Pello-Esso v Thayli Pty Ltd
[2014] FCCA 1480
•9 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PELLO-ESSO v THAYLI PTY LTD | [2014] FCCA 1480 |
| Catchwords: INDUSTRIAL LAW – Alleged failure to pay wages and overtime and for public holiday – whether employee or volunteer. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.52 Federal Circuit Court Rules 2001 (Cth), rr.8.01, 16.05(1) Federal Magistrates Act 1999 (Cth), s.52 |
| Australian Competition and Consumer Commission v Internic Technology Pty Ltd & Anor (1998) 42 IPR 225 Australian Steel Co (Operations) Pty Ltd v Steel Foundations Ltd & Anor (2003) 58 IPR 69; [2003] FCA 374 Autodesk Inc & Ors v Ginos Engineers Pty Ltd & Anor [2007] FMCA 1848 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335; [2010] FMCA 932 Mulhern v Pearce & Anor [2012] FMCA 1186 National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155 Omiros Pty Ltd v PM Developments Pty Ltd & Ors (No. 2) [2005] FMCA 234 Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495 WH Books Ltd & Ors v Miller & Anor (1998) 41 IPR 364 |
| Applicant: | ELLIE PELLO-ESSO |
| Respondent: | THAYLI PTY LTD |
| File Number: | PEG 134 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 9 July 2014 |
| Date of Last Submission: | 9 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 9 July 2014 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | Mr S Aylmore (by telephone) |
ORDERS
The name of the respondent be amended to read Thayli Pty Ltd.
That the matter be listed for hearing for two days at the Carnarvon Court House, Cnr Robinson St and Olivia Tce Carnarvon WA 6701, on 17 and 18 September 2014 at times to be advised.
Save for affidavits already filed, all other evidence in the proceedings is to be taken orally.
The respondent serve the applicant with copies of all affidavits already filed in the proceedings addressed to the applicant at 26 Astrolabe Way Swanview WA 6056 by 23 July 2014.
No order as to the costs of today.
AND THE COURT NOTES that these orders have been amended pursuant to r.16.05(1) of the Federal Circuit Court Rules 2001 (Cth) to show in order 2 “at the Carnarvon Court House, Cnr Robinson St and Olivia Tce Carnarvon WA 6701,” in lieu of “in Carnarvon at the State Courts Complex in Carnarvon”; to insert the words “at times to be advised” after the number “2014” in order 2; and to insert the words “by 23 July 2014” after the number “6056” in order 4.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 134 of 2014
| ELLIE PELLO-ESSO |
Applicant
And
| THAYLI PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Edited extempore reasons)
The Court has before it a claim under the Fair Work Act 2009 (Cth) (“FW Act”) for a sum of $19,392.36 for allegedly unpaid wages and overtime, and for public holidays, brought by the applicant Ms Ellie Anne Charlize Pello-Esso (“Ms Pello-Esso”).
The claim is brought by Ms Pello-Esso on the basis that she claims to have worked for the respondent, who is, as discussed in submissions correctly to be named as Thayli Pty Ltd (“Thayli”), as a farm and livestock hand, level 5 under the Pastoral Modern Award 2010.
Thayli claims that Ms Pello-Esso was a backpacker performing voluntary tasks without remuneration, other than accommodation, food and drink, to the extent that they might be considered remuneration, and not as an employee.
Thayli operates a pastoral station property, called Ella Valla Station, some 30 kilometres out of Carnarvon.
Carnarvon is a small, medium size Western Australian coastal town, approximately 900 kilometres north of Perth, at the mouth of the Gascoyne River.
The issue as to whether Ms Pello-Esso is an employee or a volunteer is one which is critical, and one which Thayli indicated, in brief submissions, was a matter of some significance on an industry-wide basis.
The matter is before the Court today for a first directions hearing, and the issue arises as to where the matter ought properly be heard. The choice is between the Commonwealth Law Courts in Perth or the State Courthouse in Carnarvon.
Section 52 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
(1) The Federal Circuit Court of Australia may sit at any place in Australia.
(2) The Federal Circuit Court of Australia or a judge may, at any stage of a proceeding in the Federal Circuit Court of Australia, order that:
(a) the proceeding; or
(b) a part of the proceeding;
be conducted or continued at a place specified in the order, subject to such conditions, if any, as the Federal Circuit of Australia or a judge imposes.
The matter does not involve an application for a proceeding to be heard in another registry of the Court, so the provisions of r.8.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) do not apply, although, some of the concepts in r.8.01(2) might, in any event, be relevant considerations on the question of venue.
Returning then to s.52 of the FCCA Act, the section allows for the Court to sit anywhere in Australia, including its external territories, and by order in relation to all or any part of a proceeding, and at any stage of a proceeding, to conduct or continue a proceeding at a place specified in the order, subject to any conditions that the Court or a judge may impose.
In National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155 (“Sentry Corporation”), the Full Court of the Federal Court determined whether a proceeding commenced in Melbourne should be tried at Sydney, as that was argued to be the proper place of the proceedings. In determining whether there was a sound reason to direct that the proceeding be conducted or continued elsewhere other than Melbourne where it was commenced, the Full Court of the Federal Court said in Sentry Corporation at page 162 per Bowen CJ, Woodward and Lockhart JJ, that:
Ultimately, the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
In Sentry Corporation, in applying that test, the Full Court of the Federal Court identified a number of factors which might be taken into account, including:
a)the residence of the parties;
b)the residence of the witnesses;
c)the expense to the parties;
d)the place where the cause of action arose; and
e)the convenience of the Court itself.
The Sentry Corporation test has been applied by this Court, and its predecessor, the Federal Magistrates Court, on a number of occasions: Omiros Pty Ltd v PM Developments Pty Ltd & Ors (No. 2) [2005] FMCA 234 at para.16 per McInnis FM; Autodesk Inc & Ors v Ginos Engineers Pty Ltd & Anor [2007] FMCA 1848 at para.7 per Lloyd-Jones FM; Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495 at paras.7-12 per Lucev FM (“Sherwood Overseas”), with Sherwood Overseas being applied in Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335 at 353 per Lucev FM; [2010] FMCA 932 at para.69 per Lucev FM; and Mulhern v Pearce & Anor [2012] FMCA 1186 at para.5 Driver FM.
The Federal Court has identified other factors which warrant consideration when applying the test identified in Sentry Corporation. They include that:
a)the choice of venue should not be capricious;
b)the degree of connection must be considered with the respective venues, and, in particular, the subject matter of the litigation, especially where a view or inspection might be required by the Court: Australian Steel Co (Operations) Pty Ltd v Steel Foundations Ltd & Anor (2003) 58 IPR 69 at 90-91 per Kenny J; [2003] FCA 374 at paras.79 to 89 per Kenny J, and WH Books Ltd & Ors v Miller & Anor (1998) 41 IPR 364 at 365 per Emmett J.
A further consideration is the fact that the Court can sit, take evidence and hear witnesses anywhere in Australia: Australian Competition and Consumer Commission v Internic Technology Pty Ltd & Anor (1998) 42 IPR 225 at 233 per Lindgren J.
With respect to the residence of the parties, Ms Pello-Esso is not an Australian resident, but is presently in Australia on a visa, the precise nature and terms of which are not in evidence at this stage. Ms Pello-Esso is presently, according to her application, living in Swan View, which is an outer eastern suburb of Perth. Thayli is located outside of Carnarvon, which as indicated is some 900 kilometres north of Perth. That factor is, in those terms, evenly balanced.
In terms of the residence of the witnesses, Ms Pello-Esso has indicated that she will be giving evidence, together with two other witnesses, who she says are a British couple who are presently in Perth.
Thayli at this stage, based on the materials filed, appears to be calling six witnesses, being:
a)Mr Shane Aylmore, the lessee of Ella Valla station, who appears to live at Ella Valla station;
b)Mr Spencer Aylmore, a manager on Ella Valla station, who also appears to live there;
c)Ms Amanda Berghofer, who is a pharmacist and the company secretary of Ella Valla station, who lives in Carnarvon;
d)Mr Jordan Maze, a French national who lives at Ella Valla station;
e)Mr Stephen Haines, who lives in Perth but is a sometime manager at Ella Valla station; and
f)Mr Ying-Shan Chung, a Taiwanese national living at Ella Valla station.
Ms Pello-Esso’s witnesses appear to be living in Perth, having moved here, it would appear, from Carnarvon at some stage, while five of the six witnesses for the respondent are resident at Ella Valla station or in Carnarvon, and the sixth has some connection to Ella Valla station.
In the circumstances, the balance, in terms of the residence of the witnesses, favours a hearing in Carnarvon.
In terms of expense of the parties, there would be considerable expense to Thayli in bringing its five Carnarvon-based witnesses to Perth and accommodating them. But likewise, there would be expense to Ms Pello-Esso in going to Carnarvon and having her two witnesses attend in Carnarvon. But clearly, the expense would be greater for Thayli.
The Court has considered whether the use of video or telephone links might be appropriate to take evidence from witnesses based in Carnarvon. On the basis of the usual arrangements with respect to video links, the costs of a two-day video link would outweigh the costs of accommodation and affairs for the Court and its personnel. Furthermore, the Court’s view is that both video and telephone links are unsatisfactory in circumstances where neither side is legally represented, and the norms of court procedure, which might facilitate an orderly hearing by video or telephone link, are foreign to both parties. Video links are likely to be unsatisfactory where two, and possibly three, of the nine witnesses have English as a second language, a fact which might make examination, cross-examination and re-examination difficult, even without the vagaries of a video or telephone link, and which is likely, in the circumstances described, to make a hearing by video or telephone link difficult to conduct, and, more pertinently, in what appears to be some kind of industry test case, to affect the quality of the evidence. That is a very important consideration in this case, where, despite the value of the claim, there are very serious issues in contention as to:
a)whether or not Ms Pello-Esso had a right to work; and
b)whether or not Ms Pello-Esso was an employee or a volunteer,
and where almost all of the evidentiary issues concerning whether Ms Pello-Esso did work as an employee or volunteer at Ella Valla station are in dispute, and where the credit of the witnesses is likely to be important in an evaluation of that evidence, and which, if affected by the quality of any video or telephone link, might lead to an injustice if the Court is not properly able to assess the quality of that evidence.
The Court is of the view that the least expensive option overall, both for the parties and the witnesses as a whole, and for the public purse in terms of Court expenses, is for the hearing to be held in Carnarvon. The fact of expense therefore favours a hearing in Carnarvon, as does the potential unsuitability of taking evidence by video or telephone links in the circumstances of this case.
The Court also has to have regard to the place where the cause of action arose, and the cause of action quite clearly here arose at Ella Valla station, so effectively in Carnarvon, and that factor favours a hearing in Carnarvon.
In terms of the convenience of the Court itself, for the reasons set out above, and particularly those as to the effect or likely effect on the quality of the evidence, and the unsuitability of video and telephone links, the Court favours a hearing in Carnarvon.
In terms of other factors, the choice of venue is not capricious. If it is Carnarvon, there is a natural link with Carnarvon. There is no link in terms of the actual cause of action with Perth, and the only reason that Perth arises as a venue is because it is the place at which in Western Australia the general federal law and fair work claims are filed. And there is a significant degree of connection with Carnarvon as a venue, especially if, as the Court perceives, it might be necessary to have a view or inspection during the course of any hearing. The Court bears in mind that any hearing involving submissions and nine witnesses is likely to run over two days.
It is also appropriate to note that this is a federal court which can sit, take evidence and hear witnesses anywhere in Australia. In introducing the Federal Magistrates Bill 1999 (Cth) (“FM Bill”), the then Attorney-General said of what became s.52 of the Federal Magistrates Act 1999 (Cth), now the FCCA Act:
It is expected that the Federal Magistrates Court will travel to hear cases in centres other than those in which federal magistrates are permanently based.
See paragraph 81 of the Explanatory Memorandum to the FM Bill.
A hearing in Carnarvon, in this case, will not be inconsistent with the intention behind s.52 of the FCCA Act.
In all of the above circumstances, it is appropriate that this matter be heard in Carnarvon, as that is the proper place for the hearing, and there will be an order accordingly.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 11 July 2014
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