Wang v Odyssey Trading Pty Ltd (No 3)

[2021] FedCFamC2G 381

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Wang v Odyssey Trading Pty Ltd (No 3) [2021] FedCFamC2G 381

File number(s):	MLG 2554 of 2019
Judgment of:	JUDGE BURCHARDT
Date of judgment:	22 December 2021
Catchwords:	INDUSTRIAL LAW – Rulings made following delivery of reasons for judgement to progress consideration of quantification of applicant’s claim and assessment of any issues relevant to penalties sought by the applicant.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited:	Jess v Jess [2019] FamCAFC 159 395
Division:	Division 2 General Federal Law
Number of paragraphs:	17
Date of last submission/s:	21 December 2021
Date of hearing:	21 December 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Banasik
Solicitor for the Applicant:	Esser Legal
Counsel for the Respondents:	Mr Levine
Solicitor for the Respondents:	Maciel Pizzorno & Co

ORDERS

MLG 2554 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JIMEI WANG

Applicant

AND:

ODYSSEY TRADING PTY LTD

First Respondent

CHRISTINE ZHANG

Second Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	22 DECEMBER 2021

THE COURT ORDERS THAT:

1.The applicant file and serve schedules detailing:

(i)Hours and days the Applicant worked;

(ii)Award rates for those hours;

(iii)Amounts payable for those hours pursuant to the award;

(iv)The amounts paid to the applicant;

consistently with the judgement on or before 25 February 2022.

2.The applicant to file and serve

(a)Draft orders and declarations sought;

(b)Written submissions in support of those orders and declarations, including as to any penalties sought to be imposed;

on or before 25 February 2022.

3.The Respondent file and serve:

(a)Any written submissions and;

(b)Any affidavits relevant to the assessment of any penalties;

on or before 31 March 2022.

4.The matter be listed for hearing on 19 April 2022 at 9.00am.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Revised from Transcript

JUDGE BURCHARDT:

1. The ruling I am going to give now will be transcribed and forwarded to the parties as soon as possible.  I note that neither of the parties have attended, which is slightly surprising, but nothing turns on that.  I propose to start with what actually happened during the trial.  On 3 November 2021, at transcript P3, the applicant sought to provide spreadsheets showing particulars of loss.  These were said to be the same as annexure JW26 to the applicant’s trial affidavit.  I pointed out that JW26 was illegible and larger copies were provided, although it should be noted that Mr Levine of counsel for the respondents did not accept they were, in fact, JW26.  At P8 the following was recorded.  Mr Banasik said:

   The only other matter is in relation to – well, it was to be in relation to those spreadsheets.  I think I have already covered it off, though, in dealing with the amendments to the pleading.  I understand my learned friend has an objection to those spreadsheets.  I just wish to clarify that those spreadsheets are really the particulars of loss.  So they have been exhibited to an affidavit as a matter of convenience, I suppose.  I can’t speak to that as I wasn’t involved at that stage.

   But they’re really to be understood as particulars of loss.  So in my submission any objections in relation to page numbering and so forth are objections that really get away from the key issue which is that we’re trying to work out here how much she was entitled to how much the applicant was entitled to and how much she was actually paid and what’s the difference owing. 

2. I then said:

   Well, is it put that these are not evidence of the actual work she did?  They’re just calculations based upon evidence that’s otherwise within her affidavit. 

3. Mr Banasik responded:

   Exactly.

4. And I said:

   So they have no evidentiary value whatever in terms of proving what hours were or were not worked.  They’re simply recitations of what would flow if the hours that are said to have been worked were, indeed, worked.  Is that the position? 

5. Mr Banasik confirmed that it was.  Mr Levine took a number of further objections to the question of the spreadsheets and particulars of loss, and at P11 I returned to the matter and said the following:

   This leaves us with the vexed question of the spreadsheets.  Contrary to the position espoused in the applicant’s affidavit it is put that these are not actually evidence.  They are merely tabulations of loss if the evidence is found to correspond with what is recorded in them. 

   The difficulty that confronts the respondents is that they haven’t really seen these, and indeed I haven’t either, and it’s all but impossible as a matter of quick impression to work out exactly what their force or not is.  What I am minded to do is cause the necessary bureaucratic efforts to take place to ensure that everybody has what might be described as a full set of what it is that the applicant seeks.  I note that the proceeding has concertinaed down somewhat because of the abandonment of the general protections claim. 

   I’m minded to adjourn the matter till tomorrow, which will give time for the respondent, in particular, as matter of urgency to be given whatever pages they don’t have, and to consider the documentation.  I don’t propose to rule in a final sense as to documentation at this point, but my inclination is that if it is merely a tabulation of loss, albeit that that’s not entirely satisfactory given the way it’s described in the affidavit but if that’s all this is said to be, then it may well be ultimately of little evidentiary significance and really more a matter to be considered as and when the facts have been found.

6. On the following day, 4 November 2021, Mr Levine again pressed certain objections and at P15 I said the following:

   I actually think that one of the things that has bedevilled this proceeding has been the way in which it has been conducted.  I have striven over a long period of time to get the matter to commence. 

7. I then continued later on, on the same page:

   The obsession with quantum that has rather stood at the forefront of the respondent’s position fails to, in my view, engage with what this case is really about:  first of all, what work did this person do; to what extent were they for some time an independent contractor rather than an employee; how is the work that they do to be calibrated against the award that is said to apply, and what hours, if any, did she work.  And these are factual issues which are described in the body of her evidence.  There is an annexure JW16 which is said to be contemporaneous records of her times at work, and those are the factual issues with which I think I am confronted as I presently see the matter.

8. Mr Levine pressed a number of further objections and I made a ruling at P18 in the following terms.  I said,

   I will rule on the matter.  On 2 September 2021, I made a number of orders including that the applicant make available for solicitors for the respondent on or before 10 September 2021 legible copies of relevantly annexure JW26 of the applicant’s affidavit.  I also granted liberty to apply.  It would appear that legible copies of the documents I refer to were not provided.  The matter has since been back to court quite recently and this aspect of the matter was not, so far as I can recall, raised on that occasion.  Certainly, the respondents have not exercised their full liberty to apply. 

   The document now produced is said by Mr Banasik, so far as his researches reveal, to correspond in its terms with JW26.  JW26, despite the way it’s described in the applicant’s affidavit, has been clarified by counsel as being no more and no less than the financial consequences that would devolve in the event that the applicant makes good the factual assertions contained in her evidence.  I pointed out quite some time ago that the issue of the hours the applicant worked was a matter well within the respondent’s capacity to respond to.  They must know what they say and I pointed out that the period with which we are concerned and the argument in which we are concerned is all within the record retention requirements of the legislation.

   It is said that they do not know how to respond to the case.  The case is in the applicant’s affidavit.  There is nothing in that that takes them by surprise.  They’ve had it for a very long time.  What I am prepared to concede is that, given the unfortunate march of the events, the question of checking in detail the arithmetic, so to speak, of the document which is better described as the applicant’s particulars of alleged loss and damage.  Now, that process of checking may well take some considerable time and I think it would be unfair to ask the respondents to respond to it.

   I have tended to resist endeavours to split this trial because of all the obvious reasons that obtain in splitting trials, but the fact is that this matter simply must proceed.  It’s high time it did.  The factual disputes between the parties as to what times and amounts that Ms Wang is said to have worked, it must be known to the respondents and has been for a very long time.  I do not think that it is in any sense unfair to them to ask them to proceed, and that is what I am going to do. 

9. So, it’s worthy of note that the case was clearly going to proceed on the issues of what work the applicant did, how much work she did and how much she was paid, amongst a number of other matters as well.  It was equally clear that the conclusions on those matters operated on the quantification of loss that was adjourned for separate and later consideration, and I point out this was done to accommodate the late service of the schedules.  At P51 a further matter was recorded.  Under cross-examination I pointed out:

   She can’t be – her evidence is that this was prepared by a labour law barrister; she has read the spreadsheets.  When asked if they’re true and correct, she says she trusts the barrister.  I think that’s about as far as we can go with that. 

10. Mr Levine then said:

    So, I will take it that she hasn’t adopted them and it’s not evidence. 

11. I responded:

    I think I made it clear that these are not being put as evidence at this stage of the trial and that’s the basis on which I’m approaching. 

12. That, of course, was consistent with the earlier indication that I had made that the matter would proceed in that way.  Days of evidence followed.  JW26 was mentioned in final submissions by Mr Levine, but not in any way that is now material.  On 17 December 2021, I gave judgment.  Relevantly, I determined the classification at which Ms Wang had been employed.  I determined what hours she had worked.  I determined what she was paid, and I determined the respondent’s entitlement to set off monies previously paid to her.  Yesterday, the matter was the subject of oral submissions, which I will traverse from my notes. 

13. When Mr Banasik was addressing me, the matter proceeded in what might be described as relatively orthodox terms.  I invited him to indicate how long he would need to revise the schedules or prepare other schedules, for that matter, to reflect the conclusions in my judgment, and he indicated that late February would be possible and that he could file written submissions as to the orders and declarations sought, and as to penalties by such a date.  Mr Levine for the respondents took issue with such an approach.  He submitted it was unsatisfactory, that I should no longer hear the case.  He referred to the authority of Jess v Jess [2019] FamCAFC 159 395.

14. That was a case in which Bennett J made a preliminary decision as to a declaration of trust and made significant adverse credibility findings.  He submitted that this made it inappropriate for me to continue to hear the matter.  The doctrine of necessity does not apply to the Court such as this one, and counsel submitted that some of the Court’s findings were inherently unfair.  He referred to other authority that said that it was inappropriate to proceed, as I had discussed with Mr Banasik, because the amount involved could be controversial.  He also indicated that if I was to order the matters to proceed in this fashion, he would seek time to put on affidavit material. 

15. Mr Banasik for the applicant noted that Jess was a case involving a finding of fraud and that this case is different because it is no longer incumbent upon me to make credit findings. 

16. The points I make would be as follows.  First, this was clearly a split trial.  Indeed, I think Mr Levine complained about that at one point.  I refer to the matters in the transcript which I have read out.  Second, there has to be a split trial as it is impossible to ascertain loss until disputes over classification, hours worked, money paid were determined.  Third, in my experience there is always a split trial in civil penalties applications.  It is not possible to formulate what penalties should be found, nor what sanctions should be imposed for them until the factual findings are made.  Fourth, contrary to the respondent’s submissions, the calculation of loss is, essentially,  a mechanical process at this stage.  The rates in the award are not likely to be the subject of dispute.  I have made findings as to what work the applicant did and as to how much she was paid.  If there are any disputes, they can be dealt with in written submissions.  Fifth, the respondents’ submissions would mean, as Mr Banasik submitted, that the applicant should receive no remedy despite her success in the trial.  Plainly, that would be inappropriate on any view of the matter.  Sixth, I am not required to make credibility findings at this stage.  This is not a case like Jess. 

17. Finally, it is not entirely clear whether recusal is pressed on some other basis.  I would observe in passing that the informed and reasonable lay observer would have noted that the respondents had some considerable measure of success in the proceeding.  They were successful on the issue of classification.  They were successful on the issue of the independent contractor.  As I say, penalties are always assessed by the same judge who heard the factual dispute that are anterior to it, as it is merely applying those findings to the legislation. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:  

Dated:       22 December 2021