Ramsey Food Processing Pty Ltd v Tomlinson - [2014] NSWCA 237

Court of Appeal

New South Wales

Case Title: Ramsey Food Processing Pty Ltd v Tomlinson

Medium Neutral Citation: [2014] NSWCA 237

Hearing Date(s): 22/05/2014

Decision Date: 21 July 2014

Before: Meagher JA at [1];
Ward JA at [22];
Emmett JA at [23]

Decision:
1 To the extent necessary, leave be granted to appeal from the order made on 13 May 2013 that paragraph 8 of the defence filed by the appellant be set aside.
2 The appeal be allowed.
3 The orders made by the District Court on 13 May 2013 be set aside and, in lieu of those orders, there be substituted verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs.
4 The respondent pay the appellant's costs of this appeal.
5 The respondent, if otherwise qualified, be granted a certificate under the Suitors' Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: ESTOPPEL - former adjudication - issue estoppel - matters necessary to the decision - identity of parties - whether the Fair Work Ombudsman was the privy of the respondent employee in earlier proceedings - whether the issue of the respondent's employment by the appellant had been decided in the earlier proceedings

EMPLOYMENT LAW - the relationship of employer and employee - whether the respondent was an employee of the appellant - whether that relationship was affected by a company inter-positioned between the appellant and respondent

Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Civil Procedure Act 2005 (NSW), s 100
Fair Work Act 2009 (Cth), ss 680, 681, 682
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 3, Sch 18
Federal Meat Industry (Processing) Award 2000, cll 9, 10
Workers Compensation Act 1987 (NSW), ss 3, 9, 9A, 151A, 151C, 151H, 151G, 155
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 250, 280A, 280B, 281, 315, 318A, 322
Workplace Relations Act 1996 (Cth), ss 717, 719

Cases Cited: Blair v Curran [1939] HCA 23; 62 CLR 464
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226
Dong v Monkiro Pty Ltd [2005] NSWSC 749
Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; 198 FCR 174
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641
Jackson v Goldsmith [1950] HCA 22; 81 CLR 446
Ramsay v Pigram [1968] HCA 34; 118 CLR 271
Rogers v The Queen [1994] HCA 42; 181 CLR 251
Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCA 237
Decision Date: 21 July 2014

CaseChat Overview and Summary

In *Ramsey Food Processing Pty Ltd v Tomlinson*, the appellant, Ramsey Food Processing Pty Ltd, appealed to the Court of Appeal of New South Wales against an order of the District Court that had set aside a paragraph of its defence. The underlying dispute concerned whether the respondent, Mr. Tomlinson, was an employee of the appellant, a relationship that was complicated by the interposition of another company between them.

The central legal issues before the Court of Appeal were whether issue estoppel operated to prevent Mr. Tomlinson from pursuing his claim, and whether the issue of his employment by the appellant had been definitively decided in earlier proceedings involving the Fair Work Ombudsman. The court also had to consider whether the Fair Work Ombudsman was a privy of Mr. Tomlinson for the purposes of issue estoppel, and how the inter-positioned company affected the determination of the employment relationship.

The Court of Appeal reasoned that the earlier proceedings, while involving the Fair Work Ombudsman, had not determined the specific issue of Mr. Tomlinson's employment by the appellant in a manner that would give rise to issue estoppel. The court found that the Fair Work Ombudsman was not a privy of Mr. Tomlinson, and that the identity of the parties and the issues decided in the prior proceedings were not sufficiently aligned to establish the necessary elements for issue estoppel. Consequently, the court concluded that the District Court had erred in setting aside the paragraph of the defence.

The Court of Appeal allowed the appeal, setting aside the District Court's orders and substituting a verdict and judgment for the defendant (the appellant). The court ordered that the plaintiff (the respondent) pay the defendant's costs in the District Court and the respondent pay the appellant's costs of the appeal. The respondent was also granted a certificate under the *Suitors' Fund Act 1951* (NSW).

Orders

Orders of the court

1 To the extent necessary, leave be granted to appeal from the order made on 13 May 2013 that paragraph 8 of the defence filed by the appellant be set aside.

2 The appeal be allowed.

3 The orders made by the District Court on 13 May 2013 be set aside and, in lieu of those orders, there be substituted verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs.

4 The respondent pay the appellant's costs of this appeal.

5 The respondent, if otherwise qualified, be granted a certificate under the Suitors' Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Ramsey Food Processing Pty Ltd v Tomlinson
Medium Neutral Citation:	[2014] NSWCA 237
Hearing Date(s):	22/05/2014
Decision Date:	21 July 2014
Before:	Meagher JA at [1]; Ward JA at [22]; Emmett JA at [23]
Decision:	1 To the extent necessary, leave be granted to appeal from the order made on 13 May 2013 that paragraph 8 of the defence filed by the appellant be set aside. 2 The appeal be allowed. 3 The orders made by the District Court on 13 May 2013 be set aside and, in lieu of those orders, there be substituted verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs. 4 The respondent pay the appellant's costs of this appeal. 5 The respondent, if otherwise qualified, be granted a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ESTOPPEL - former adjudication - issue estoppel - matters necessary to the decision - identity of parties - whether the Fair Work Ombudsman was the privy of the respondent employee in earlier proceedings - whether the issue of the respondent's employment by the appellant had been decided in the earlier proceedings EMPLOYMENT LAW - the relationship of employer and employee - whether the respondent was an employee of the appellant - whether that relationship was affected by a company inter-positioned between the appellant and respondent
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Civil Procedure Act 2005 (NSW), s 100 Fair Work Act 2009 (Cth), ss 680, 681, 682 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 3, Sch 18 Federal Meat Industry (Processing) Award 2000, cll 9, 10 Workers Compensation Act 1987 (NSW), ss 3, 9, 9A, 151A, 151C, 151H, 151G, 155 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 250, 280A, 280B, 281, 315, 318A, 322 Workplace Relations Act 1996 (Cth), ss 717, 719
Cases Cited:	Blair v Curran [1939] HCA 23; 62 CLR 464 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 Dong v Monkiro Pty Ltd [2005] NSWSC 749 Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; 198 FCR 174 Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 Ramsay v Pigram [1968] HCA 34; 118 CLR 271 Rogers v The Queen [1994] HCA 42; 181 CLR 251 Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods…