Ross v Paea Trading as Bombora Café - [2020] FCA 766

FEDERAL COURT OF AUSTRALIA
Ross v Paea trading as Bombora Café [2020] FCA 766

File number: NSD 1476 of 2019

Judge: PERRAM J

Date of judgment: 3 June 2020

Catchwords:
INDUSTRIAL LAW – where Applicant employed as cook by First Respondent – where Applicant claims unpaid wages, annual leave, taxation and superannuation under Fair Work Act 2009 (Cth)(‘the Act’) – whether the Restaurant Industry Award 2010 applies to First Respondent – whether First Respondent is employer under s 47 of the Act – whether First Respondent contravened the Act

SUPERANNUATION – whether employee can sue employer where employer fails to make superannuation contributions to complying fund – nature of compulsory superannuation laws as tax in constitutional sense

BANKRUPTCY – where First Respondent has filed for bankruptcy prior to Court reserving judgment – whether leave granted to Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) – where Court has already heard evidence in the case – where trustee of bankrupt estate neither agrees nor objects to leave being granted

PRACTICE AND PROCEDURE – where Applicant assisted by unadmitted acquaintance who appears to have been holding himself out as lawyer – whether judgment reasons should be referred to Law Society of New South Wales

Legislation:
Constitution ss 51(ii), 51(xx), 51(xxxi), 51(xxxvii), 55, 122

Bankruptcy Act 1966 (Cth) s 58(3)(b)

Evidence Act 1995 (Cth) s 29(2)

Fair Work Act 2009 (Cth) ss 30H, 30N, 30L, 42, 44, 45, 46, 47, 61, 87, 90, 539, 545

Federal Court of Australia Act 1976 (Cth) s 51A(1)

Superannuation Guarantee Charge Act 1992 (Cth) ss 3, 5, 6

Superannuation Guarantee (Administration) Act 1992 (Cth) ss 17, 19, 23, 33, 34, 36, 46, 65

Taxation Administration Act 1953 (Cth) s 18-15 of Sch 1

Restaurant Industry Award 2010 cl 4, 20, 35

Industrial Relations (Commonwealth Powers) Act 2009 (NSW) ss 3, 5

Legal Profession Uniform Law (NSW) s 10(1)

Cases cited:
Cassaniti v Commissioner of Taxation [2010] FCA 641; 186 FCR 480

Re Mendonca; ex parte Commissioner of Taxation (1969) 15 FLR 256 at 259

Date of hearing: 18-19 December 2019

Date of last submissions: 7 January 2020 (Applicant)

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 75

Counsel for the Applicant: The Applicant appeared in person with the assistance of Mr D Johnston

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondent: The Second Respondent did not appear

Table of Corrections

2 July 2020 In paragraph 61, ‘Ms Paea’ has been replaced with ‘Ms Ross’

ORDERS

NSD 1476 of 2019

BETWEEN:
TAHLIA JADE ROSS

Applicant

AND:
JEVAN PAEA TRADING AS BOMBORA CAFÉ ABN 58 776 169 949

First Respondent

CATHERINE PAEA

Second Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

3 JUNE 2020

THE COURT ORDERS THAT:
1.Leave be granted to the Applicant to proceed against the Bankrupt Estate of the First Respondent.
2.Judgment for the Applicant against the First Respondent for $17,583.26.
3.The…

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: [2020] FCA 766
Decision Date: 3 June 2020

CaseChat Overview and Summary

Ms Ross brought a claim against Mr Paea and another for unpaid wages, annual leave, taxation, superannuation and other relief under the Fair Work Act 2009 (Cth) in the Federal Circuit Court. The Court had to determine whether Ms Ross could proceed against Mr Paea despite his bankruptcy, whether the Restaurant Industry Award 2010 applied to Mr Paea, and whether he was an employer under the Fair Work Act. The Court also considered whether the compulsory superannuation laws were tax in the constitutional sense and if the Court should refer the matter to the Law Society of New South Wales due to Mr Paea being represented by someone who appeared to be a lawyer but was not admitted.

The Court found that granting leave for Ms Ross to proceed against Mr Paea's bankrupt estate was in the public interest as the Court had already heard evidence in the case. The Court held that the Restaurant Industry Award 2010 applied to Mr Paea and that he was an employer under the Fair Work Act. The Court found that compulsory superannuation laws were not tax in the constitutional sense. The Court noted that Mr Paea was represented by someone who appeared to be a lawyer but was not admitted and decided to refer the matter to the Law Society of New South Wales.

The Court granted leave for Ms Ross to proceed against Mr Paea's bankrupt estate and ordered that judgment be entered for Ms Ross against Mr Paea for the sum of $17,583.26. The Court also ordered that interest be paid on that sum from 11 November 2017 at the cash rate plus 1% together with an interest premium of 0.1% calculated on a monthly basis in arreas and without interest being added to the principal sum. The matter was stood over for a further case management hearing in relation to the Applicant's claim against the Second Respondent. The Court ordered that a copy of these reasons be provided to the President of the Law Society of New South Wales and that the President's attention be drawn to the Court's comments about Mr Paea's representation.

Orders

Orders of the court

1. Leave be granted to the Applicant to proceed against the Bankrupt Estate of the First Respondent.

2. Judgment for the Applicant against the First Respondent for $17,583.26.

3. The Applicant be entitled to interest on that sum from 11 November 2017 at the cash rate plus 1% together with an interest premium of 0.1% calculated on a monthly basis in arreas and without interest being added to the principal sum.

4. The matter be stood over for a further case management hearing on 17 June 2020 in relation to the Applicant’s claim against the Second Respondent.

5. A copy of these reasons be provided to the President of the Law Society of New South Wales and the President’s attention be drawn to my comments about Mr Johnston at [66]-[74].

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Ross makes the following claims for relief, which appear to have been made under the FW Act:(1)unpaid wages in the amount of $33,814.00;(2)unpaid withheld taxation in the amount of $19,897.00;(3)unpaid annual leave in the amount of $4,093.00;(4)unpaid superannuation in the amount of $8,421.00;(5)interest on (1)-(4);(6)compensation in the amount of $66,252.00; and(7)an order that the Respondents pay a pecuniary penalty of unknown or unspecified quantity in respect of the contraventions of the FW Act.THE EVIDENCE Ms Ross relied on the following evidence at the hearing:·An affidavit of Ms Ross affirmed on 5 November 2019 which was read without objections. The annexures to that affidavit, TRSUPP-001 through TRSUPP-015, were treated as being in evidence. Ms Ross was cross-examined at the hearing on her experience with seeking treatment under a mental health plan prior to her employment and cash payments made during her employment.·A further affidavit of Ms Ross affirmed on 26 November 2019, which was read without objections, and its annexures TR-1 through TR-16 were treated as being in evidence.·A witness statement of Mr Cody Vinten made on 31 October 2019, which was treated as being in evidence. It was noted in the hearing that his name is misspelt as ‘Vincent’ on the witness statement itself. Mr Vinten was cross-examined on 18 December 2019 by Mr Paea. ·A witness statement of Ms Samantha Cocks also made on 31 October 2019, which was treated as being in evidence. Ms Cocks was cross-examined on 18 December 2019. Mr Paea relied on the following evidence:·An affidavit of Mr Paea affirmed on 30 November 2019, which was read without objections together with its annexures A through J which were treated as being in evidence.·Mr Paea also gave evidence in narrative form pursuant to a direction under s 29(2) of the Evidence Act 1995 (Cth). I took this course because the prospect of Mr Paea asking himself non-leading questions under the eagle-eye of Mr Johnston was just too much. He was cross-examined by Mr Johnston on 18 and 19 December 2019.·Throughout the hearing Mr Paea also tendered various documents including a doctor’s certificate concerning the Second Respondent, receipts of cash payments and emails in respect of his debtor’s petition application. LEAVE TO PROCEED The first issue which needs to be determined is whether I should grant Ms Ross leave to proceed against Mr Paea notwithstanding his bankruptcy. Prior to the first day of the hearing Mr Paea informed me he had filed an application for bankruptcy. The application was accepted on 19 December 2019. Subsequently I was informed by the Australian Financial Security Authority (Insolvency and Trustee Services) (‘AFSA’) that it neither consented nor opposed a grant of leave to proceed under s 58(3)(b) of the Bankruptcy Act 1966 (Cth). As I have already mentioned, Ms Ross actively sought the grant of leave. By the time I was notified that AFSA had accepted Mr Paea’s bankruptcy application, I had heard the evidence of the case. If leave is not granted then AFSA will need to determine the quantum of Ms Ross’ claim for itself on her submission of a Proof of Debt. This will require the same ground to be traversed as I have already traversed although perhaps not encumbered with the need to run a trial bearing some kind of semblance to ordinary civil procedure. It would be wasteful for me having heard the evidence to decline to decide the case and thereby to require AFSA to undertake what I have already done. In that circumstance, I propose to grant Ms Ross leave to proceed against the bankrupt estate on the grounds of public utility.THE RELEVANT AWARD RATES

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 1476 of 2019
Judge:	PERRAM J
Date of judgment:	3 June 2020
Catchwords:	INDUSTRIAL LAW – where Applicant employed as cook by First Respondent – where Applicant claims unpaid wages, annual leave, taxation and superannuation under Fair Work Act 2009 (Cth)(‘the Act’) – whether the Restaurant Industry Award 2010 applies to First Respondent – whether First Respondent is employer under s 47 of the Act – whether First Respondent contravened the Act SUPERANNUATION – whether employee can sue employer where employer fails to make superannuation contributions to complying fund – nature of compulsory superannuation laws as tax in constitutional sense BANKRUPTCY – where First Respondent has filed for bankruptcy prior to Court reserving judgment – whether leave granted to Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) – where Court has already heard evidence in the case – where trustee of bankrupt estate neither agrees nor objects to leave being granted PRACTICE AND PROCEDURE – where Applicant assisted by unadmitted acquaintance who appears to have been holding himself out as lawyer – whether judgment reasons should be referred to Law Society of New South Wales
Legislation:	Constitution ss 51(ii), 51(xx), 51(xxxi), 51(xxxvii), 55, 122 Bankruptcy Act 1966 (Cth) s 58(3)(b) Evidence Act 1995 (Cth) s 29(2) Fair Work Act 2009 (Cth) ss 30H, 30N, 30L, 42, 44, 45, 46, 47, 61, 87, 90, 539, 545 Federal Court of Australia Act 1976 (Cth) s 51A(1) Superannuation Guarantee Charge Act 1992 (Cth) ss 3, 5, 6 Superannuation Guarantee (Administration) Act 1992 (Cth) ss 17, 19, 23, 33, 34, 36, 46, 65 Taxation Administration Act 1953 (Cth) s 18-15 of Sch 1 Restaurant Industry Award 2010 cl 4, 20, 35 Industrial Relations (Commonwealth Powers) Act 2009 (NSW) ss 3, 5 Legal Profession Uniform Law (NSW) s 10(1)
Cases cited:	Cassaniti v Commissioner of Taxation [2010] FCA 641; 186 FCR 480 Re Mendonca; ex parte Commissioner of Taxation (1969) 15 FLR 256 at 259
Date of hearing:	18-19 December 2019
Date of last submissions:	7 January 2020 (Applicant)
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	75
Counsel for the Applicant:	The Applicant appeared in person with the assistance of Mr D Johnston
Counsel for the First Respondent:	The First Respondent appeared in person
Counsel for the Second Respondent:	The Second Respondent did not appear

Table of Corrections
2 July 2020	In paragraph 61, ‘Ms Paea’ has been replaced with ‘Ms Ross’