Vlado Adonovski v Park Tec Engineering Pty Ltd
[2009] NSWCA 305
•27 October 2009
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Vlado Adonovski v Park Tec Engineering Pty Ltd and Anor [2009] NSWCA 305
FILE NUMBER(S):
040367/08
HEARING DATE(S):
9 September 2009
JUDGMENT DATE:
27 October 2009
PARTIES:
Vlado Adonovksi (Appellant)
Park Tec Engineering Pty Ltd (First Respondent)
Barbeques Galore Pty Ltd (Second Respondent)
JUDGMENT OF:
Tobias JA Young JA Sackville AJA
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
1911/2007
LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ
LOWER COURT DATE OF DECISION:
30 July 2008
COUNSEL:
Norton SC/Fraser (Appellants)
Watson SC/ Berberian (Respondents)
SOLICITORS:
Bydens Law Office (Appellant)
HWL Ebsworth (Respondents)
CATCHWORDS:
EMPLOYMENT- identity of injured worker's employer within group of companies- indicia for determining employer- separate question answered
LEGISLATION CITED:
Civil Procedure Act 2005 (NSW), s 56
Industrial Relations Act 1996 (NSW), s 123
Industrial Regulations (General) Regulation 2001 (NSW), cl 7
Limitation Act 1969 (NSW), s 50C
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Chapter 7
CATEGORY:
Separate question
CASES CITED:
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Shaw v Bindaree Reef Pty Ltd [2007] NSWCA 125
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
Warren v Coombes [1979] HCA 9; 142 CLR 531
TEXTS CITED:
DECISION:
1. To the extent necessary, grant the appellant leave to appeal against Orders (c) and (d) made by Johnstone DCJ on 30 July 2008, dismissing the Appellant’s Motion and ordering the appellant to pay the respondents’ costs of the Appellant’s Motion.
2. Appeal allowed in part.
3. Set aside Orders (a) and (b) made by Johnstone DCJ on 30 July 2008 striking out the appellant’s Statement of Claim and dismissing the proceedings.
4. Pursuant to UCPR r 28.2, the following question be determined separately from any other question in the proceedings:“On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?”
5. Answer the separate question as follows: “The appellant was employed by Barbeques Galore and not by Park-Tec.”
6. Set aside Order (d) made by Johnstone DCJ on 30 July 2008, insofar as it orders the appellant to pay the respondents’ costs of the substantive proceedings.
7. In lieu of Order (d) made by Johnstone DCJ, insofar as it is set aside by Order 6 above, Park-Tec to pay the appellant’s costs in relation to Park-Tec’s amended Notice of Motion filed on 10 March 2008 (including the costs of determining the separate question identified in the judgment of Johnstone DCJ).
8. Remit the proceedings to the District Court for determination consistently with these reasons.
9. Appeal otherwise dismissed.
10. The respondents to pay the appellant’s costs of the appeal, insofar as the appeal relates to the determination of Park-Tec’s ANM and the orders striking out the appellant’s statement of claim and dismissing the proceedings.
11. The appellant to pay the respondents’ costs of the appeal (including any application for leave to appeal) insofar as the appeal relates to the orders dismissing the Appellant’s Motion.
12. The respondents, if otherwise qualified, should have a certificate under the Suitors’ Fund Act 1957 (NSW).
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40367 of 2008
TOBIAS JA
YOUNG JA
SACKVILLE AJA27 October 2009
ANDONOVSKI v PARK-TEC ENGINEERING PTY LTD & ANOR
Judgment
TOBIAS JA: I agree with Sackville AJA.
YOUNG JA: I agree with Sackville AJA.
SACKVILLE AJA: The substantial issue debated on this appeal concerns the identity of the company which employed the appellant in March 2004 when he sustained an injury in the course of his employment. According to the appellant, he was employed by the second respondent (“Barbeques Galore”), the parent company of the Barbeques Galore Group. According to the respondents, the appellant was employed by the first respondent (“Park-Tec”), one of the subsidiaries within the Barbeques Galore Group.
If the appellant is right, he is entitled to continue the proceedings he has instituted against Park-Tec claiming damages for personal injuries he sustained as a result of Park-Tec’s alleged failure to provide a safe system of work. If the respondents are right, the appellant’s action against Park-Tec was rightly dismissed by the primary Judge, Johnstone DCJ, because the appellant failed to comply with preconditions laid down in Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) that had to be satisfied before he could institute proceedings against his employer. The proceedings before the primary Judge, Johnstone DCJ, and this Court have been conducted on the basis that the identity of the appellant’s employer at the relevant time depends on the general law of employment, rather than on the application of any statutory definitions or provisions.
At the time the appellant was injured, Barbeques Galore was a publicly listed company. It is common ground that Barbeques Galore ceased to be a listed company some time after the appellant was injured. Nothing turns on Barbeques Galore’s changed status.
BACKGROUND
Park-Tec was originally an independent company which supplied products to the Barbeques Galore Group. Barbeques Galore acquired all the shares in Park-Tec and took over its operations at some time before 1986.
The appellant commenced employment within the Barbeques Galore Group in late 1996 or early 1997. In about 1999 he began to undertake work as a truck driver. However, he also undertook what he described as some of the “heavier fabrication work” at premises located at 46 Princes road, West Auburn (“the Premises”), where Park-Tec manufactured components for barbecues and other consumer durables.
In 2004, according to Mr Nicola, the General Manager of Park-Tec, GLG Australia Pty Ltd (“GLG”), another company within the Barbeques Galore Group, leased the Premises. The written lease was not in evidence, but Mr Nicola said that he had seen it. Mr Nicola was unaware of any formal licence agreement between GLG and Park-Tec, but said that in the internal accounting within the Barbeques Galore Group, Park-Tec was charged with ”overheads for the rent”. He thought, however, that GLG actually paid the rent in respect of the Premises to the lessor.
On 11 March 2004, the appellant was working on a platform at the Premises. He was attempting to empty some cardboard waste contained in a wire cage which had been placed on a pallet, when he encountered difficulties in opening the cage doors. He claims that he was injured when the cage doors flew open as he pulled them, causing him to fall backwards from the platform onto the concrete floor.
On 19 March 2004, the appellant signed a workers compensation claim form. The employer’s name was recorded on that form, in typed characters, as “PARK-TEC ENGINEERING PTY LTD”. The claim form was submitted to Allianz, which was the workers compensation insurer for both Park-Tec and Barbeques Galore, but under separate policies.
On 10 November 2004, Mr John Nettle sent a letter to the appellant on the letterhead of Barbeques Galore. Mr Nettle was identified in the heading to the letter as the “Pay and Personnel Manager”. The letter included the following:
“We note that you allege to have suffered an injury out of and in the course of your employment on 11 March 2004.
This company has tried to accommodate your physical incapacity. Unfortunately you have not been able to return to full-time normal duty. Medical evidence you supplied dated 28 October 2004 indicated you are unable to return to normal duty in the foreseeable future.
We advise therefore that as and from 14 November 2004, as per your medical certificate, your services have been terminated and all payments will be made directly to you by our insurance company from 15 November 2004.
We ask that you please contact … at Allianz Australia Workers Compensation NSW Ltd on … for any further enquiries regarding future benefits.
We have also enclosed a tax form to be completed by you and forwarded onto Allianz Australia as soon as possible to ensure that your payments can be made properly.”
THE DISTRICT COURT PROCEEDINGS
On 8 March 2007, a few days short of three years from the date of the accident, the appellant instituted proceedings in the District Court against Park-Tec. The statement of claim alleged that in March 2004 Park-Tec was the occupier of the Premises and the appellant was employed by Barbeques Galore. The appellant pleaded that he had sustained injuries by reason of Park-Tec’s negligence in failing to ensure that the doors of the wire cage worked smoothly and in failing to institute a safe waste disposal system on the Premises.
On 5 June 2007, Park-Tec filed a motion seeking dismissal of the appellant’s Statement of Claim. The motion did not state the grounds upon which Park-Tec sought the order. However, it appears that Park-Tec maintained that the appellant’s claims against it could not succeed because the appellant had not complied with the preconditions for an action in damages against his employer laid down in Chapter 7 of the WIM Act. As I have noted, it is now common ground (and was before the primary Judge) that the appellant cannot maintain his proceedings against Park-Tec if he was employed by Park-Tec at the time he sustained his work-related injury.
On 10 March 2008, Barbeques Galore filed a document entitled “Amended Notice of Motion” (“ANM”) in the District Court proceedings. The ANM sought
“an order pursuant to [Uniform Civil Procedure Rules 2005 (NSW), r 28.2] as to the identity of the entity which was the [appellant’s] employer … on or about 11 March 2004”.
The ANM asked the Court to “make a binding determination in identifying Park-Tec … as the [appellant’s] employer”. It is rather curious that the ANM was filed by Barbeques Galore, since it appears not to have been a party to the proceedings at the time the ANM was filed. It is also curious that the ANM did not, in terms, identify the question that Barbeques Galore wished the Court to determine.
On 28 March 2008, a directions hearing was held before Gibb DCJ. Her Honour granted leave to the appellant to file an Amended Statement of Claim against Park-Tec and directed Park-Tec to file a defence. Her Honour also directed the appellant to file a motion seeking both an extension of time to institute proceedings against Barbeques Galore and leave to file an Amended Statement of Claim “joining that entity”. Barbeques Galore’s ANM was stood over, while Park-Tec’s motion seeking dismissal of the proceedings was discontinued.
On 28 April 2008, the appellant filed a motion (“Appellant’s Motion”) seeking
an order pursuant to the Limitation Act 1969 (NSW), Pt 2, Div 6, extending the time for the commencement of proceedings by him against Barbeques Galore; and
leave to file an Amended Statement of Claim in a form annexed to the motion.
Notwithstanding Gibb DCJ’s directions, it appears that on 28 April 2008 the appellant filed an Amended Statement of Claim (“ASC”) purporting to join Barbeques Galore as the second defendant in the proceedings. The ASC pleaded that:
“The [appellant] being uncertain as to which of [Park-Tec] or Barbeques Galore … did not employ him, sues [Park-Tec] and proposes to sue Barbeques Galore … with the intention of bringing a claim against whichever of [Park-Tec] or Barbeques Galore … did not employ him”.
Barbeques Galore’s ANM and the Appellant’s Motion came on for hearing before the primary Judge on 3 July 2008. His Honour inquired whether the appellant’s counsel opposed an order being made for the separate determination of a separate question. The response from the appellant’s counsel was somewhat equivocal, but was to the effect that, although the order was opposed, it would be convenient to deal with all matters. The primary Judge then stated that he would order that
“the question of who was the [appellant’s] employer at the relevant date be determined as a separate issue”.
He also said that he would proceed to a hearing both on that question and on the Appellant’s Motion.
The hearing then continued. Affidavits were read and deponents were cross-examined. The witnesses who gave oral evidence included the appellant and Mr Nicola. Mr Nettle, the signatory to the letter of 10 November 2004 terminating the appellant’s employment, was not called by the respondents.
At the conclusion of the hearing, the primary Judge inquired of counsel whether they still wanted him to decide what he said was the “preliminary point”. According to the transcript, he received an affirmative answer from the appellant’s counsel. The primary Judge indicated that he would consider the parties’ written submissions before delivering judgment.
THE PRIMARY JUDGMENT
In the primary judgment, his Honour identified the separate issue for determination as
“whether [the appellant] was employed, at the time he alleges he was injured, by Park-Tec or by [Barbeques] Galore”.
His Honour observed that it was common ground that if Park-Tec was the appellant’s employer at the relevant time, the proceedings could not be maintained against it.
It should be noted that the primary Judge’s formulation of the separate question in his judgment did not follow the language of the ANM. Nor was the formulation in precisely the terms stated by his Honour at the commencement of the hearing. The question as framed in the judgment assumes that the appellant’s employer at the relevant time must have been either Park-Tec or Barbeques Galore. This appears to reflect the basis upon which the parties approached the hearing.
The primary Judge observed that the factual basis for the appellant’s contention that he had been employed by Barbeques Galore was “predominantly documentary”. He identified four documents, or sets of documents, on which the appellant particularly relied. Although his Honour did not set out details of the documentation in his judgment, it is convenient to do so here.
First, on 7 June 1999, the appellant, who was described as the “Applicant”, completed a printed employment form. The form was headed “Group Employer-Barbeques Galore Limited”. A separate section of the form, which was completed by a manager and countersigned by Mr Nicola, recorded that the appellant commenced permanent employment on 9 June 1999. The form recorded the appellant’s position as “Production employee” but gave no further details. However, the appellant provided his driver’s licence details, suggesting that his employment related to truck driving duties.
Secondly, all of the appellant’s weekly pay slips in evidence were issued in the name of Barbeques Galore and made no mention of Park-Tec. Each of the wage slips in evidence, which spanned the period from 12 May 2003 to 26 October 2004, designated the appellant as the “Employee”. The name “Barbeques Galore Limited” appeared at the foot of each slip. Although the document did not state expressly that Barbeques Galore was the employer, each slip recorded Barbeque Galore’s Australian Business Number (“ABN”).
Thirdly, the Payment Summary provided to the appellant for the year ended 30 June 2004, which was issued for income tax purposes, recorded the “Payer’s Name” as Barbeques Galore. The period for which payments were said have been made to the appellant was 23 October 2003 to 30 June 2004. The authorised person signing the Payment Summary was Mr Nettle.
Fourthly, as has been seen, the letter of termination of 10 November 2004 was signed by Mr Nettle on the letterhead of Barbeques Galore. Moreover, the letter referred to the efforts made by “[t]his company” to accommodate the appellant’s physical incapacity.
The primary Judge considered that these indicia of an employment relationship between the appellant and Barbeques Galore had to be weighed against other factors. First and foremost, according to his Honour, Park-Tec had admitted in the pleadings that it was the appellant’s employer and Mr Nicola’s evidence corroborated the admission.
His Honour appears here to be referring to a statement by Mr Nicola in an affidavit. Mr Nicola stated (without annexing any supporting documentation on the point) that at some time in 2003 the appellant “left the employ of Park-Tec”. He continued:
“However, [the appellant] was re-employed on or about 23 October 2003. I authorised the [appellant] to recommence employment on 22 October 2003. Annexed hereto and marked “LN5” is a copy of the Change in Details of Personnel form confirming the [appellant] recommenced with Park-Tec Engineering Pty Ltd signed by me.”
The primary Judge did not refer specifically to the “Change in Details Personnel” form identified by Mr Nicola. The form was dated 22 October 2003. It noted a new rate of pay, the reason for which was said to be “Job? – Driver Small Truck”. The “Employee No” was recorded as “70292”. Mr Nicola said in his oral evidence that the prefix “70” indicated that “it’s Park-Tec”. He also said that at the time an employee applied for a job within the Barbeques Galore Group the application form was completed with an “expense code” which “determines what company the code goes to”. Mr Nicola was not asked and did not say whether the employee number served the purpose of the expense code.
At the hearing before the primary Judge, it appears to have gone unnoticed that someone had circled the employee number on the “Change in Details of Personnel” form (70292) and written in the margin “79392”. Nor was it noticed at the hearing that all the appellant’s wage slips from October 2003 recorded his employee number as “79392”. There was no evidence to explain what the prefix “79” might have referred to, nor to explain why the appellant’s employee number was changed at about the time he was re-employed in October 2003.
The “Change in Details of Personnel” form recorded that the appellant was being transferred from Branch “Loc YP” to Branch “Loc YPAS”. Mr Nicola explained in his oral evidence that “YP” indicated Park-Tec, while “YPAS” indicated “Park-Tec assembly”.
The second factor suggesting that Park-Tec was the appellant’s employer was that the evidence, so his Honour found, “clearly established that it was Park-Tec … that had the right of control over [the appellant’s] work”. His Honour acknowledged that according to High Court authorities, notably Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16, the right of control was not conclusive as to the identity of the employer, but he thought that it was a significant factor.
Thirdly, his Honour identified several other indicia which tended, so he maintained, to indicate that Park-Tec was the appellant’s employer, as follows:
“the premises at which [the appellant] worked are premises at which Park-Tec carried on its operations,
the work performed by [the appellant] was performed as part of that company’s operations, and
[the appellant’s] leave forms were submitted to and approved by Park-Tec …”
The primary Judge rejected a submission made on behalf of the appellant founded on s 123 of the Industrial Relations Act 1996 (NSW) (“IR Act”). Section 123 provided that an employer, when paying remuneration to an employee, was required to supply the employee with such written particulars regarding the payment as were prescribed (see Industrial Regulations (General) Regulation 2001 (NSW), cl 7). The appellant submitted that, in view of Barbeques Galore having issued the appellant’s payslips, it was not consistent with s 123 of the IR Act for the respondents to assert that Park-Tec was the appellant’s employer. In his Honour’s view, this contention failed:
“to take account of the arrangements within the Barbecues Galore group, in which Park-Tec engineering was a subsidiary, for the centralisation of its administration, particularly its accounting function, pursuant to which the group employer for tax purposes was Barbecues Galore. Just because Barbecues Galore was the group employer for payroll and tax purposes did not make it the [appellant’s] true employer for the purposes of workers compensation liabilities and any associated common law liability for work injury damages …”
His Honour also rejected a submission made in written submissions on behalf of the appellant, that the question of identity of the true employer was best left to the Judge hearing the trial. In his Honour’s view:
“this is a discrete question as to which it is appropriate that a determination be made separately. The resolution of the issue is one which can be made at this point. Each party had a full opportunity to present their evidence and make their submissions. There can be no doubt that separate early resolution of the question will result in considerable savings in terms of time and cost. I can see no useful purpose in deferring the question for the trial proper. My duty is clear: s 56 of the Civil Procedure Act 2005.
For that reason, his Honour stated that he proposed to determine the separate question.
His Honour expressed his conclusion as follows:
“I am satisfied, and I therefore find as a fact, that on 11 April 2004, the date [the appellant] alleges he was injured, he was employed by Park-Tec, not [Barbeques] Galore.
The proceedings against Park-Tec … should therefore be dismissed.”
(In making this finding, the primary Judge mistakenly placed the alleged injury as having occurred on 11 April 2004, rather than 11 March 2004.)
Having dismissed the proceedings against Park-Tec, it became necessary for his Honour to consider whether the appellant should have leave to join Barbeques Galore as a defendant to the proceedings and, in effect, to be substituted for Park-Tec. In his Honour’s view, a grant of leave would be futile as there was no evidence that Barbeques Galore was the occupier of the Premises at the time the appellant sustained his injury. Accordingly, he refused leave to join Barbeques Galore as a defendant.
The primary Judge noted that it was not necessary to consider the further ground upon which leave was opposed, namely that any cause of action against Barbeques Galore was statute barred in any event. He expressed the view, however, without giving detailed reasons, that any cause of action accruing to the appellant against Barbeques Galore had been discoverable by the appellant more than three years before the application was made and was therefore extinguished by s 50C of the Limitation Act 1969 (NSW).
The primary Judge accordingly made orders:
striking out the appellant’s Statement of Claim;
dismissing the proceedings generally;
dismissing the Appellant’s Motion; and
requiring the appellant to pay the respondents’ costs.
SUBMISSIONS
Appellant’s Submissions
The appellant submitted that the primary Judge erred in identifying and answering the separate question relation to the identity of the appellant’s employer. Ms Norton SC, who appeared with Ms Fraser, contended that it had been premature for the primary Judge to determine a separate question. This was said to be so because not all facts relevant to the identity of the employer were before the primary Judge and further evidence might have emerged in the course of the final hearing.
The appellant next submitted that if the primary Judge was entitled to answer the separate question, he had erred both in finding that the appellant had been employed by Park-Tec and in failing to find that he had been employed by Barbeques Galore at the date of the injury. Ms Norton submitted that the documentary evidence supported the appellant’s contention, especially the wages slips and the letter from Mr Nettle terminating the appellant’s employment. She also contended that the indicia relied on by the primary Judge were more equivocal than he recognised. For example, the fact that the appellant worked at the Premises from which Park-Tec carried on its operations, did not necessarily indicate that Park-Tec was the appellant’s employer. On the contrary, the place at which the appellant worked was no more significant than if the appellant had been working at the Premises, but had been employed by a body hire company.
The appellant also rather faintly submitted that the primary Judge was in error in concluding that any claim against Barbeques Galore would be futile because it had not been shown to be the occupier of the Premises. In her oral submissions, Ms Norton seemed to accept that there was no evidence adduced before the primary Judge pointing to Barbeques Galore being the occupier of the Premises.
Finally, the appellant contended that as his Honour had given no substantial reasons for concluding that the appellant’s cause of action was extinguished, that issue should be determined afresh.
Respondents’ Submissions
The respondents submitted that it was not open to the appellant to contend that the primary Judge had erred in separately determining the question of the identity of his employer. According to Mr Watson SC, who appeared with Ms Berberian for the respondents, the issue had been properly raised for determination and the appellant had acquiesced in the procedure.
The respondents further submitted that the primary Judge’s finding as to the appellant’s employer was supported by the evidence. The indicia relied on by his Honour were all powerful factors indicating that the appellant had been employed by Park-Tec. The “anomaly” of the pay slips was explained by the centralised accounting procedure within the Barbeques Galore Group. The fact that the appellant had received workers compensation payments from Park-Tec’s insurer and had acknowledged that he had been employed by Park-Tec when making his claim, also supported the primary Judge’s finding. Moreover, Mr Nicola’s affidavit evidence that the appellant had recommenced employment with Park-Tec in October 2003 had not been challenged.
Mr Watson submitted that the primary Judge’s finding that the action against Barbeques Galore could not proceed was inevitable. There was simply no evidence that Barbeques Galore was the occupier of the Premises at the relevant time.
REASONING
Leave to Appeal
The respondents accepted that the appellant was entitled to appeal as of right against the order dismissing the proceedings generally, as this was a final order. However, the respondents submitted that the appellant required leave to appeal from the order dismissing the Appellant’s Motion, since that order was interlocutory in character. Nonetheless, Mr Watson indicated that the respondents were content for leave to be granted to the extent necessary to enable this Court to deal with all issues raised by the parties.
The Separate Question
There were procedural irregularities in dealing with Barbeques Galore’s motion for the determination of a separate question pursuant to UCPR r 28.2. The motion was filed by Barbeques Galore at a time when it was not a party to the proceedings. The motion did not precisely identify the question to be separately determined, although the question could be inferred from the terms of the motion. The primary Judge, having apparently made an order early in the hearing for the determination of a separate question seems to have regarded the status of the separate question as somewhat uncertain towards the end of the hearing. No formal order providing for the determination of a separate question was ever made.
Ultimately, however, the primary Judge made it clear in his judgment that he was deciding the separate question of the “identity of the true employer”. The answer he gave was reflected in his finding that:
“on 11 April 2004, the date [the appellant] alleges he was injured, he was employed by Park-Tec … not [Barbeques] Galore.”
Thus, although no formal order identifying the separate question was ever taken out, there is no doubt what his Honour intended to do. Moreover, giving the basis on which the hearing had been conducted, the answer given by his Honour necessarily meant that the appellant’s case against Park-Tec had to be dismissed.
Despite the procedural irregularities, the parties proceeded at the hearing on the basis that the primary Judge would determine as a separate question whether, at the date of the alleged injury, the appellant was employed by Park-Tec or by Barbeques Galore. The latter company had not been joined as a party when it filed its motion, but the same counsel represented both Barbeques Galore and Park-Tec at the hearing before the primary Judge. The two related companies had a common interest in having the separate question answered as his Honour did.
Ms Norton accepted that counsel representing the appellant at the hearing before the primary Judge had neither objected to his Honour hearing and determining the separate question nor sought an adjournment for the purpose of adducing further evidence. As the primary Judge noted, each party had a full opportunity to present evidence and to make submissions. Ms Norton did not suggest that the appellant had suffered any procedural injustice in the way the hearing was conducted. If there were gaps in the evidence, that was the result of the way in which the parties chose to present their respective cases, and was not due to any element of surprise or insufficiency of time to prepare. For example, if the appellant wished to issue notices to produce or subpoenas and to have made them returnable in advance of the hearing, there was ample time to have done so. Nor can it be suggested that the identification of a separate question was an inherently inappropriate procedure to adopt: see the orders made in Shaw v Bindaree Reef Pty Ltd [2007] NSWCA 125, at [5], a similar case to the present in that it involved determining the identity of a worker’s employer.
In these circumstances, in my view, the primary Judge did not commit an error by determining the separate question identified in his judgment. Both the appellant and the respondents accepted that it was appropriate for his Honour to do so and the hearing was conducted on that basis. No procedural unfairness was caused to either party.
Identity of the Appellant’s Employer
The argument in this Court concentrated on the evidence bearing on the finding made by the primary Judge that in March 2004 Park-Tec was the appellant’s employer. Before addressing the evidence, three points should be made.
First, some care must be taken in applying the well-known principles stated in Stevens v Brodribb Sawmilling to the circumstances of the present case. The primary Judge cited Mason J’s judgment in which his Honour observed (at 24) that a prominent factor:
“in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter.”
Mason J pointed out, however, that the existence of control, while significant, is not the sole criterion to apply. His Honour identified a number of other relevant matters, including:
“the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
The issue in Stevens v Brodribb Sawmilling was whether a truck driver and a snigger (loader) who were engaged in logging operations were employees of the sawmiller or independent contractors. The case was therefore concerned with identifying “the discrimen between employees and independent contractors”: Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21, at 40 [43], per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.
The question in the present case is not whether the appellant was an employee or an independent contractor. There is no dispute that he was an employee of a company within the Barbeques Galore Group. The question is which of two companies – Park-Tec or Barbeques Galore – was his employer. It may not be quite as straightforward a task to apply the principles laid down in Stevens v Brodribb to the resolution of this question as it is to the determination of whether a particular worker is an employee (as distinct from being an independent contractor). For example, applying the Stevens v Brodribb criterion of the degree of control exercised over the appellant is not simply a matter of determining whether he was subject to close direction in the performance of his duties by someone within the Barbeques Galore Group. Clearly he was. The question is rather which company exercised control over the appellant in the performance of his duties.
Secondly, as Giles JA pointed out in Shaw v Bindaree Beef (at [61]-[62]), ascertaining which entity has entered into a contract of employment is to be determined on an objective assessment of the state of affairs relating to the contract. The subjective intention of the parties is not material to the inquiry.
Thirdly, the appellant accepted that, although there were gaps in the evidence before the primary Judge, the finding made by his Honour did not depend on his view as to the credit of either Mr Nicola or the appellant. Mr Watson also accepted that this Court, while paying respect to the finding made by the primary Judge, is in as good a position as his Honour to decide the factual issue on the basis of inferences from facts which are undisputed or are established by the findings of the primary Judge: Warren v Coombes [1979] HCA 9; 142 CLR 531, at 542, per Gibbs ACJ, Jacobs and Murphy JJ.
The evidence before the primary Judge was less than complete. Ordinarily, the starting point for identifying a person’s employer might be expected to be his or her letter of employment. Neither party tendered a letter of employment, either in relation to the appellant’s first period of employment (commencing in late 1996 or early 1997) or his second period of employment (commencing in October 2003). As I have observed, the respondents called no evidence from Mr Nettle, the signatory to the letter of 10 November 2004 on Barbeques Galore’s letterhead, which terminated the appellant’s employment. No-one at the hearing adverted to the change in the appellant’s employee number that apparently occurred shortly after he was re-engaged in October 2003.
The unexplained absence of evidence from Mr Nettle, although not remarked on by the primary Judge, is a matter of some importance in assessing the incomplete evidence. Mr Nicola, although describing himself as Park-Tec’s General Manager, did not sign the letter of 10 November 2004. Mr Nicola gave evidence as to his understanding of the identity of the appellant’s employer, but his knowledge of the internal arrangements of the Barbeques Galore Group was clearly limited. Indeed, in cross-examination Mr Nicola was uncertain as to the identity of his own employer, as shown in this exchange concerning the allocation of expenses within the Group (Combined Appeal Book, 56-57):
“FRASER
Q.So when you’re talking about a centralised payroll system, would it be a very difficult thing to just insert on someone’s pay slip a particular name, such as Park-Tec or Barbecues Galore or some other company within the group?
A. I don’t know.
…
HIS HONOUR
Q.But you need to know who was working for which company to allocate expenses and things, wouldn’t you?
A.At the time the employees apply for a job and you fill out their application form, you do allocate the expense code that it goes to, and that determines what company the expense goes to.
…
Q.So the application form is filled out in the name of the subsidiary, are they? Or are they filled out in the name of Barbecues Galore?
A.The actual application form, the paper work I think is headed Barbecues Galore, and at the bottom you’re able to allocate--
Q. So each subsidiary is just a cost centre?
A.I think in some cases it’s just a cost centre. There’s departments within companies that are definitely cost centres.
Q.So how do you know you’re employed by Park-Tec and not by Barbecues Galore?
A.I have – I don’t have a letter of appointment, so I don’t know if I am Park-Tec or Barbecues Galore, except I know Park-Tec has its own identity as a company, it has its own e-mail address, it has its own premises, it’s physically separate.” (Emphasis added.)
Later in his cross-examination (Combined Appeal Book, 67), Mr Nicola said that he was unable to inform the Court about the structure of the Barbeques Galore Group and appeared to acknowledge that he was unable to identify his own employer.
In this context, the documentation relied on by the appellant strongly suggests that in March 2004 his employer was Barbeques Galore. Both before and after the date of his re-engagement, Barbeques Galore issued wages slips to the appellant, enclosed with Barbeques Galore’s ABN. As Ms Norton pointed out in her submissions, cl 7(a) of the Industrial Relations (General) Regulation 2001 (NSW) provided that the particulars of remuneration to be supplied by an employer to an employee (as required by s 123 of the IR Act) had to include the employer’s name and ABN. The obvious inference is that Barbeques Galore, when issuing the wages slips, was acting in conformity with its statutory obligations as the appellant’s employer.
The primary Judge declined to draw this inference on the ground that, according to Mr Nicola, accounting functions within the Barbeques Galore Group were centralised. While that may have been so, it does not explain why a publicly listed company would apparently have been prepared to countenance a breach of the obligations imposed on one of its subsidiaries by State law. In the absence of an explanation from Mr Nettle or someone more knowledgeable about Group practices than Mr Nicola, the inference is clearly open that the wages slips reflected the true position, namely that the appellant was employed by Barbeques Galore. Indeed it is consistent with Mr Nicola’s understanding that all, or most of the Group’s workforce was employed by Barbeques Galore and deployed by it to the various “cost centres”.
The inference available from the wages slips is reinforced by the letter of 10 November 2004. If Barbeques Galore had not been the appellant’s employer, the letter presumably would have been ineffective to terminate his employment. In the absence of Mr Nettle, whose position as “Pay and Personnel Manager” suggests that he must have had detailed knowledge of the reason the letter was sent by Barbeques Galore, the inference is clear that the letter was sent to the appellant by his employer.
The evidence that the primary Judge relied on to demonstrate that Park-Tec was the appellant’s employer was, in my view, equivocal. Mr Nicola asserted in his affidavit that the appellant had originally been employed by Park-Tec in 1999. However, he provided no documentation or reasoning process to support this assertion. Indeed, the appellant’s “Employment Form” dated 7 June 1999, a copy of which was annexed to Mr Nicola’s affidavit made no mention of Park-Tec, but recorded that the “Group employer” was Barbeques Galore. The Employment Form nominating Barbeques Galore as the Group Employer is not necessarily inconsistent with Park-Tec being the appellant’s actual employer, but it does not on its face support the proposition.
Mr Nicola did not state unequivocally in his evidence that the appellant, when he was re-engaged in October 2003, was employed by Park-Tec as distinct from Barbeques Galore. Mr Nicola said in his affidavit that he authorised the appellant to “recommence employment” in October 2003. He annexed the Change in Details of Personnel form “confirming the [appellant] recommenced with Park-Tec”. In fact the form made no mention of Park-Tec, although it can be inferred from other evidence that the appellant was to work at the Premises from where Park-Tec carried on its operations.
Mr Nicola said in his cross-examination that the “Employee No” on the form, specifically the prefix “70”, “indicated it’s Park-Tec”. His evidence in cross-examination was consistent, however, with the prefix determining which company within the Group was charged with a particular expense, in this case wages, rather than definitively establishing the identity of the worker’s employer.
The Details of Personnel form was briefly adverted to again in Mr Nicola’s re-examination in the following passage:
“Q. You have a box that says “Employee Number 70292”?
A. Yes.
Q.And is there anything about those digits which are relevant to which entity the plaintiff was employed with?
A. Yes, 70 indicates it’s Park-Tec.”
I do not regard this evidence as unequivocal support for the proposition that the appellant was re-employed by Park-Tec in 2003. First, Mr Nicola was not asked about and did not explain the precise relevance of the prefix (70) to the appellant’s employment status. Secondly, there was no evidence as to why the appellant’s employee number was changed within a short period to a number with a different prefix (79) which thereafter appeared on his wages slips. Thirdly, without further explanation of the basis for his assertions, Mr Nicola’s uncertainty about the identity of his own employer hardly suggests that he was familiar with the issues that necessarily arise in determining the identity of the appellant’s employer within the Barbeques Galore Group.
The other evidence relied on by the respondents is also equivocal. Thus the only applications for leave that were in evidence pre-dated the appellant’s re-engagement in October 2003. In any event, they do not identify his employer, otherwise than by the inclusion of the appellant’s employee number. For reasons I have already given, the employee number (prefix 70) is not unequivocal evidence that the appellant was employed by Park-Tec in October 2003 or in March 2004.
There is no doubt that the appellant worked at the Premises and that Park-Tec carried on its operations there. These facts are, however, consistent with the appellant being employed by another company within the Barbeques Galore Group. It is significant that Mr Nicola, the General Manager of Park-Tec, did not know which company within the Group employed him. As I have noted, the evidence is quite consistent with the appellant being employed by Barbeques Galore, but being deployed to work on Park-Tec’s operations at the Premises.
The primary Judge placed some emphasis on evidence establishing that it was “Park-Tec that had the right of control over [the appellant’s] work”. It is one thing to conclude that the appellant worked at the Premises from which Park-Tec conducted operations. It is another to say that he was directed in his work by employees of Park-Tec. Mr Nicola, for example, was in a position to give directions to the appellant, but Mr Nicola did not know the identity of his own employer. In the absence of more detailed evidence as to the employment status of those responsible for Park-Tec’s operations, in the particular circumstances of this case the criterion of control is not of particular assistance in determining which entity employed the appellant.
Mr Watson relied on the fact that the appellant had signed a workers compensation claim form which identified his employer as Park-Tec and had received workers compensation payments from Park-Tec’s insurer, Allianz. The evidence, however, indicated that Mr Nicola handed the form to the appellant with Park-Tec’s name inserted for the appellant to sign. This form replaced an earlier form signed by the appellant, which did not have Park-Tec’s name on it. When asked why he had requested the appellant to sign the new form, Mr Nicola said that it was “only because that was the latest document to be used”. The circumstances in which the appellant came to receive workers compensation payments are not probative of Park-Tec being the appellant’s employer.
In my opinion, the evidence as a whole points to a finding, on the balance of probabilities, that the appellant’s employer in March 2004 was Barbeques Galore and was not Park-Tec. Giving due deference to the conclusion reached by the primary Judge, in my view his Honour erred in making the finding he did.
The separate question which his Honour answered was the following (after correcting the mistaken date):
“On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?”
It follows from what I have said that this question should have been answered as follows:
“The appellant was employed by Barbeques Galore and not by Park-Tec”.
It also follows that his Honour was in error in dismissing the proceedings against Park-Tec.
Occupier of the Premises
In view of the conclusion I have reached, it is not necessary to determine whether the primary Judge was correct in dismissing the Appellant’s Motion seeking to join Barbeques Galore. It will be recalled that his Honour did so on the ground that there was no evidence that Barbeques Galore was the occupier of the Premises and therefore the proceedings against it would be futile. Given that Barbeques Galore was the appellant’s employer, it was common ground that the appellant could not maintain proceedings against Barbeques Galore claiming damages for any breach of its duty of care to the appellant.
Nevertheless, it is appropriate to record that Ms Norton did not point to any evidence suggesting that Barbeques Galore, rather than GLC (the tenant) or Park-Tec (which conducted its business there), was the occupier of the Premises. It is true that, on the finding I have made, the appellant was employed by Barbeques Galore. However, the evidence is insufficient to enable a finding to be made as to the identity of the employer of the other employees who worked at the Premises and Ms Norton did not suggest otherwise.
If it were necessary to decide this point, I would conclude that no error has been shown in the way his Honour disposed of the Appellant’s Motion.
CONCLUSION
The appeal, insofar as it challenges the orders striking out the appellant’s statement of claim and dismissing the proceedings, must be allowed. The orders made by this Court should include orders identifying the question for separate determination and answering the question consistently with these reasons. The proceedings against Park-Tec should be remitted to the District Court for determination.
To the extent necessary, the appellant should have leave to appeal against the orders dismissing the Appellant’s Motion. However, the appeal against those orders should be dismissed.
The costs order made by the primary Judge, insofar as his Honour ordered the appellant to pay the respondents’ costs of the substantive proceedings should be set aside. In lieu thereof Park-Tec should be ordered to pay the appellant’s costs in relation to Park-Tec’s AMN. The order made by his Honour requiring the appellant to pay the respondents’ costs of the Appellant’s Motion seeking to join Barbeques Galore should not be disturbed.
The respondents should pay the appellant’s costs of the appeal, insofar as the appeal relates to the ANM and to the orders striking out the statement of claim and dismissing the proceedings. The appellant should pay the respondents’ costs of the appeal, insofar as the appeal relates to the dismissal of the Appellant’s Motion.
If any party seeks a different order as to costs, either in this Court or the District Court, it may file submissions in accordance with the UCPR.
The orders I propose are as follows:
(1)To the extent necessary, grant the appellant leave to appeal against Orders (c) and (d) made by Johnstone DCJ on 30 July 2008, dismissing the Appellant’s Motion and ordering the appellant to pay the respondents’ costs of the Appellant’s Motion.
(2) Appeal allowed in part.
(3)Set aside Orders (a) and (b) made by Johnstone DCJ on 30 July 2008 striking out the appellant’s Statement of Claim and dismissing the proceedings.
(4)Pursuant to UCPR r 28.2, the following question be determined separately from any other question in the proceedings:
“On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?”
(5) Answer the separate question as follows:
“The appellant was employed by Barbeques Galore and not by Park-Tec.”
(6)Set aside Order (d) made by Johnstone DCJ on 30 July 2008, insofar as it orders the appellant to pay the respondents’ costs of the substantive proceedings.
(7)In lieu of Order (d) made by Johnstone DCJ, insofar as it is set aside by Order 6 above, Park-Tec to pay the appellant’s costs in relation to Park-Tec’s amended Notice of Motion filed on 10 March 2008 (including the costs of determining the separate question identified in the judgment of Johnstone DCJ).
(8)Remit the proceedings to the District Court for determination consistently with these reasons.
(9) Appeal otherwise dismissed.
(10)The respondents to pay the appellant’s costs of the appeal, insofar as the appeal relates to the determination of Park-Tec’s ANM and the orders striking out the appellant’s statement of claim and dismissing the proceedings.
(11)The appellant to pay the respondents’ costs of the appeal (including any application for leave to appeal) insofar as the appeal relates to the orders dismissing the Appellant’s Motion.
(12)The respondents, if otherwise qualified, should have a certificate under the Suitors’ Fund Act 1957 (NSW).
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LAST UPDATED:
9 December 2009
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