuneration by way of automatic transfer on Excom’s usual pay day. That is, the terms and conditions were consistent with Mr Patankar being offered a position as an employee of Excom rather than a consultancy while remaining employed by CXC.
The provisions of the letter concerning performance review commenced with the statement: “Your performance is of critical importance to the Company, and we are committed to assisting you to [achieve] your potential and the goals agreed with the Company”. The letter included the following statement under the heading “Completeness”:
This letter of appointment and your position description, together with all rules and policies, as notified from time to time, represent a full record of the terms and conditions of employment and replace all previous written contracts or agreements and understandings (if any).
Mr Patankar gave evidence that he took the offer of employment home, thought the offer through and was keen to accept it. He went to Excom’s office on 13 June 2003 and signed the letter of offer in the presence of Mr Hope, Operations Manager for Excom. He observed Mr Braganza sign the letter for Excom.
On 16 June 2003 Mr Patankar started work at Excom. On that day he completed and signed an “Employee Details” form, a form headed “Bank Authority Details” giving details of his bank account and an Australian Taxation Office form headed “Tax File Number Declaration”. Excom made a payment of salary directly into Mr Patankar’s bank account on 30 June 2003.
There is a dispute on the evidence as to when Mr Newey learnt that Excom had made a salary payment to Mr Patankar. Mr Patankar gave evidence that he complained to Mr Newey on 1 July 2003about the payment being made. I prefer Mr Newey’s evidence that he learnt of the payment during the second half of July 2003. It is not in dispute that on 7 August 2003 Mr Newey, in the presence of Mr Patankar, telephoned DIMIA and advised that Excom had employed Mr Patankar in breach of the conditions of his subclass 457 visa. On the same day Excom, on the advice of DIMIA, terminated Mr Patankar’s employment with immediate effect.
PLEADINGS
Trade Practices Act
Mr Patankar’s claim that Excom breached s 52 and s 53B of the TPA is based upon allegations that untrue representations were made to him at the first and second job interviews. Those representations are pleaded in paras 12 and 19 of the amended statement of claim (Statement of Claim). Those paragraphs are in the following form:
12.During the first job interview, the Third Respondent made the following representation (‘the first representation’) on behalf of the First Respondent to the Applicant in relation to the advertised position of Technical Systems Instructor:. The third Respondent told the Applicant that the First Respondent would sponsor the Applicant on his work visa. The Third Respondent told the Applicant that the First Respondent was in a position to sponsor the applicant on a work visa in relation to the position of Technical Systems Instructor. The Third Respondent also told the Applicant that his was not the only work visa to be taken over and that there were four other such work visa candidates whose transfer applications the First Respondent had to file with DIMIA; the Third Respondent informed the applicant that the Melbourne office of the First Respondent had been entrusted with this job. The Third Respondent told the Applicant that he would have to await their instructions and directions before taking any action on the transfer of his work visa from cXc to Excom Education.
The first representation
The First Respondent represented to the Applicant that the First Respondent had the legal capacity to sponsor the applicant on a Subclass 457 Visa as at the time that the First Respondent made the offer of employment to the Applicant in June 2003.
…
19.During the second job interview, the Second and Third Respondents made the following representation (‘the second representation’) on behalf of the First Respondent to the Applicant in relation to the position of Technical Systems Instructor:
The second representation
The First Respondent represented to the Applicant that the First Respondent had the legal capacity to sponsor the Applicant on a Subclass 457 Visa in June 2003. The Second and Third Respondents told the Applicant that the First Respondent had the legal capacity to sponsor him on a subclass 457 Visa.
(passages in bold are underlined in original)I have assumed that the emphasised portions of the above paragraphs, which were inserted by amendment, refer to the alleged factual circumstances said to give rise to the pleaded representations.
It is pleaded that each of Mr Newey and Mr Braganza was involved in Excom’s contraventions of the TPA within the meaning of s 75B of the TPA.
Tort of Negligent Misstatement
Mr Patankar’s case is also pleaded as a case of loss, injury and damage caused by the respondents’ negligent misstatements. The relevant statements are those identified in paragraphs 12 and 19 of the Statement of Claim. It is pleaded that those statements were made in circumstances where the respondents owed Mr Patankar a duty to provide truthful information in relation to Excom’s legal capacity to sponsor Mr Patankar under a subclass 457 visa.
Breach of Contract
Mr Patankar’s case in contract is pleaded to arise from his acceptance of the offer of employment made by Excom as set out in the letter dated 12 June 2003. Paragraphs 27 and 28 of the Statement of Claim makes the following allegations:
27.It was further an express verbal condition of the contract of employment offered by the First Respondent to the Applicant that the First Respondent would do all things necessary to arrange for the lawful and expeditious transfer of cXc’s visa sponsorship of the Applicant from cXc to the First Respondent and that the First Respondent would execute a tripartite agreement with cXc and the Applicant for the purpose of allowing cXc to provide the Applicant’s services to the First Respondent until such time as the First Respondent obtained approval from DIMIA to sponsor the Applicant on his Subclass 457 Visa.
28.It was further an express or implied term or warranty, or both, of the contract of employment offered by the First Respondent to the Applicant that the First Respondent would at all times be eligible to sponsor the Applicant on a Subclass 457 Visa prior to commencing to pay the Applicant the agreed remuneration payable under the contract of employment.
Additionally it is pleaded that on 13 June 2003 CXC advised Excom that Excom, Mr Patankar and CXC would be required to execute a tripartite agreement so as to provide for Mr Patankar to remain on the payroll of CXC until any application by Excom to sponsor Mr Patankar was approved by DIMIA. The allegation is made that Excom “did not demur from the advice received from CXC”.
The pleaded particulars of alleged breach of contract are as follows:
(a)The First Respondent failed to assist the Applicant [to] achieve his potential and goals agreed with the First Respondent in breach of clause 24 of the offer of employment pleaded in paragraphs 26 above;
(b)The First Respondent failed to execute a tripartite agreement with cXc and the Applicant which was contrary to the condition pleaded at paragraph 27 above;
(b)The First Respondent breached the term of warranty pleaded at paragraph 28 above in that the First Respondent was not at any time between 13 June 2003 and no earlier than 5 August 2003 an eligible sponsor employer for the Applicant for the purposes of sponsoring the Applicant on a Subclass 457 Visa;
(c)The First Respondent breached the condition, term or warranty pleaded at paragraph 27 and 28 above by paying the Applicant a salary payment directly on or about 30 June 2003.
EVIDENCE RE THE FIRST INTERVIEW
Mr Newey gave evidence that, ahead of Mr Patankar’s first job interview, he had advised Mr Braganza that Excom was in the process of applying to DIMIA for visa sponsorship status approval and that Excom would be able to sponsor people when this process was complete. He also gave evidence that at this time he was handling all employment visa related matters and that Mr Braganza was accustomed to refer the discussion of such matters to him. He said that, while aware that Excom could enter into a tripartite agreement with another organisation that had sponsorship status approval, by June 2003 he had dismissed the option of using tripartite agreements for the following reasons:
(1)the legal and administrative overheads of such arrangements had proven prohibitive in the past; and
(2)to ensure that the distinctive culture of Excom was maintained, Excom preferred long term permanent employees to contractors – especially for positions of technical instructors.
Mr Patankar gave affidavit evidence that at the first interview he and Mr Braganza had a conversation to the following effect:
JP“Bertrand, I’m on a work visa sponsored by CXC. They bill the client for my services and then they pay me. A tripartite agreement executed between me, the company that wanted to avail of my services, and CXC makes this easily possible for any company to avail of my training services.”
BB“You should be willing to work as an employee of Excom, and not as a contractor.”
JP“Then my work visa sponsorship would have to be taken over by Excom, from CXC. It will involve both myself and Excom independently applying to DIMIA for sponsorship approval. At least, that has been my experience in the past.”
BB“OK, Excom Education will sponsor your work visa. Our Melbourne office will handle your visa, so you should wait to hear from them before you write to DIMIA, OK?”
JP“OK. Fine.”
BB“However you should be willing to bear the expense of the work visa transfer application.”
JP“I see. How much will that be?”
BB“It shouldn’t be more than one thousand dollars (Australian).”
JP“Well, OK. I should be able to pay that.”
Mr Patankar further gave affidavit evidence that Mr Braganza said the following at the first interview:
(a)“I intend to offer you the position of Technical Systems Instructor here at Excom Education; however, this will be subject to both CXC and yourself agreeing to transfer your work visa sponsorship from CXC to Excom Education”;
(b)“Excom Education will be able to take over your visa sponsorship, you don’t need to worry about that”;
(c)“You are not the only applicant whose work visa is to be taken over; there are four other such work visa candidates whose transfer applications Excom Education will have to file with DIMIA”; and
(d)“Our Melbourne office of Excom Education will be handling the transfer applications; you will need to await their instructions and directions about it”.
Under cross-examination Mr Patankar insisted that it was “standard” for him to tell a potential employer that he was on a visa sponsored by CXC and that he told Mr Braganza this at the first interview. When asked to identify the number of previous employers to whom he had given this information Mr Patankar identified two employers – although he later clarified that he probably had not actually worked for the second of those employers (see [46] below).
Mr Braganza did not claim to have a detailed recollection of the first interview. He gave affidavit and oral evidence that it was Excom’s standard procedure in Sydney at the time to conduct at least two interviews before a candidate was offered a job. He said that it was his practice to conduct the first interview alone to access the candidate’s technical abilities and classroom skills and, if the candidate performed sufficiently well, he would arrange a second interview at which Mr Newey would ordinarily also be present. He said that he did not make a job offer before the second interview.
Mr Braganza gave affidavit evidence that he was not in a position to commit Excom to sponsor Mr Patankar’s work visa; he was not involved in dealing with work visas and was not familiar with the process involved; and he understood at Excom it was Mr Newey who was responsible for work visa issues. He said that he did not know in June 2003 precisely what visa Mr Patankar held or the conditions of his visa. He further said that he did not know in June 2003 whether or not Mr Patankar would breach his visa conditions were he to accept an offer of employment from Excom. He understood that a visa holder was responsible for complying with the conditions of his or her visa and that he did not ever see Mr Patankar’s visa or a copy of its conditions. I interpolate that it is not in dispute that Mr Patankar’s visa was at all relevant times held by CXC.
Mr Braganza gave oral evidence that he did not remember one way or the other whether Mr Patankar raised his visa status at his first interview. However, subject to the matters identified below, he was adamant that the conversation of which Mr Patankar gave evidence did not occur (see [23]-[24] above). Mr Braganza agreed that he told Mr Patankar that he should be willing to work as an employee and not as a contractor. He said that he did not have a recollection one way or the other about whether Mr Patankar said to him: “then my work visa sponsorship would have to be taken over by Excom from CXC”. He agreed that he could have said to Mr Patankar at the first interview that he intended to offer him the position of Technical Systems Instructor at Excom.
EVIDENCE RE THE SECOND INTERVIEW
Mr Patankar’s affidavit evidence was that at his second job interview he had a conversation with Mr Braganza in which words to the following effect were said:
BB“We want to offer you the position of Technical Systems Instructor. Your remuneration will be at the amount of $76,300 per annum gross. Following your accepting the offer of employment, we will begin the Visa transfer process.”
JP“I will only be able to accept your offer of employment if you can confirm that you have the capacity to sponsor my work visa.”
BB“Yes, we can do that, not a problem.”
JP“The transfer involves my current employer releasing me as an employee first, only then can Excom sponsor me. Steve Lowe [sic], my account manager at CXC will co‑ordinate the work visa transfer from CXC to Excom.”
BB“I have heard from Steve. Excom Education will manage your work visa transfer from our Melbourne Office.”
In oral evidence Mr Patankar clarified that he did not assert that Mr Newey was present during the above conversation.
Mr Patankar’s oral evidence was that during the second interview he must have briefly “touched base” on the issue of the tripartite agreement. He denied that Mr Newey told him before he commenced employment with Excom on 16 June 2003 that Excom was still in the process of obtaining approval to sponsor applicants for work visas.
Mr Braganza accepted that he offered Mr Patankar the position of Technical Systems Instructor. He said that the proposed remuneration was $70,000 per annum plus 9% compulsory superannuation payable monthly. However, he denied that Mr Patankar said that he would only be able to accept the offer if Excom could confirm that it had the capacity to sponsor his work visa. I interpolate that it is not in dispute that Excom did not then have that capacity. Mr Braganza also denied that any of the rest of the alleged conversation set out in [29] above occurred.
EVENTS AFTER ACCEPTANCE OF EMPLOYMENT
Mr Patankar gave evidence that he believed that CXC had explained to Excom the importance of Excom paying him through CXC until DIMIA had approved and completed the transfer of his work visa to Excom. He further claimed that he envisaged that at the “appropriate time” a written application to DIMIA would be submitted by Excom to initiate the transfer of his work visa to Excom.
By contrast, Mr Braganza gave evidence that Mr Patankar did not tell him that, notwithstanding that he accepted the offer of employment contained in the letter of 12 June 2003, Mr Patankar wished to remain on the payroll of CXC. Mr Braganza also gave evidence that at no time before Excom first made a payment of salary to Mr Patankar was he told by Mr Patankar, or anyone else, that Mr Patankar might be in breach of his visa conditions if he accepted Excom’s offer of employment, commenced to work for Excom or received monthly payments from Excom.
Mr Patankar gave evidence that between 16 June 2003 and 1 July 2003 he spoke to Mr Braganza on a number of occasions concerning the tripartite agreement. He claimed that on one of these occasions he had a conversation with Mr Braganza to the following effect:
JP“Have you received the tripartite agreement from Steve Lowe [sic]?”
BB“Yes I have been in contact with Steve Lowe [sic]. He sent me the agreement by email.”
JP“That is the tripartite agreement, which needs to be signed. When can I sign it? How’s my application for the transfer of my sponsorship going?”
BB“Our Melbourne office is handling that; it will come to you from the Melbourne office. You know there are another four applications which are being processed at the same time as yours.”
Mr Braganza denied the above conversation and additionally gave evidence that he had no recollection of Mr Low, or anyone at CXC, sending him a tripartite agreement by email between 16 June 2003 and 1 July 2003. Additionally, Mr Braganza gave evidence that he has never spoken with Mr Low.
Mr Low, who is employed by CXC as a Business Development Manager, gave evidence on behalf of Mr Patankar. His affidavit evidence was that in early June 2003 Mr Patankar told him that he had attended a job interview with Excom and that immediately thereafter, at Mr Patankar’s request, he telephoned Mr Braganza. He deposed to a conversation between them to the following effect:
SL“Jayant has advised me that you have offered him a position at Excom Education and he has asked me to contact you to explain the arrangements that are required until his visa is transferred.”
BB“Yes, Jayant has advised me about the tripartite agreement, but Excom Education proposed to employ Jayant directly and as an employee of Excom. We are willing to take over his visa sponsorship so that this can happen.”
SL“That’s fine, however, it is essential that a tripartite agreement is entered into whilst Jayant’s visa is in the process of being transferred. Jayant must remain on the payroll of CXC to meet his visa conditions. The tripartite agreement enables Jayant to work for you whilst being payrolled through CXC so as to remain under CXC’s sponsorship till such time as his sponsorship is transferred to Excom.”
Mr Low further gave affidavit evidence that a conversation between him and Mr Braganza to the following effect took place possibly one or two days later:
SL“I am following up from our previous conversation. As I advised, a tripartite agreement will need to be executed before Jayant can start work at Excom Education, as Jayant must remain payrolled through CXC until his visa is transferred. I can email you a short copy of the contract.”
BB“We would prefer to use our own contract. I will arrange for that to be sent to your office.”
SL“I will await the contract then.”
Mr Low said that when he did not receive a tripartite contract from Excom he assumed that Mr Patankar’s visa had been successfully transferred and that he was working for Excom directly. He acknowledged that he received an email from Mr Patankar on 23 July 2003 in which Mr Patankar asked him for the tripartite agreement and that he replied:
Jayant
Our 3 way Contract. It is just a standard contract that can be changed by you.
Regards
Steve LowMr Newey gave evidence that he had no contemporaneous knowledge of Mr Braganza giving Mr Patankar the formal letter of offer dated 12 June 2003 or of Mr Patankar accepting the offer on 13 June 2003. I accept this evidence. Excom’s application for approval as a sponsor for subclass 457 visas had not then been approved. I am confident that in this circumstance Mr Newey would not have wittingly allowed Excom to engage an employee in breach of the employee’s visa conditions. This assessment finds support in Mr Newey’s later conduct which is referred to in [40]-[42] below. I conclude that there was a break‑down in communication and understanding between Mr Newey and Mr Braganza concerning Mr Patankar’s employment. Mr Newey envisaged that an offer of employment would be made to Mr Patankar after Excom’s application for approval as a sponsor for subclass 457 visas was approved; Mr Braganza apparently failed to appreciate the need to await that approval.
Mr Newey further gave evidence that prior to Mr Patankar commencing employment with Excom on 16 June 2003 he spoke to Mr Patankar in words to the following effect:
Until our sponsorship approval comes through, EXCOM can’t formally employ you. I suggest one possible way to make the best use of the time before then would be to have you undertake preparation for the courses you will be teaching when you join EXCOM. We’ll make available for you the use of EXCOM’s facilities, including course materials, software, and an EXCOM e-mail account so you may undertake this preparation. This will be to both our benefit, as you will be able to update your accreditations so that when you commence there will be less delay for you to get up to speed to be able to deliver courses.
Mr Newey said that he arranged with Mr Braganza to have Excom facilities made available to Mr Patankar and for Mr Patankar to attend a training session with other instructors at the end of June 2003. He further said that he did not become aware until late July 2003 that Mr Patankar had been employed by Excom despite his not having the appropriate work visa. In early August 2003, in conjunction with Mr Patankar, he notified DIMIA and subsequently complied with the Department’s directions to terminate Mr Patankar’s employment.
By letter dated 2 October 2003, Mr Newey wrote to a DIMIA officer concerning Mr Patankar. I accept his evidence that he endeavoured to put Mr Patankar’s position to the Department in the best light that he could. I also conclude that Mr Newey was anxious to ensure that Excom’s own reputation was not diminished in the eyes of DIMIA. These two factors, I find, probably caused Mr Newey to depart a little from the strict truth in drafting the letter although he, albeit somewhat half-heartedly, denied this. The letter included the following passage:
At the time which we were looking to employ Mr Patankar we were also in the process of applying for approval for business sponsorship for a small number of personnel. Given the pending result of this application – which has since been approved – we were simultaneously investigating options for Mr Patankar to work with us under a tri-partite arrangement through Consultancy Exchange Australasia, or directly with EXCOM following approval of our sponsorship status.
We are aware Mr. Patankar had informed his previous nominator, Consultancy Exchange Australasia (CXC), of his intentions to accept an employment offer made by our company. We are also aware that he asked for their instructions and advice on what needed to be done. Also, our office communicated with CXC on a few occasions with regards to employment arrangements being made for Mr. Patankar to work for us through CXC as this was one of the options we were assessing, and our office was contacted by CXC to follow up on certain contracts which were required for Mr. Patankar to be eligible to work in our company. Mr. Patankar himself also called our offices to check up on requirements being met.
Unfortunately one of our managers who was handling this matter was not fully aware of the complexities and all the consequences of such a matter, and he mistakenly thought that all was taken care of, thus providing a green light for Mr. Patankar to commence work for us. …
CREDIBILITY
Mr Patankar
I do not accept Mr Patankar as an entirely truthful witness. Nearly five years have passed since the events of which he gave evidence. Some of his evidence might be explained by his having, over that period, reconstructed his recall in a way which shifts to others the responsibility for his Australian visa problems. In some other regards I am satisfied that he sought to mislead the Court.
Mr Patankar gave confusing and non-responsive answers when questioned about the work undertaken by him in Australia between the time when Educom went into administration and the grant of his subclass 457 visa to work for CXC. Ultimately he said that in January and February 2003 he did not understand that he was not then entitled to work in Australia as he did not hold an operative subclass 457 visa. I do not accept his evidence in this regard. When Mr Patankar received written advice from the Australian Consulate General that his initial application for a subclass 457 visa had succeeded, he was advised that he could not change employer without the permission in writing of the Secretary (see [6] above). When Educom went into administration and Mr Patankar was made redundant, he plainly understood that he needed to obtain a new subclass 457 visa which allowed him to work for another employer. It was for this reason that he approached CXC to become his visa sponsor.
I am also satisfied that Mr Patankar was not frank with the Court concerning whether he had worked for Sydney University. The issue arose in the following way. When it was suggested to Mr Patankar that he did not tell Mr Braganza that he was on a work visa sponsored by CXC, he responded:
Of course not, I did tell him and I told him quite clearly…that used to be my opening statement whenever I approached any employer, I had to first clarify where I’m coming from, how I am legally being employed and what are the terms and conditions associated with my services which are available to any company or organisation. That used to be standard so I just explained that to him at our first meeting.
When invited to nominate the potential employers with whom he had adopted this standard he could initially only nominate one. When it was put to him that he had in fact only done contracting work for one company while employed by CXC, he mentioned that he had also done some part-time weekend work for Sydney University. When asked for details of his work for Sydney University he said it “wasn’t too long”. He said that he did just a few short courses over a few weeks. When it was suggested to him that there must have been a tripartite agreement to which Sydney University and CXC were parties, and that payments made by Sydney University in respect of his services would have been picked up by the PAYG Payment Summary given to him by CXC, he indicated that his memory was “hazy”. Thereafter he said that it was possible that he didn’t end up doing any work for Sydney University. Later he volunteered that he did have discussions with the University of Sydney regarding his mode of payment through CXC but he believed that the course did not eventuate because “for some reason they had some scheduling difficulties and issues”.
It is not necessary for me to make a finding as to whether Mr Patankar worked for Sydney University. If he did, it seems that he was not paid for doing so by CXC. A subpoena served on CXC did not lead to a production of a tripartite agreement to which the University and CXC were parties. The importance of Mr Patankar’s evidence concerning Sydney University is twofold. First, it reveals that he was willing to overstate his evidence by suggesting that he had a standard practice of providing advice to potential “employers” concerning his visa status when he had in fact had little occasion to develop a practice. Secondly, I am satisfied that Mr Patankar sought to change his evidence about having worked for Sydney University when it became apparent that difficulties attended that evidence.
I place little weight on any evidence of Mr Patankar that is self-serving unless it finds support in the evidence as a whole.
Mr Low
I also have reservations about Mr Low’s evidence. Assuming, as I am willing to do, that Mr Low did not seek deliberately to mislead the Court, I am satisfied that he gave his evidence carelessly and that he was overly anxious to assist Mr Patankar’s case. In particular, I conclude that Mr Low swore his affidavit without taking reasonable steps to ensure that it was both accurate and unlikely to mislead. By way of example, paragraphs 10-11 of Mr Low’s affidavit, as read, stated:
10.In January 2003, Jayant [ie Mr Patankar] entered into an employment agreement with CXC and CXC took over Jayant’s visa sponsorship. CXC was an established visa sponsor with DIMIA.
11.Up to June 2003, Jayant had been engaged with a number of third party users. Jayant worked for Global Knowledge Networks and The University of Sydney and on both occasions tripartite agreements had been entered into and Jayant was payrolled through CXC.
The documentary evidence before the Court shows that CXC provided Mr Patankar with an employment agreement for his signature under cover of a letter dated 3 February 2003. As mentioned above, DIMIA did not grant Mr Patankar a subclass 457 visa to work for CXC until 20 February 2003. It appears that the only third party for whom Mr Patankar worked in his capacity as an employee of CXC was Total Internet Centre in Newcastle. The only mention made by Mr Patankar of Global Knowledge Networks was in the context of his previous employment by Educom; he deposed to Educom going into administration following a failed merger and acquisition by Global Knowledge Networks. I have discussed above Mr Patankar’s evidence concerning Sydney University. Finally, it is not in dispute that Mr Patankar was not in Australia for the whole of the period from January to June 2003. He returned to India on 2 March 2003 (ie less than two weeks after the issue of his subclass 457 visa to work for CXC) and did not return until 2 June 2003 (ie two days before he responded to Excom’s job interview). The implication that paragraphs 10-11 of Mr Low’s affidavit is calculated to convey is that Mr Patankar lawfully worked in Australia pursuant to an employment agreement with CXC from January to June 2003. This implication is false for the reasons identified above.
While I am not positively satisfied that Mr Low sought to mislead the Court, I place little weight on his evidence unless it finds support in the evidence as a whole.
Mr Newey
Nothing in Mr Newey’s evidence or his demeanour caused me to form an unfavourable impression of him as a witness and, generally speaking, I accept his evidence. My reservation concerns his evidence that his letter to DIMIA (see [42] above) did not include untrue assertions.
Mr Braganza
I also formed a favourable impression of Mr Braganza. I have no reason to believe that he sought to mislead the Court. However, I think it more likely than not that his memory concerning the circumstances surrounding Mr Patankar’s employment by Excom is defective. The explanation for this may well lie in the length of time that has passed since Mr Patankar was employed by Excom, for whom Mr Braganza no longer works, and his limited concern at the time with the technicalities affecting visas.
FINDINGS
I am satisfied on the balance of probabilities that either Mr Patankar advised Mr Braganza of his visa status during the first interview or that Mr Braganza was already aware of this fact from Mr Patankar’s response to the job advertisement placed by Excom. It seems to me that Mr Braganza’s knowledge of Mr Patankar’s visa status and his knowledge of Excom’s attitude to tripartite agreements probably explains why Mr Braganza told him during the first interview that he should be willing to work as an employee and not as a contractor (see [28] above). I am also satisfied that Mr Newey was aware of Mr Patankar’s visa status at about this time. Mr Newey acknowledged that he had this information prior to Mr Patankar’s commencing work with Excom.
I am also satisfied that prior to the first interview Mr Braganza had learnt from Mr Newey that Excom had applied to DIMIA for sponsorship status approval to allow it to employ five individuals on subclass 457 visas. I think it likely that he told Mr Patankar something to this effect at the first interview although he now has no memory of having done so. I conclude that the reason why Mr Braganza has no memory of this is that he carried no responsibility within Excom with respect to work visas and knew little about the intricacies of subclass 457 visas.
However, I am not satisfied that Mr Braganza told Mr Patankar that Excom would sponsor him on his work visa or that Excom was in a position to sponsor him on his work visa in relation to the position of Technical Systems Instructor. Nor do I accept that Mr Braganza told Mr Patankar either of the following two things each of which the evidence establishes to be false; first, that his was not the only work visa to be taken over and that there were four other work visa candidates whose transfer applications Excom had to file with DIMIA; and secondly, that the Melbourne office of Excom had been entrusted with this job. Any reference made by Mr Braganza to the Melbourne office of Excom would, I am satisfied, have been in the context of salary payments. I therefore do not accept Mr Patankar’s evidence that Mr Braganza said to him words to the effect that he should wait to hear from the Melbourne office before writing to DIMIA.
Mr Patankar conceded in oral evidence that Mr Newey was not present at the time when Mr Braganza, as Mr Patankar alleges, made the representation at the second interview that Excom had the legal capacity to sponsor Mr Patankar on a subclass 457 visa in June 2003. The pleaded allegation that Mr Newey told Mr Patankar that Excom had the legal capacity to sponsor him on a subclass 457 visa was accepted to be false.
I do not accept Mr Patankar’s evidence that during the second interview he said to Mr Braganza that he would only be able to accept Excom’s offer of employment if Mr Braganza could confirm that Excom had the capacity to sponsor his visa. Nor do I accept that Mr Braganza told him that Excom could sponsor his work.
I accept that Mr Patankar may have said to Mr Braganza words to the effect that Excom could only sponsor him if he ceased to be an employee of CXC and that Mr Low would co-ordinate the work visa transfer from CXC to Excom. However, I am not satisfied that Mr Braganza replied that he had heard from Mr Low or that he said that Excom would manage the transfer of the work visa from Melbourne. As indicated above, I accept that the Melbourne office of Excom did not manage work visa issues. I also accept that Mr Braganza understood that Mr Newey was responsible for issues concerning work visas. I find that the conversation to which Mr Low deposed (see [36] above) did not take place. I accept Mr Newey’s evidence that Excom had decided against the option of entering into tripartite agreements with organisations that had sponsorship status approval (see [22] above) and wished to employ its own staff. This is consistent with Excom applying to have its own visa sponsorship status approved. It was Mr Braganza’s knowledge of Excom’s attitude in this regard which, I am satisfied, informed his advice to Mr Patankar during the first interview that he should be willing to work as an employee of Excom (see [28] above).
I reject Mr Patankar’s oral evidence that during the second interview he must have briefly “touched base” on the issue of a tripartite agreement. He did not refer to having done so in his affidavit evidence concerning the second interview. Moreover, I am satisfied that Mr Patankar’s later conduct in commencing work without executing a tripartite agreement, was inconsistent with his being concerned at this time about a tripartite agreement.
As mentioned above, Mr Newey gave evidence that sometime before 16 June 2003 he spoke with Mr Patankar about Excom’s still being in the process of obtaining sponsorship status (see [40] above).
Mr Patankar unequivocally denied that the conversation of which Mr Newey gave evidence occurred. It was not clearly put to Mr Newey that his evidence concerning the alleged conversation was untrue. It was put to him that Mr Patankar did not accept the suggestion to undertake preparation for teaching and update his accreditation using Excom’s facilities. Mr Newey said that he did although he qualified this with “as far as I’m aware, he did accept it, because he then came in and started…”. Having regard to the evidence on this topic I am satisfied on the balance of probabilities that sometime before 16 June 2003 Mr Newey did speak to Mr Patankar in words to the effect of which he gave evidence. Whether or not Mr Patankar expressed his acceptance of Mr Newey’s suggestion, I conclude that Mr Patankar understood that Excom was not proposing to enter into a tripartite agreement to allow Mr Patankar to work with Excom as a consultant while continuing to be employed by CXC.
Several aspects of the evidence confirm that Mr Patankar was aware at the time that he accepted Excom’s offer of employment that he would not be working under a tripartite agreement to which Excom and CXC would be parties. First, the terms upon which he was offered employment were inconsistent with his being a consultant to Excom (see [10] above). Secondly, he accepted that he did not fill out any time sheets upon which CXC could make payments to him although he had earlier done so while working as a contractor for Total Internet Centre. Thirdly, he did not sign, ask to sign, or even see a tripartite agreement. Moreover, his completion on 16 June 2003 of the forms identified in [13] above, is consistent with his understanding that he was commencing work that day as an employee of Excom.
In my view Mr Patankar’s evidence concerning his employment arrangements in January and early February 2003 throws light upon the circumstances in which he accepted the offer of employment by Excom in June 2003 (see [8] above). When asked in cross-examination whether he had started work with Total Internet Centre on 6 January 2003 (ie a date before the grant of his subclass 457 visa authorising him to work for CXC) he replied:
Yes, but it was already explained to them that CXC is taking over my work visa and they’re going to be my employers. As soon as the paperwork is done CXC will be paid for my services and I’ll be paid all to CXC [sic].
When asked if he started work with Total Internet Centre before he had entered into any contract with CXC, he replied:
I had already spoken to CXC, I had taken their advice on that.
When asked if CXC had advised him that he could start work on 6 January 2003 he responded that he didn’t remember very clearly.
It is not appropriate for me to reach a view as to the propriety of the conduct of CXC in January 2003. CXC is not a party to this proceeding and it may not accept Mr Patankar’s version of what happened at that time. However, I am satisfied that Mr Patankar was well aware in January 2003 that he did not hold a subclass 457 visa authorising him to work for CXC or any employer other than Educom. I am also satisfied that in January 2003 he was willing to commence work with Total Internet Centre in the expectation that he would shortly thereafter be granted a subclass 457 visa authorising him to work for CXC and that he could at that time enter into a tripartite agreement with CXC and Total Internet Centre. That is, as I find, Mr Patankar was willing in January 2003 to chance working for a new employer ahead of being granted the necessary subclass 457 visa in the belief that “paperwork” subsequently entered into would render it unlikely that the authorities would learn of his having commenced work ahead of the grant to him of the necessary subclass 457 visa.
Mr Patankar’s experience in January 2003 was that his expectation of being granted a new subclass 457 visa was well-founded and that no problems arose from his having started work ahead of the grant of the visa. I conclude that he decided that it would be worthwhile to follow a similar course in June 2003. That is, that Mr Patankar decided that he could start working for Excom on 16 June 2003 because Excom was likely soon thereafter to receive approval to be a sponsor for subclass 457 visas. I am satisfied that neither Mr Newey nor Mr Braganza gave him any reason to believe that Excom would enter into a tripartite agreement. Indeed, as indicated above, I find that they both indicated that it would not.
I accept that Mr Low may well have communicated with someone at Excom (who may or may not have been Mr Braganza) on the topic of an agreement to which Mr Patankar, Excom and CXC would all be parties before 16 June 2003. However, I reject Mr Low’s evidence that Mr Braganza said to him that Excom would use its own contract and that he would arrange for it to be sent to CXC. As I have already mentioned, I am satisfied that Excom had earlier decided as a matter of policy that it would not engage contractors under tripartite agreements (see [22] above).
I consider it more likely than not that it was not until about 23 July 2003, when he sought a form of tripartite agreement from Mr Low, that Mr Patankar took any steps to regularise his employment by Excom. It is not necessary for me to determine what precipitated Mr Patankar’s action at this time. The critical time for present purposes is earlier. I am satisfied that Mr Patankar accepted Excom’s offer of employment and thereafter commenced to work as an employee of Excom knowing that he did not have a subclass 457 visa that allowed him to work as an employee of Excom and further knowing that Excom did not propose to engage him as a contractor pursuant to a tripartite agreement with CXC.
TRADE PRACTICES ACT
The Statement of Claim pleads that each of the first and second representations, as therein defined (see [15] above), constituted conduct in breach of s 52 and s 53B of the TPA. As indicated above, I am not satisfied that either the first or the second representation was made. Mr Patankar’s case for damages pursuant to s 82 and s 87 of the TPA therefore fails.
NEGLIGENT MISSTATEMENT
Mr Patankar’s case in negligent misstatement is similarly based on the first and second representations. As I am not satisfied that either of the alleged representations was made, his claim for damages for negligent misstatement also fails.
BREACH OF CONTRACT
The Statement of Claim pleads that Excom breached its employment contract with Mr Patankar by failing to assist him to achieve his potential and goals as provided for by cl 24 of the offer of employment. It is not clear that this claim was pressed. In my view it is clear that the opening words of cl 24 of the terms and conditions upon which Mr Patankar was offered employment by Excom were aspirational in the sense that they merely sought to describe the attitude that would inform the way in which Excom would conduct staff performance reviews (Whitlock v Brew (1968) 118 CLR 445; Bishop v Taylor (1968) 118 CLR 518). The meaning of the words is insufficiently certain to be enforced. They were not, in my view, intended of themselves to give rise to any legal obligation.
The plea that it was an express verbal condition of the contract of employment that Excom would do all things necessary to arrange for the lawful and expeditious transfer of CXC’s visa sponsorship of Mr Patankar to Excom whilst in the meantime executing a tripartite agreement with CXC and Mr Patankar is not supported by the evidence. The only relevant offer made to Mr Patankar by Excom was an offer of employment. By accepting that offer and commencing work Mr Patankar became an employee of Excom. Mr Patankar could not concurrently be an employee of CXC and work for Excom as a consultant.
Contrary to the assumption that pervades the Statement of Claim and the Reply, it was not Excom’s payment of remuneration into Mr Patankar’s bank account that caused Mr Patankar to be in breach of visa condition 8107. Visa condition 8107 relevantly provides:
The holder must not:
(a)if the visa was granted to enable the holder to be employed in Australia:
(i)cease to be employed by the employer in relation to which the visa was granted; or
(ii)work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(iii)engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
By accepting Excom’s offer of employment and working as an employee of Excom, Mr Patankar worked in a position inconsistent with the position in relation to which his visa was granted. Excom’s payment of his salary by way of transfer into his bank account evidenced Mr Patankar’s breach of visa condition 8107; it did not constitute the breach.
The pleaded allegation that Excom breached a warranty that it would at all times be eligible to sponsor Mr Patankar on a subclass 457 visa prior to commencing to pay him the agreed remuneration under the contract of employment fails for the same reasons as the allegation concerning an express verbal condition. First, the alleged warranty is not supported by the evidence. Secondly, it was not the payment of the agreed remuneration that resulted in the breach of visa condition 8107; it was the making of the contract of employment and the working thereunder that constituted the visa breach.
CONCLUSION
The application will be dismissed with costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 10 April 2008
Counsel for the Applicant: Mr D Shoebridge Solicitor for the Applicant: Barwick Legal Counsel for the Respondent: Mr I E Davidson Solicitor for the Respondent: G M Legal Date of Hearing: 3, 4 and 5 March 2008 Date of Judgment: 10 April 2008
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