Prajapati v Narshima Tradings Pty Ltd T/A ZIGGY'S CAFE
[2016] FCCA 2798
•2 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRAJAPATI v NARSHIMA TRADINGS PTY LTD T/A ZIGGY'S CAFE & ANOR | [2016] FCCA 2798 |
| Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal by second respondent – no reasonable prospects of success. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 13, 42, 44, 45, 529, 536, 539, 540, 545, 546, 550, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Damevski v Guidice & Ors [2003] FCAFC 252; (2003) 133 FCR 438 |
| Applicant: | HEMALI PRAJAPATI |
| First Respondent: | NARSHIMA TRADINGS PTY LTD T/A ZIGGY'S CAFE |
| Second Respondent: | HARIHAR PRAJAPATI |
| File Number: | SYG 488 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 July 2016 |
| Date of Last Submission: | 13 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Andelman |
| Solicitors for the Applicant: | Women's Legal Services |
| Counsel for the First Respondent: | Mr A Howell |
| Solicitors for the First Respondent: | Malik Lawyers |
Counsel for the Second Respondent: | Mr A Howell |
| Solicitors for the Second Respondent: | Malik Lawyers |
ORDERS
The application made on 23 February 2015 is dismissed pursuant to Section 17A(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth).
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 488 of 2015
| HEMALI PRAJAPATI |
Applicant
And
| NARSHIMA TRADINGS PTY LTD T/A ZIGGY'S CAFE |
First Respondent
| HARIHAR PRAJAPATI |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made by the second respondent in these proceedings seeking summary dismissal of the application made by the applicant on 23 February 2015. The second respondent seeks an order pursuant to s.17A(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”).
Section 17A(2)(b) of the FCCA Act is in the following terms:
“Summary judgment
…
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
…
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding…”
Background
On 23 February 2015, Ms Hemali Prajapati (“the applicant”) made an application under the Fair Work Act 2009 (Cth) (“the FWA”). She claimed contraventions of the FWA by Narshima Tradings Pty Ltd t/a Ziggy’s Café (“the first respondent”) and Mr Harihar Prajapati (“the second respondent”), whom she asserted managed the business.
The application made by the applicant seeks orders by way of declaration that the respondents have contravened clauses of the Restaurant Industry Award 2010, therefore contravening s.45 of the FWA, and ss.44 and 536 of the FWA. Further, the applicant seeks pecuniary penalties pursuant to s.546 of the FWA and compensation for underpayment pursuant to s.545 of the FWA. The applicant alleges that the second respondent, as the director of the first respondent, managing director, and “day-to-day controller” of the first respondent, had knowledge of the first respondent’s obligations to pay rates of pay and other entitlements, and had knowledge that those entitlements were not paid by the first respondent to the applicant, as set out in her statement of claim (“SOC”) filed 23 February 2015.
For the purposes of the AIC the following documents are relevant:
1)The SOC.
2)The applicant’s affidavit of 14 May 2015.
3)The respondents’ amended Defence filed on 30 April 2015.
4)The parties’ written submissions:
i)The second respondent’s written submissions filed on 27 May 2016.
ii)The applicant’s written submissions filed on 24 June 2016.
The Second Respondent’s Position
The second respondent’s AIC can be said to be brought on two bases, despite the AIC limiting the order sought to the dismissal of the application against the second respondent only. First, that the applicant has “no reasonable prospect of demonstrating that she was an employee of” the first respondent, or the second respondent (“the first issue”). Second, that the applicant has “no reasonable prospect of demonstrating” that the second respondent was “knowingly involved” in the contraventions alleged against the first respondent. Further, and subsequently, the second respondent submitted that the applicant instituted proceedings against the second respondent “without reasonable cause” within the meaning of s.570(2)(a) of the FWA.
For the reasons set out below it is not necessary to consider the second issue. However, for the sake of completeness the Court’s understanding of these submissions is also set out below.
The Second Respondent’s Submissions: Employee of the First Respondent
The second respondent submitted that for the proceedings to be “competent against either respondent” the applicant must satisfy the “threshold” test that she was “an employee” of the first respondent pursuant to s.540(1) of the FWA. Further, that she must show that she was a “national system employee” with reference to ss.12 and 42 of the FWA.
The second respondent denied that there was “any contractual relationship at all” between the first respondent and the applicant. The second respondent relied on the “inherent” relationship between an employee and an employer as one of contract. The second respondent submitted that the SOC filed by the applicant does not particularise any facts to establish a contractual relationship between the applicant and the first respondent (see [16] of the second respondent’s submissions, and the alleged “bald assertion” referenced there).
The second respondent referred to the applicant’s claim in her affidavit of 14 May 2015, that in or around March 2012, her then husband told her that they were “going to go to the restaurant” and that she was “going to work in the restaurant making drinks and taking orders”
([16] – [17]). The applicant stated that she “believe[d]” that the second respondent and his brother, her then husband, bought the restaurant in late February 2012 (at [8]). The second respondent drew attention to the applicant’s evidence that it was her then husband who gave the instruction in [17] of her affidavit, not the second respondent.
Further, that there was nothing in the SOC or the evidence before the Court, as to the alleged relationship between the first respondent and the applicant’s then husband. Nor was there anything in relation to the applicant seeking, being offered, or voluntarily accepting employment by the first respondent, or any written or oral contract, or any offer and acceptance to perform work. The second respondent submitted that, on the material before the Court, there was nothing to show an intention to create a legally binding relationship between the applicant and the first respondent.
The second respondent submitted that, at its highest, the applicant’s evidence was that the applicant’s then husband told her she was going to work at the restaurant. In these circumstances, the second respondent submitted that the familial relationship/domestic relationship argued against the presumption of an employment relationship in the form of a legally binding contract.
The second respondent referred to the High Court’s determination of whether parties to an arrangement to perform work had an intention to create a contractual relationship (Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 (“Ermogenous”)). The second respondent submitted that it was necessary to conduct an “objective assessment of the state of affairs between the parties” to ascertain whether there was an intention to create a binding contract. Further, that the applicant bore the burden of proof of the objective intention to create a contract between herself and the first respondent.
Before the Court, the second respondent emphasised the “grossly different setting” of the first respondent to a commercial setting, as referred to by the applicant, with reference to its status as a “family business”. Further, that “the simple fact a person does work” was “not enough”. The question of employment was an “anterior” one that needed to look at the underpinning foundation of the relationship to determine whether it was “contractual”, and if so, what its proper character was.
In these circumstances, the second respondent referred to the lack of evidence of any ability of the applicant’s then husband to bind the first respondent, that there was no evidence that the applicant spoke to the second respondent, who she alleged “managed” the first respondent, about wages or other terms of employment. In all, the second respondent submitted, that taken at its highest, the applicant’s evidence and allegations in her SOC do not rise to the level of an objective intention to create a binding contract.
The second respondent noted some factual differences between the applicant’s evidence and the evidence filed by a number of individuals on behalf of both of the respondents. However, the second respondent noted that the purpose of a hearing in relation to s.17A of the FCCA Act, was not to conduct a “mini-trial” and appreciated that the applicant’s evidence was to be taken at its highest. Even in these circumstances, the second respondent asserted, with reference to his submissions above, that the applicant did not have reasonable prospects of success in showing she was an employee of the first respondent.
Applicant’s Submissions: Employee of the First Respondent
The applicant submitted that the second respondent’s AIC as to the matter of the employment of the applicant did not “lend itself to determination in a summary judgment application”. Rather, it was a matter that should be considered at the final hearing of the matter.
The applicant submitted that the Court should note the “flexible and realistic approach” taken by parties in making employment contracts (Damevski v Guidice & Ors [2003] FCAFC 252; (2003) 133 FCR 438at [172] and [174] (“Damevski”)). She submitted that in these circumstances, “classic contract theory” requirements may not be “objectively obvious”.
The applicant referred to a number of authorities to explain her position as to how the Court should consider the definition and requirements of an employment relationship as follows:
1)Fair Work Ombudsman v Ramsey Food Processing Pty Ltd & Anor [2011] FCA 1176; (2011) 198 FCR 174, where Justice Buchanan found that the second respondent was knowingly concerned in the contraventions of the employer despite believing at all relevant times that the “employees” were employed by labour hire.
2)Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 (“Branir”) at [369] per Allsop J (as he then was):
“…The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract…”
3)Hermens v Acacia Group Ltd [2011] FCA 1286 at [83] – [85] per Justice Jacobson with reference to the principles of contract formation:
“[83] The question which arises in the class of cases where the classical rules cannot be applied is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement: Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117–11,118 per McHugh JA (‘Integrated Computer Services’).
[84] Two caveats to which McHugh JA drew attention in Integrated Computer Services should be noted. First, it is an error to suppose that merely because something has been done, then, there is therefore, a contract in existence. Second, the conduct of the parties must be capable of proving all the essential elements of an express contract.
[85] A succinct statement of the relevant principle is to be found in the remarks of Cooke J in Meates v Attorney General [1983] NZLR 308 at 377 (‘Meates’) that:
The acid test in the case like the present is whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain.”
The applicant acknowledged that familial relationships, such as husband and wife, create a starting point where the intention to create legal relations is not to be assumed. However, the applicant submitted that this assumption is “easily rebutted where there [is] commercial consideration or the facts” do not “support the finding that there is mutual trust and affection” (Jones v Padavatton [1969] 2 All ER 616 (“Jones”) and Edwards v Skyways Limited [1964] 1 All ER 494). In this respect, the applicant submitted that the material before the Court did not have the nature of showing that the applicant was a “willing volunteer”.
Further, before the Court, the applicant submitted that “where there is a commercial element in a relationship” that is “prima facie an establishment that there was an intention to create legal relations”.
In all, the applicant submitted that the objective intent and circumstances showed that the applicant was employed. Further, that the employment relationship involves a “complex interlay of legal principles applied to the facts”, which should not occur at an interlocutory stage.
The Second Respondent’s Submissions: Knowledge of Second Respondent
The second respondent submitted that the applicant has not in her SOC or evidence provided the foundation for the contention that he was “knowingly involved” in the alleged contraventions of the first respondent, noting that the respondents denied all the contraventions.
The second respondent submitted that in order for the applicant to show that the second respondent was “knowingly” involved in the alleged contravention, the applicant has to satisfy the Court that the second respondent “intentionally” participated in the contraventions and had “actual knowledge” of those contraventions (see the second respondent’s references to Fair Work Ombudsman v Devine Marine Group [2014] FCA 1365 and Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 in his written submissions).
The second respondent submitted that, as the alleged contraventions substantively related to underpayment, the applicant has to show that the second respondent had actual knowledge that ([46] of the second respondent’s written submissions):
“[46] …
a) The Applicant worked for the First Respondent;
b) She did so as an employee;
c) Her work was governed by an industrial award (whether or not he knew the name of the award);
d) The award stipulated minimum rates of pay and penalty rates (and provided the other minimum entitlements that are alleged to underpin the contraventions by the First Respondent ); and
e) The First Respondent did not pay the Applicant the minimum rates (or other minimum entitlements said to have been contravened by the First Respondent) as required by the Award.”
The second respondent submitted that, with reference to the applicant’s evidence, there was no evidence that the applicant had, herself, sought employment, been offered employment from, or had any discussion about employment “quid pro quo for her performing work at the first respondent” with, the second respondent.
In all, the second respondent submitted that the applicant’s evidence did not identify “any fact from which the Court could conclude”, even taking the applicant’s evidence at its highest, that the second respondent had actual knowledge of the essential elements of the contravention ([50] of the second respondent’s written submissions):
“[50]…
a) To the extend the Applicant, his sister in law, attended and did anything at the restaurant, she did so as an employee;
b) That anything she did whilst the restaurant was governed by a modern award (whether or not he knew the name of the award); or
c) That the award stipulated minimum rates of pay, penalty rates, or provided the other minimum entitlements that are alleged to underpin the contraventions by the First Respondent.”
The second respondent submitted that the applicant’s case, as it stood at its highest before the Court, did not reach the point of indicating that the second respondent “knew” that the applicant was performing work as an employee. This was because the applicant had not “made out” that she was employed by the first respondent.
Knowledge of the Second Respondent
The applicant submitted that the “case against” the second respondent relied on his knowledge of all the aspects of the enterprise carried out by the first respondent, his knowledge of the first respondent’s obligations to pay rates of pay and other entitlements, and his knowledge of the fact that those entitlements were not complied with by the first respondent in respect of the applicant. She referred specifically to [3], [40] and [41] of the SOC.
The applicant submitted that the second respondent’s “Response”, as filed on 26 March 2015, contained “some admissions and denials” to [3] of the SOC and denied [40] and [41] of the SOC. However, the applicant submitted that the form of denial was “contrary” to the pleading rules set out in the Federal Court Rules 2011 (Cth) (“the FC Rules”).
As such, the applicant submitted the second respondent had not clearly stated whether he admitted or denied specific matters pleaded in [40] of the SOC, and therefore should be precluded from seeking summary judgment. Further, that he had admitted that he was the person responsible for complying with legal obligations under the FWA.
Further, the applicant made a number of submissions with reference to “accessorial liability”. She referred to the High Court’s reasoning with reference to s.351 of the Crimes Act 1900 (NSW) in Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 (“Giorgianni”). The applicant submitted that that section was in similar terms to s.550(2)(a) of the FWA. The High Court stated that an individual did not need to know the act was an offence, but to be an “accessory” would need to know what the principal was doing.
The applicant submitted that the High Court considered Giorgianni in a civil case in Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 under the previous Trade Practices Act 1974 (Cth). In that matter it was not required that there was “an intent to deceive”, instead, the focus was on “involved in”.
The applicant submitted that the key issue in accessorial liability matters under the FWA is the level of knowledge the accessory needs to have. She submitted that the question had not been settled in the authorities. She referred to Fair Work Ombudsman v Pocomwell Limited (No 2) [2013] FCA 1139 where Justice Barker stated, in obiter, that an accessory was not required to know that a particular award applied to an applicant in industrial proceedings. Further, that “ignorance of the law” as a defence was rejected in Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd & Anor [2012] FMCA 835. The applicant referred to a number of further authorities to show that the law was not settled as to the “essential facts” to be established for a person to be an accessory to a contravention of an award. In particular, she referred to two cases involving non-payment of wages (see Fair Work Ombudsman v Al Hilfi (No 2) [2013] FCA 16 and Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135 from [62] onwards of the applicant’s written submissions).
Before the Court, the applicant submitted it was not necessary for the “knowledge” of the second respondent to include that he had knowledge that she was an employee. It was only necessary for the applicant to prove that he was “linked in purpose”. That is, that he had knowledge of the contraventions.
The applicant also submitted that the Court should take into account that the first respondent had ceased trading, and therefore would be unlikely to have the means to satisfy any possible order made by this Court to pay compensation.
Before the Court
The second respondent emphasised before the Court that the AIC was brought to strike out the proceedings against the second respondent. However, the second respondent also put to the Court that the state of the proceedings called for the whole case to be dismissed as the applicant could not make out that she was an employee of the first respondent. That is, the whole matter should be dismissed despite the AIC not being brought for that purpose.
The test for the Court to consider is one of “no reasonable prospects of success” pursuant to s.17A(2)(b) of the FCCA Act. As both parties submitted, the central authority on this point is Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”).
Before the Court, the second respondent noted that the case was “well enough advanced”, in that the applicant had filed her evidence-in-chief and the respondents (that is, both in the substantive proceedings) had filed their evidence, it was therefore an appropriate time for the Court to make a view about the reasonable prospects of success.
The applicant submitted that the Court should exercise its discretion not to hear the AIC because of the manner in which the respondents have conducted themselves in the proceedings. This was particularly made with particular reference to the Response filed by the respondents.
The second respondent denied this alleged deficiency in the Response. The second respondent submitted that in the time that the matter was on foot, there had been no request for further and better particulars such as to indicate that the applicant did not know the denials of both the respondents as to her claims. Further, that any submission from the applicant that her allegations were “unchallenged” did not stand in light of the “evidence” (that is, in the affidavits filed in the substantive proceedings) from the respondents’ witnesses that clearly opposed the applicant.
Consideration
The following matters require note. First, the application currently before the Court for immediate disposition is that of the second respondent, and not the first respondent. The second respondent’s submissions in the alternative, however, seek dismissal of the entire proceedings. That is, as also against the first respondent. Before the Court, counsel for the second respondent explained that he was also counsel for the first respondent.
Even though the AIC sought dismissal of the substantive application as against the second respondent, if the Court were to dismiss the claim against the second respondent on the basis that there was, on the pleadings and statements in the affidavits filed in the proceedings, no reasonable prospect of the applicant showing that she was an “employee” of the first and second respondent for the purposes of the FWA, then there is no merit in leaving only that part of the application relating to the first respondent on foot (see further below).
Second, the orders sought in the AIC rely on the Court’s power to summarily dismiss an application as this derives from s.17A of the FCCA Act. In submissions, however, the second respondent also sought dismissal in the alternative pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). There was no indication that the second respondent relied on any particular part of that rule.
The focus of s.17A(2)(b) of the FCCA Act is on whether an applicant has reasonable prospects of successfully prosecuting the proceeding. While r.13.10(a) of the FCC Rules is in generally similar terms, rr.13.10(b) and (c) of the FCC Rules refer to “frivolous or vexatious”, proceedings, and proceedings which are an abuse of the powers of the Court.
In both written and oral submissions, the second respondent appeared to rely only on the concept of “no reasonable prospect of success”. To avoid any doubt I have proceeded in this matter to consider the exercise of the power pursuant to s.17A of the FCCA Act.
Third, there was no dispute between the parties as to the relevant test to be applied in relation to the concept of “no reasonable prospect of success”. Both parties referred to Spencer which was concerned with the question of summary dismissal under s.31A of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”). For current purposes it was accepted by the parties that what was said in that case about s.31A of the FCA Act applies also to s.17A of the FCCA Act.
In that light both parties directed attention to Spencer at [53] – [56]:
“[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).
[54] In Dey, the defendants moved for summary judgment on the grounds that the action was frivolous, vexatious and an abuse of process. In a passage often later cited, Dixon J said that ‘[a] case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury’. What Dixon J meant by ‘very clear’ was identified by his observation that ‘once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process’ (emphasis added). And there would be a ‘real question’ unless the defendant could ‘show that it was so certain that [the question] must be answered in the [defendant's] favour that it would amount to an abuse of the process of the court to allow the action to go forward for determination according to the appointed modes of procedure’ (emphasis added). The test identified by Dixon J in Dey can thus be seen to be a test requiring certain demonstration of the outcome of the litigation, not an assessment of the prospect of its success.
[55] In General Steel Industries, Barwick CJ pointed out that previous decisions about summary termination of actions on the motion of a defendant had been given in cases in which the so-called ‘inherent’ jurisdiction of a court to protect itself and its processes from abuse had been invoked, and in cases where the defendant had relied upon a particular rule of court permitting the court to strike out pleadings or dismiss an action on it being shown that a pleading ‘does not disclose a reasonable cause of action’ or the action ‘being shown by the pleadings to be frivolous or vexatious’. The material available to the court might differ, depending upon which power was invoked, but all the cases emphasised the need for ‘exceptional caution’ in exercising a power to dismiss an action summarily. As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying ‘that the case of the plaintiff is so clearly untenable that it cannot possibly succeed’ (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome.
[56] Because s 31A(3) provides that certainty of failure (‘hopeless’ or ‘bound to fail’) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression ‘no reasonable prospect of successfully prosecuting the proceeding’ by reference to what is said in those earlier cases.”
Further the applicant drew attention to Spencer at [22] and [25] – [26]:
[22] In the Federal Court and in the Court of Appeal of Queensland, the criterion of a ‘reasonable prospect’ of success has been understood in analogous statutory settings to mean a ‘real’ rather than ‘fanciful’ prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’. The application of s 31A is not, in terms, limited to those categories.
…
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
[26] Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.”
Fourth, the AIC itself gives no indication of the second respondent’s reliance on the question as to whether the applicant was at the relevant times an “employee” of the first, and for that matter the second respondent, for the purposes of the FWA.
However there is no dispute between the parties that the second respondent’s solicitors wrote to the applicant’s solicitors on 24 March 2015 seeking further and better particulars of the matters set out in the SOC (see annexure “A” to the applicant’s written submissions).
Relevantly one of those matters was in the following terms:
“2. A) In relation to the definition of employee please provide the following information if the following details if they were made in writing:
a) When the Applicant heard about the available position?
b) In what form the job role was advertised?
c) What was the title advertised in the job role?
d) How the Applicant aware of advertised for the position?
e) When the Applicant applied for the position?
f) How the Applicant applied for interview?
g) Who conducted the interview?
h) What was the role offered to the Applicant?
i) Did the Applicant receive any appointment letter? If so please provide details?
j) What was the probation/ Training period discussed at the time of Interview?
k) What was the amount of hours discussed at the time of interview?
l) What was the terms of employment discussed at the time of interview?
B) If the above communication in paragraph 2 was oral please provide
i) When the interview took place?
ii) Who conducted the interview?
iii) Was the job offer made to the applicant?
iv) Did Applicant had accepted the job offer?
v) What were the terms of the job offer?
vi) What was the hourly rate and amount of hours to work was offered to the Applicant?”
[Errors in the original.]
The applicant’s response by letter on 13 April 2015 was the following (at [2](a)):
“The Applicant’s former husband, Vikram Prajapati, told her that she had to perform work for the First Respondent. The Applicant was not provided with any documentation regarding her employment with the First Respondent. The Applicant was required to do work in accordance with the Second Respondent’s directions.”
The respondents filed an “Amended Defence” on 30 April 2015 which contained the following (at [1]):
“The first Respondent denies paragraphs 1 of the Applicant's Statement of Claim.
Particulars
a) The First Respondent denies the Applicant was employee in the period alleged or at all;
b) The First Respondent denies the Applicant was employed by First Respondent in the period claimed or at all;
c) The First Respondent denies allegations in this sub-paragraph;
d) The First Respondent denies that the Applicant was employed and supervised by the Second Respondent.
e) The First Respondent denies the Applicant was an employee otherwise do not plead to paragraph 1(e).
f) The First Respondent denies the allegations.”
Further, the matter of “employee” is squarely raised in the second respondent’s written submissions which were filed in these proceedings four weeks before the filing of the applicant’s written submissions. In this light, I am satisfied that the applicant had reasonable notice, for the purposes of the disposition of the AIC, of this “threshold” issue raised by the second respondent.
The applicant’s written submissions in relation to the AIC refer to the second respondent’s submissions on the question of the applicant’s status as an “employee” of the first respondent (see applicant’s written submissions at [3]).
The applicant’s approach in submissions appeared to be that this was not a matter to be determined other than at, or following, a final hearing. Nevertheless, the applicant did press that she was an “employee” and made submissions said to be in support of that proposition.
I agree with the second respondent that the applicant’s substantive application should be dismissed as against the second respondent on the basis that the applicant, on her own pleadings and statements in her supporting affidavit, has no reasonable prospect of demonstrating that she was an employee of the first respondent.
Plainly, this conclusion has not been arrived at after a final hearing. The caution that must be exercised before summarily dismissing this application requires at least two things in the current cirsumstances. One, a focus on the applicant’s pleadings and statements in her affidavit evidence. Two, whether the applicant has been given a fair and reasonable opportunity to present her case in relation to the central issue informing the summary dismissal.
While the applicant’s submissions to a large degree focused on the question of the case against the second respondent in the matter of accessorial liability, and his knowledge of all of the aspects of the business of the first respondent, in comparison, very little appears to have been said in relation to the central question as to whether the applicant was an “employee” for the purposes of the FWA.
It may well be, as the applicant asserts, that she performed certain tasks at the first respondent’s place of business and she received no remuneration for this. However, what sits at the heart of her application is that the relief she seeks from the Court is predicated on breaches of the FWA.
The applicant’s SOC asserts that she was an employee of the first respondent as a kitchen hand from March to September 2012. Her affidavit provides a context for this as follows. She married her then husband in an “arranged marriage ceremony in India”. She moved to Australia and lived with her then husband’s parents, her then husband’s brother (the second respondent) and wife and children in the same house.
She “believed” that her then husband and his brother purchased a business (the first respondent). She was told by her then husband that she was to work at the business. She was taken to the business premises in or around March 2012 by her then husband. She performed certain tasks there. She was given direction by the second respondent who monitored her day to day activities.
Her SOC asserted that the second respondent was responsible for the “carriage control and conduct” of the first respondent, and “controlled” the applicant’s day to day activities in this context. She was not paid for work at all, and certainly not at least at the minimum rate required by the relevant Award. The claims in the SOC and the relief sought by the applicant arise from allegations that the first respondent contravened the relevant Award and various provisions of the FWA. The second respondent was knowingly concerned in these contraventions.
In short, the applicant’s claims seek to invoke s.44, s.45, s.536, and s.550 of the FWA. Section 44 and s.45 are concerned with the terms and conditions of employment provided by the National Employment Standards and by a Modern Award, and prohibit contravention of relevant provisions and terms.
For the purposes of s.44 and s.45 of the FWA, s.42 of the FWA defines “employee” as a “national system employee”. For the purposes of s.536 of the Act, s.529 also defines “employee” as a “national system employee”. “National system employee” is further defined in s.13 of the FWA as an employee “employed” or “usually employed” by a “national systems employer”. The second respondent does not dispute that the first respondent was at the relevant time a national system employer. The question in dispute is whether the applicant’s pleadings and affidavit before the Court raise a reasonable prospect of success to assert that she was employed by the first respondent.
Section 550 of the FWA is concerned with persons (in this case the applicant seeks to apply it to the second respondent) who are involved in a contravention under the FWA. In essence, this can be described as an accessorial liability provision. The section does not refer to or seek to define the term “employee”. However, plainly the contemplated contraventions arise from a relationship between an employer and an employee.
I note that the orders the applicant seeks in her substantive application are, in essence, orders and declarations arising from various claimed contraventions of the civil remedy provisions of the FWA.
Section 539 of the FWA identifies the persons who may apply for orders in relation to these contraventions. All of the orders sought by the applicant in relation to the claimed contraventions as set out in the SOC, are available to her if she meets one of the definitions of a “person” set out in column 2 of the relevant table. For current purposes, the only relevant definition available to the applicant is that of “employee”.
The applicant submitted that the second respondent has asked the Court to determine whether or not she was an employee of the first respondent. In this context, the applicant submitted that this question should properly be left to a final hearing.
While some of the language used by the second respondent in his written submissions appears to indicate that this is his position, I ultimately understood that when his written submissions are read holistically, and particularly in light of his oral submissions, the question posed by the second respondent in support of his AIC was whether the applicant’s pleadings, and her statements in her affidavit, gave rise to a reasonable prospect that she could ultimately establish that she was employed by the first respondent at the times she claimed.
The focus, therefore, for current purposes is not whether the applicant has established that she was an employee, but whether her material before the Court can be said to give rise to a reasonable prospect of successfully arguing that she was.
I note also in this context that the applicant has been legally represented by solicitors since the inception of her application, has had the benefit of counsel, and has had reasonable notice of, and opportunity to address, this question.
There did not appear to be a dispute between the parties that the question set out at [72] above was to be answered with reference to whether in an employment context there was a contract of employment (see the C v Commonwealth of Australia [2015] FCAFC 113 at [34]) between the applicant and, in the first instance, the first respondent.
In his submissions, the second respondent reminded the Court of the ordinary elements of a contract (see [15] of the second respondent’s written submissions):
“The ordinary elements of a contract are well known and understood:
a) There must be an ‘intention’ between the parties to create a legal relationship, the terms of which are enforceable.
b) There must be an offer by one party and its acceptance by the other.
c) The contract must be supported by valuable consideration.
d) The parties must be legally capable of making a contract.
e) The parties must genuinely consent to the terms of the contract.
f) The contract must not be entered into for any purpose which is illegal.”
Even taken at its highest, the applicant’s SOC, and what she has stated in her affidavit, proceeds on the assumption that she was an employee of the first respondent. There is no reasonable basis in support of the proposition that there was in existence at the relevant time a “contract of employment” involving her and the first, or for that matter the second, respondent.
At its highest, the applicant’s pleading and statements in her affidavit reveal that sometime around March 2012 her then husband, who is not a party to these proceedings, took her to the first respondent’s place of business and told her she was going to work there.
There is nothing in the applicant’s pleading, or her statement, to say she ever had any conversation, negotiation, or discussion with the second respondent, whom she has otherwise described as the controlling force of the first respondent, to indicate that any of the relevant elements of a contract of employment existed at the relevant times. Nor in the context of the “test” for the Court to apply now, could reasonably be said to give rise to some argument that such a contract existed, let alone its prospects of success.
Nor is there anything to indicate that any such basis exists from discussions with any other party on behalf of the first respondent, or for that matter, the second respondent.
On the applicant’s own statements, it is reasonable to infer that the business was a family business in which her then husband played no active role. Her statements were that although they travelled to the business together, he would proceed to his own place of work elsewhere.
In short, there is nothing to indicate that the applicant herself sought employment from the first or second respondent or was offered any such employment by either of them. There is nothing to indicate that she voluntarily agreed to enter into a contract of employment for valuable consideration.
I accept the applicant’s submission that in an “employment setting”, the Courts in Australia have taken note of the flexible and realistic approach taken by parties to contract making. The second respondent also recognised this in his submissions (referencing Damevski at [83] - [89] and see [172] – [174]).
The applicant’s reference to Damevski however, nonetheless otherwise highlights the difficulty for the applicant in the circumstances of this case which she herself has presented.
In Damevski, as the applicant submits, the majority found that the applicant in that case was an employee of the employer, even where the employer asserted, and believed, that the applicant was not an employee, because arrangements had been put in place for the person to be engaged to do work through a labour hire company.
In my respectful view, that finding arose in circumstances where the elements of employment (as set out at [76] above) otherwise arose in the circumstances of that case. That is not the situation in the current case.
It is the case, as the second respondent submits, that a contract of employment does not require anything in writing. In that light, the applicant’s reference to Branir is of assistance (see [19] above).
I cannot see that the applicant’s SOC or statements in her affidavit give rise to any reasonable prospect of successfully showing that the conduct of the applicant, and the first respondent, and the second respondent both on behalf of the first respondent and in his own right, “bespeaks of an intention to be legally bound to the essential elements of a contract” (Branir at [369]).
At its highest, the circumstances presented by the applicant, are that her then husband was the sole instigator of her attendance at the business of the first respondent. The business, on the applicant’s statement, was a family owned restaurant managed by her brother-in-law, the second respondent. It is important to note in this familial context that she and her then husband were living with her brother-in-law, his wife and children, and her parents-in-law at the same residence at the relevant times.
In short, there is nothing in the applicant’s statements to say that her attendance at the restaurant arose in a commercial setting. On her own statement, it arose in a family, and can even be said to be a domestic, setting (with emphasis on her then husband). This is particularly so in circumstances where she asserts that as a commercial entity it was the second respondent who had control of the first respondent. There is no basis to say that her then husband had any commercial role to play. As set out above, the applicant’s statements point to her then husband, and only her then husband, as the instigator of her actual attendance at the restaurant.
Before the Court, the applicant acknowledged that an intention to create a legal relationship (of the type necessary here) is not to be assumed (Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 at 310 per Handley JA, Balfour v Balfour [1919] 2 KB 571, Williamson v Suncorp Metway Insurance Ltd [2008] QSC 244 at [38], Ashton v Pratt (No.2) [2012] NSWSC 3 at [29] and Darmanin v Cowan [2010] NSWSC 1118 at [208]).
However there was no dispute that such a presumption can be rebutted. The applicant relies on what was said in Ermogenous concerning an intention to create legal relationships (at [24]). In that case, the High Court considered whether an intention to create a contractual relationship arose from an arrangement between the Archbishop of the Autocephalos Greek Orthodox Church in Australia, and another person to perform certain work.
The second respondent also relies on Ermogenous at [24], but directs attention also to [25] – [26]:
“[25] Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the ‘intention to create contractual relations’ requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
[26] In this context of intention to create legal relations there is frequent reference to ‘presumptions’. It is said that it may be presumed that there are some ‘family arrangements’ which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition.”
In this light, both parties before the Court agreed that the intention of the parties is to be assessed on an objective basis as derived from the state of affairs between the parties, to ascertain whether there was any intention to create a binding contract of employment.
The second respondent submitted that the applicant bears the burden of proof to establish that a contract of employment was formed between her and the first respondent (see Ermogenous at [26]). However, for current purposes, the relevant question is not whether the applicant has discharged this burden, but whether there are reasonable prospects of her doing so based on her pleading and statements. Noting again in this context that the applicant is legally represented and has had a reasonable opportunity to answer what is put against her by the second respondent.
The second respondent now submits that on the applicant’s “version” of relevant events, the discussion between her then husband and herself was not in the nature of an offer of employment, but a “request” to attend the family business.
I do not agree with the second respondent’s characterisation of what occurred as being a “request” by the applicant’s then husband. In the circumstances presented by the applicant’s statements, there are a number of contextual elements that inform the character of what the applicant reports of the relevant “discussion” with her then husband.
On her own statements, the applicant’s assertion is that, upon arrival in Australia, found herself in what reasonably may be described as a “traditional” situation. Her marriage had been “arranged”. She lived in what was an extended family environment. Her own statements, which for current purposes must be taken at face value, are that her then husband was “violent and controlling”. She was subject to family violence.
Her report of her going to the restaurant cannot be said to reflect any “request” made to her. It does not require any great understanding of the situation in which she found herself to see that what she reports as her then husband’s statement is not a request, but a direction that she was to go to the restaurant. The context referred to above simply reinforces that understanding.
Her going to work at the restaurant cannot be said to have been a “voluntary” act on her part. It cannot be said, on her own statements, and presentation of the circumstances, that she “voluntarily” entered into a contract of employment in the sense required by one of the elements to the formation of a contract of employment. She simply acquiesced with what was expected of, and imposed upon her, by her then husband given the particular family circumstances in which she found herself.
While the applicant’s situation may be described as unfortunate, particularly in her presentation of family violence, such matters are more properly addressed in other jurisdictions and other fora. The current focus can only be on the FWA, and the alleged contraventions of it. To establish the basis for the consideration of these allegations the applicant must, as set out above, raise a case with reasonable prospects of success of showing that she was an “employee” of the first respondent. To the extent that this requires the existence of a contract of employment the elements of “offer”, “consideration” and “voluntary acceptance” are not present in her own presentation of her case.
Nor, on her own statements, can it be said that there is a basis to argue that she entered into any agreement with the first or second respondent. It may be that the second respondent was the controlling force of the first respondent. However, there is nothing in her statements to say she had any relevant conversation, or interaction, with him about employment, let alone the terms and conditions of any such employment.
It is important to also note that, while the applicant’s statement says that her then husband had some “ownership” of the restaurant business, there is nothing to indicate that he had any authority, or capacity, to enter into a contract of employment on behalf of the first respondent, let alone bind it to any such contract.
The applicant’s statement includes a reference to three occasions where her then husband told her not to ask his brother for money, and to “just do your work”. This can be read with the applicant’s report of her mother-in-law’s comment that the applicant needed to work because, in context, the entire extended family needed to save money.
In my view, it is reasonable to see this as yet another element to support the conclusion that the applicant’s work at the restaurant was not as a result of a contract of employment, but arose from the family’s need for her to assist in the family business and to help the family save money.
The applicant’s statement, and what is set out in her SOC, assert that she attended at the restaurant 7 days a week for 14 hours each day for a period of approximately 6 months in 2012. There is nothing in her statement to say that she asked to be paid for her work. While she now believes she should have been paid, and should have received other benefits of employment, that belief is not sufficient to say she entered into, at the relevant time, any employment contract with the first, or for that matter the second, respondent.
The applicant’s statements about her interaction with the second respondent while at the restaurant, and in particular the direction he gave her as to the tasks to be performed, did not, in the absence of anything else, and in the circumstances set out above, create any reasonable basis to say that she performed work in the restaurant in the context of a contract of employment.
The extent of her statements, in total, support the view that she worked because the family needed her to do so, not for her immediate personal remuneration or gain, but for the longer term benefit of the family. In short, she worked at the restaurant in a family context, not in an employment contract context. Arising from the applicant’s own statements, there is no reasonable prospect of showing that any of the elements necessary to say there was an employment contract were present. She cannot be said to have been an “employee” for the purposes of the FWA.
For the reasons set out above, I have confined this consideration to the applicant’s own SOC and her statements. While the second respondent’s “witnesses” attempt to answer the applicant’s various assertions, and complaints, this material is not relevant to the current consideration. If for no other reason than adopting the caution necessary in dismissing an application at an interlocutory stage.
Before the Court, the applicant emphasised a number of other matters which she said specifically, although not exclusively, argued against the relief now sought by the second respondent.
First, the applicant asserted that it would be “unfair” of the Court to strike out her application in circumstances where the second respondent had not complied with the Court’s Rules.
The complaint was explained as follows. At [40] of the SOC the applicant had made a number of substantial allegations against the second respondent. The second respondent’s response, as set out in his formal Response, was “entirely inadequate”, and did not comply with the manner in which the Response should have been made in accordance with the FCC Rules (in particular, r.4.03). For this reason, the applicant claimed that she did not know the case put against her in relation to the allegations she made.
I note that the matters set out at [40] of the SOC all concern the assertion that the second respondent had knowledge of the contraventions of the FWA concerning such matters as the failure to pay wages and the like.
It is clear that the SOC at [40] is relevant to the second issue raised in the second respondent’s case in support of the AIC, and not the first. It must be said that this illustrates the applicant’s failure, or unwillingness, to grasp that the first argument or issue put in support of the relief sought in the AIC concerned an important “threshold” issue involving the actual engagement of the FWA which contained the source for the contraventions and breaches she asserted.
For the reasons set out above, I am satisfied that the applicant had a reasonable opportunity to comprehend, and address, this particular critical threshold issue.
Second, the applicant submitted that the first respondent was no longer trading and may not be in a position to meet any order which may be made by the Court for “underpayment or pecuniary penalty”. In this light, if the second respondent were to succeed in his AIC the “practical outcome” would be that the applicant would not be able to receive any money.
I cannot see how this is relevant to the question of whether the applicant entered into a contract of employment, or indeed that it is a relevant consideration in relation to the second respondent.
For the reasons set out above, the applicant’s claims against the second respondent should be dismissed. The issue remains as to the consequence of this in relation to the first respondent given the basis of that dismissal.
As stated above, the AIC was only made by, and on behalf of, the second respondent. There is no formal application before the Court in the manner contemplated by the Rules of the Court for the dismissal of the substantive application as against the first respondent.
Before the Court, as also stated above, the counsel for the second respondent, who also represented the first respondent generally in these proceedings, submitted that if the Court were to dismiss the application against the second respondent on the issue of the lack of a contract of employment (the “first” issue), as opposed to the “second” issue raised in support of the AIC, then this would have consequences for the first respondent.
The second respondent’s counsel sought that in the event that the Court were to find for the second respondent in relation to the first issue then the Court should dispense with the Rules requiring formal application in relation to the first respondent.
The second respondent submitted that the power in s.17A of the FCCA Act can be exercised in appropriate circumstances on the Court’s own motion. However, given the summary nature of the relief which the second respondent says should now also extend to the first respondent, it is preferable to proceed on the basis of the oral application made before the Court, that the Rules requiring the filing of a “formal” AIC by the first respondent be dispensed with. This is because such an approach properly allows matters of notice to the applicant, that is, procedural fairness, to be considered.
The application now made by the first respondent requires compliance with r.13.09 of the FCC Rules as to the filing of the appropriate form, and r.4.01(4) and r.4.08(3) of the FCC Rules requiring an affidavit in support. The first respondent has not complied with these rules.
However, r.1.06 of the FCCA Rules provides that the Court may dispense with compliance with the Rules if it is in the interests of justice to do so.
In my view, one important object of r.13.09, r.4.01 and r.4.08 of the FCC Rules is to provide meaningful notice to a party engaged in substantive proceedings of an interlocutory application raised by another party. However, in the current case, and as set out above, I am satisfied that the applicant had reasonable notice of the first issue raised by the second respondent in his AIC. The consequences for the applicant’s application in relation to the first respondent, if the second respondent was successful on the first issue, would have been clear from the second respondent’s submissions.
In my view it is in the interests of justice to end the proceeding against the first respondent in circumstances where the basis of the summary dismissal of that part of the application is for the identical reason as for the second respondent, and in respect of which the applicant had, or should have had, reasonable notice of what was being put against her.
Therefore, I exercise the discretion pursuant to r.1.06 to dispense with rr.13.09, 4.08(3) and 4.01(4) of the FCC Rules. For the reasons set out above, the substantive application as it also relates to the first respondent should be dismissed. I will make that order.
In his submissions the second respondent also asked for an order for costs. Section 570 of the FWA provides:
“(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
The second respondent directs attention to Ashby v Slipper (No.2) [2014] FCAFC 67 at [35]:
“Section 570 of the FWA ‘reflects a policy of protecting a party instituting proceedings from liability for costs’ and ‘costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order’: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60]. Whilst Kangan was decided before the introduction of the FWA and concerns the former s 347(1) of the Workplace Relations Act 1996 (Cth) (WRA), s 347(1) of the WRA was similar in terms to s 570(2)(a) of the FWA. Moreover ‘[a] party cannot be said to have commenced a proceeding ‘without reasonable cause’…simply because his argument proves unsuccessful’, and costs will not be awarded against a party whose unsuccessful argument was ‘not unworthy of consideration’: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 473. Only a case that has ‘no real prospects of success, or was doomed to failure’ will meet the tests set out in s 570(2)(a) of the FWA: Kangan at [60]. Each of these matters is a question of fact. They were neither entertained nor determined by the Court.”
The second respondent submits that he should be awarded costs because the “pleaded” case against him was “totally deficient” in alleging no facts from which the Court could have found he was knowingly involved in any of the alleged contraventions of the FWA. It was in this context that the second respondent sought costs. That is, because that specific claim against the second respondent (the second issue) had no real prospect of success.
However, as set out above in this judgment, this is not the basis on which the applicant’s application has been summarily dismissed. I did not understand the second respondent to apply for costs on the basis that there was no reasonable case raised that the applicant was an employee of the first respondent (the first, and successful, issue) (see second respondent’s written submissions at [52] – [55]).
The first respondent, who did not make the AIC and was not formally a part of it, has not sought costs. There is a presumption in the FWA that costs should only be considered in certain limited circumstances. That is the usual concept that “costs follow the event”, is not the starting point in any consideration as to costs. The first respondent has not asked for costs, nor in my view, given the presumption in the FWA, should costs be contemplated in the absence of any application and supporting argument from the first respondent. In all, I will make an order that there be no order as to costs in this matter.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 2 November 2016
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