Pello-Esso v Thayli Pty Ltd

The Federal Circuit Court of Australia, sitting at Perth, heard a claim brought by Ms Ellie Pello-Esso against Thayli Pty Ltd. Ms Pello-Esso alleged that she was owed $19,392.36 for unpaid wages, overtime, and public holidays, asserting she worked as a farm and livestock hand under the Pastoral Modern Award 2010. Thayli Pty Ltd contended that Ms Pello-Esso was a backpacker performing voluntary tasks, receiving only accommodation, food, and drink, and was not an employee. The dispute centred on whether Ms Pello-Esso was an employee or a volunteer, a critical issue for the respondent, which operates a pastoral station near Carnarvon.

The primary legal issue before the Court was the proper venue for the hearing of the proceedings. The choice lay between the Commonwealth Law Courts in Perth and the State Courthouse in Carnarvon. In determining this, the Court was required to consider the factors outlined in *National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation* (1988) 19 FCR 155, which include the residence of the parties and witnesses, the expense to the parties, the place where the cause of action arose, and the convenience of the Court. Additional considerations included whether the choice of venue was capricious and the degree of connection with the respective venues, particularly if a view or inspection of the premises might be required.

The Court reasoned that while the applicant resided in Perth and the respondent was located near Carnarvon, the balance of witness residence favoured Carnarvon, with five of the respondent's six witnesses residing in or near Carnarvon, and the applicant's witnesses in Perth. The Court found that holding the hearing in Carnarvon would be the least expensive option overall for the parties and witnesses, and also for the public purse. Furthermore, the Court expressed significant reservations about the suitability of using video or telephone links for taking evidence, especially given that two or three of the nine witnesses had English as a second language, and neither party was legally represented. The Court concluded that the quality of evidence could be compromised by such links, potentially leading to injustice, particularly in a case where witness credit was likely to be important. The fact that the cause of action arose at the respondent's station near Carnarvon also favoured that venue.

Consequently, the Court ordered that the matter be listed for a two-day hearing at the Carnarvon Court House on 17 and 18 September 2014. All other evidence was to be taken orally, save for affidavits already filed. The respondent was directed to serve copies of its filed affidavits on the applicant by 23 July 2014. The Court also ordered that the name of the respondent be amended to Thayli Pty Ltd and made no order as to the costs of the directions hearing.