Federal Court of Australia

Revill v John Holland Group Pty Ltd [2022] FCAFC 178

ORDERS

THE COURT ORDERS THAT:

1.    The following documents are received in the application for leave to appeal and are to form part of Part C of the appeal book and otherwise the applicant’s interlocutory application for the Court to receive further evidence in the application and in any appeal is dismissed.

(a)    Letter to Mr Revill from JH Group dated 21 August 2013.

(b)    Letter to JH Group from Mr Revill’s solicitors dated 21 November 2013.

(c)    Letter to Mr Revill solicitors from JH Group dated 21 November 2013.

(d)    Emails of 3 and 14 October 2014 between the Financial Ombudsman Service and a representative of Regis.

(e)    Letters passing between Mr Revill’s solicitors and JH Group of 3 and 16 February 2016.

(f)    Letters passing between Mr Revill’s solicitors and JH Group of 16 and 22 March 2018 and 4 April 2018.

2.    The applicant is granted leave to amend his application to seek leave to appeal in terms of the amended draft written notice of appeal filed on 14 December 2021.

3.    The application for leave to appeal is dismissed.

4.    By 4.00pm on 15 November 2022, the respondent is to file and serve any submissions it wishes to make regarding the costs of the applications.

5.    By 4.00pm on 22 November 2022, the applicant is to file and serve any submissions he wishes to make regarding the costs of the applications.

6.    Otherwise, the costs of the applications are reserved.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    I have had the benefit of reading in draft the reasons for judgment of Feutrill J. I agree that the orders proposed by his Honour should be made in the terms suggested. I also agree with Feutrill J that Mr Revill should be granted leave to amend his application for leave to appeal.

2    The reasons for judgment of Feutrill J have helpfully set out the facts, the judgments the subject of Mr Revill’s application for leave to appeal, the relevant principles applicable on such an application and other background matters. I gratefully adopt his Honour’s recitation of those matters.

3    This is a proceeding in which a misconception at the core of Mr Revill’s proceeding has brought about unnecessary complications and has ultimately resulted in its dismissal. It is helpful to set out some of the relevant facts here, noting that a comprehensive account of the facts is set out in the reasons of Feutrill J.

4    An enterprise agreement called John Holland Pty Ltd Wheatstone Project Agreement 2012 (EA) made under the Fair Work Act 2009 (Cth) (FW Act), provided employees covered by that agreement with income protection insurance amongst other entitlements. Mr Revill sought, but was declined, access to that entitlement in relation to a non-work related injury to his lower back and right shoulder.

5    The employer respondent to the EA is John Holland Pty Ltd (JHPL). The EA provides that it is binding upon JHPL, employees of JHPL in certain classifications and the Australian Workers’ Union. Section 51(1) of the FW Act provides that an enterprise agreement made under that Act “does not impose obligations on a person…unless the agreement applies to the person”. Section 52(1) relevantly provides that an enterprise agreement applies to an employee or an employer if the agreement “covers the employee [or] employer”. Section 53(1) of the FW Act relevantly provides that “an enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or employer”.

6    JHPL is a wholly owned subsidiary of John Holland Group Pty Ltd (JH Group). JH Group is not referred to by the EA. The EA is not “expressed to cover” JH Group within the meaning of s 53(1) of the FW Act and the EA imposed no obligation upon JH Group under s 51(1) of the FW Act because the EA did not “cover” JH Group. I agree respectfully with the analysis to that effect made by Feutrill J at [169]-[181].

7    Accordingly, it was only employees of JHPL who are covered by the EA who are entitled to income protection insurance and it was only JHPL, as the employer which the EA is expressed to cover, which was obliged by the EA to provide that entitlement.

8    Instead of instituting proceedings under the FW Act as an employee of JHPL claiming a breach of the EA by JHPL, Mr Revill instituted proceedings against JH Group claiming to be an employee of JH Group and alleging that JH Group had contravened the EA by denying him the entitlement of income protection insurance. That occurred in circumstances where, as the reasons of Feutrill J set out, the documentation in relation to Mr Revill’s employment (including his offer of employment) recorded his employer as JHPL and where, although JH Group (and not JHPL) communicated with Mr Revill in relation to his claim for income protection and declined that claim, prior to the institution of his proceeding JH Group advised Mr Revill’s lawyers that his employer was JHPL.

9    As might have been expected, the misconceived basis upon which Mr Revill’s proceeding was commenced led to serious complications. Justice Feutrill has borne the burden of setting that out in detail and, consequently, I need not do so.

10    It suffices to say that after instituting his proceeding Mr Revill made an unsuccessful application to join JHPL, as well as another related corporation (JHG Mutual Ltd), as parties to the proceeding. Of the three draft grounds of appeal pressed by Mr Revill, which are outlined in the reasons of Feutrill J below at [47], ground 1 in essence contends that the primary judge erred in dismissing the joinder application because it was arguable that Mr Revill had a cause of action (which was not time-barred) against JHPL for a contravention of s 50 the FW Act founded upon a breach of the EA, and also against JHG Mutual as an accessory to that contravention under s 550 of the FW Act.

11    By his proposed ground 1, Mr Revill would seek to raise a case not raised before the primary judge on the joinder application. It would be a new case not only because it relies upon a different date for when the cause of action is alleged to have accrued to that relied upon in the joinder application, but would also be new because the joinder application was not based upon any allegation that JHPL breached the EA or that JHG Mutual was an accessory to that breach.

12    For the reasons given by Feutrill J, the leave necessary to raise the proposed new case should be refused on any appeal and consequently leave to appeal on proposed ground 1 should be refused.

13    By ground 3 of his proposed appeal, Mr Revill seeks to contend that in summarily dismissing his proceeding the primary judge erred in finding that JH Group was not his employer. Mr Revill asserts that because JHPL is owned and controlled by JH Group, JHPL was merely an agent of JH Group and that JH Group was his ‘true employer’.

14    The relevant principles applied in identifying which corporation within a group of companies should be regarded at law as the employer of a particular employee were discussed by Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; (2011) 198 FCR 174 at [75]-[92]. Other relevant authorities are discussed in the reasons of Feutrill J. However, what had been the settled approach may now need to be revisited in light of recent High Court authority which emphasises that an inquiry as to whether a person is an employee of another, where the relations between those persons are the subject of a comprehensive written contract the validity of which is not in dispute, is to be conducted by reference to the rights and obligations of the parties under that contract: see Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 at [59] (Kiefel CJ, Keane and Edelman JJ), at [172]-[173] (Gordon J); ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603 at [8] (Kiefel CJ, Keane and Edelman JJ); and Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 at [97] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).

15    However, in my view, it is not necessary to determine whether there is an arguable case that JH Group was Mr Revill’s employer. Whilst I am not inclined to the view that the primary judge erred on that issue, even if it be accepted that there is an arguable case that JH Group was Mr Revill’s employer, a finding on the appeal to that effect would be of no utility to Mr Revill. This is because JH Group is not an employer covered by the EA and therefore has no obligation under the EA to provide income protection insurance to the employees covered by the EA. Mr Revill’s contention that, although the EA is expressed to cover JHPL it may also cover JH Group as the ‘true employer’, is without merit for the reasons discussed above at [13] and [14] which adopt the analysis made by Feutrill J at [169]-[181]. Furthermore, that contention would raise a new case not made before the primary judge and leave to raise it ought to be refused in any event.

16    Accordingly, leave to appeal in relation to proposed ground 3 should be refused.

17    I agree for the reasons expressed by Feutrill J that leave should also be refused in relation to ground 4 of the proposed appeal which seeks to contest the costs order made against Mr Revill by the primary judge.

Associate:

Dated: 8 November 2022

REASONS FOR JUDGMENT

BANKS-SMITH J:

18    I have had the benefit of receiving in draft Feutrill J's comprehensive draft reasons. I have also had the benefit of receiving Bromberg J's draft reasons. I agree that orders should be made in the terms proposed by Feutrill J granting leave to amend the application, refusing to grant leave to appeal and programming submissions as to costs.

19    I agree, for the reasons given by Feutrill J, that leave to appeal with respect to proposed grounds 1 and 4 should be refused.

20    As to proposed ground 3, and adopting the definitions utilised by Feutrill J, in my view the ground may be resolved without determining the question of whether there is an arguable case that JH Group was Mr Revill's employer. Ground 3 may be resolved once it is understood that JH Group is not an employer covered by the Wheatstone Agreement and therefore has no obligation in any event to provide income protection insurance to employees covered by that agreement. I agree with the reasons of Feutrill J in this regard at [169]-[181] of his Honour's reasons. Accordingly leave to appeal with respect to proposed ground 3 should also be refused.

Associate:

Dated: 8 November 2022

REASONS FOR JUDGMENT

FEUTRILL J:

INTRODUCTION

21    This proceeding is an application for leave to appeal from orders of the primary judge made on 2 September 2021 whereby his Honour, on an interlocutory application of the respondent to the present proceedings, summarily dismissed the whole of the applicant’s proceedings and ordered that judgment is entered in favour of the respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). By an amended draft notice of appeal filed 14 December 2021, the application for leave to appeal purports to extend to orders of the primary judge made on 12 November 2021, whereby his Honour ordered that the applicant was to pay the respondent’s costs of the proceedings, and to orders of the primary judge of 6 November 2020, whereby his Honour dismissed an interlocutory application of the applicant for orders to join other parties to the proceedings. By an order of Colvin J made on 15 December 2021, the application for leave to appeal was listed before the Full Court to be heard concurrently with any appeal.

22    The applicant (Mr Revill) also made an interlocutory application for the Court to receive further evidence in any appeal. That application was also listed before the Full Court to be heard concurrently with any appeal.

23    The amended draft notice of appeal originally identified four proposed grounds of appeal. In the course of the parties’ submissions on the application for leave, these grounds were modified and reduced to three substantive grounds: proposed ground 1; proposed ground 3; and proposed ground 4.

24    The proceedings which the primary judge dismissed under s 31A(2) of the FCA Act concerned a claim that the respondent (John Holland Group Pty Ltd or JH Group) was Mr Revill’s true or real employer and it breached the terms of an enterprise agreement made under the Fair Work Act 2009 (Cth) (Wheatstone Agreement). The evidence before the primary judge indicated that Mr Revill’s contract of employment was made with another company (John Holland Pty Ltd) and it was JHPL, not JH Group, which was the ‘employer’ for the purposes of the Wheatstone Agreement.

25    Proposed ground 3, in substance, asserts that the primary judge made an error in finding that Mr Revill has no reasonable prospect of establishing at trial that JH Group was Mr Revill’s ‘employer’ as that term is used in the FW Act. Leave to appeal on that ground should be refused because the ground lacks sufficient merit to warrant the grant of leave. The principal reason for refusing leave on that ground is that, even if there were an arguable claim that JH Group was Mr Revill’s true or real employer, there is no reasonable prospect of successfully prosecuting a claim of breach of the Wheatstone Agreement by JH Group because it was JHPL, and not JH Group, which was the party to and employer under that enterprise agreement. Accordingly, no substantial injustice flows from the asserted error of the primary judge. That conclusion is sufficient to dispose of the application for leave to appeal under proposed ground 3, however, given that the ground was fully argued and the substantive merits of the issue may have implications for the costs of the applications, I have addressed the substantive arguments made in respect of the ground and have also concluded that there is also no merit in Mr Revill’s assertion that the primary judge made an error in concluding that there was no reasonable prospect of Mr Revill establishing at trial that JH Group was his ‘employer’ as that term is used in the FW Act.

26    Proposed ground 1 is somewhat complicated and is the proposed ground to which the application to receive further evidence in any appeal is primarily directed. The ground asserts that the primary judge was in error for dismissing an earlier application of Mr Revill for leave to join JHPL as a respondent to the proceedings. The proposed ground is founded on a new case which was not argued before the primary judge and the receipt of further evidence in any appeal in respect of that new case. The new case is that the applicant has (or had) arguable causes of action against JHPL (as employer) for a contravention of s 50 of the FW Act founded on a breach of the Wheatstone Agreement, and against JHG Mutual Pty Ltd, as a party involved, within the meaning of s 550 of the FW Act, in JHPL’s contravention. The new case was not raised as part of the summary judgment application or the joinder application upon which the proposed ground is based.

27    Leave to appeal under proposed ground 1 should also be refused because the ground lacks sufficient merit to warrant the grant of leave. The principal reason for refusing leave is that leave should not be granted to permit the applicant to raise the ‘new case’ in any appeal because the applicant made a deliberate decision, at the time of hearing of the original joinder application, not to articulate or advance a case against JHPL or JHG Mutual founded on contraventions of the FW Act. There is no reason why the interests of justice do not demand that the applicant be bound by the manner in which his case was conducted before the primary judge. That conclusion is sufficient to dispose of the application for leave to appeal under ground 1. However, the argument on the proposed ground raised a number of other matters which were fully argued. These included the further evidence, if any, that should be received in the proposed appeal and the competence of a proposed appeal founded on an interlocutory judgment dismissing an application for joinder. Again, while not strictly necessary to do so, I have addressed the other substantive arguments and issues raised on the proposed ground and the absence of any merit in the ground as these are further reasons for refusing leave and the relative complexity of these issues may have a bearing on the question of the costs of the application.

28    Proposed ground 4 asserted that the primary judge made an error in awarding the respondent costs. No error was asserted or identified with respect to the primary judge’s approach to the legal question or to the primary judge’s conclusion that his discretion to award costs was enlivened on the material before him. Further, no error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 was asserted or identified in the exercise of the primary judge’s discretion. In short, there was no merit in the proposed ground and leave should be refused on that basis.

29    For the reasons summarised above and set out in more detail below, the applications for leave to appeal and application to receive further evidence should be dismissed. Costs should be reserved with a direction that the parties file and serve submissions addressing the question of costs.

BACKGROUND

30    Mr Revill commenced proceedings against JH Group by originating application dated 15 August 2019. Mr Revill filed a statement of claim the same day.

31    On 2 October 2019, Mr Revill filed an amended statement of claim. In the amended statement of claim Mr Revill alleged that JH Group was his employer from February 2013 to November 2013 and that the terms and conditions of his employment were provided for by the John Holland Pty Ltd Wheatstone Project Agreement 2012, AG2012/9638 (that is the enterprise agreement referred to earlier in these reasons as the Wheatstone Agreement).

32    On 16 October 2019, JH Group filed a defence to the amended statement of claim. In its defence, JH Group denied that it was Mr Revill’s employer and alleged that his employer was JHPL.

33    On 28 April 2020, JH Group made an interlocutory application for orders striking out the amended statement of claim. On 11 May 2020, the primary judge made orders striking out the amended statement of claim and granting Mr Revill leave to file a further amended statement of claim.

34    On 3 July 2020, JH Group made an interlocutory application for orders dismissing the proceedings pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth). On 17 July 2020, Mr Revill made an interlocutory application for orders to join JHPL and JHG Mutual as respondents in the proceedings (joinder application).

35    On 10 August 2020, JH Group filed an index and copies of the documents relied on in support of its application in accordance with r 17.02 of the Rules. On 11 August 2020, Mr Revill filed an index and copies of the documents he relied upon in support of the joinder application in accordance with r 17.02. On 17 August 2020, Mr Revill filed copies of the documents he relied upon in opposition to JH Group’s application in accordance with r 17.02. I consider that documents filed in accordance with r 17.02 were evidence before the primary judge and, as such, may be referred to in any appeal without the need for an application to be made under r 36.57 to receive those documents as ‘further evidence’ in any appeal. The application to receive further evidence in any appeal included documents in this category.

36    On 6 November 2020, the primary judge made orders dismissing each of JH Group’s application and Mr Revill’s joinder application (joinder judgment). Reasons for those decisions were published on 10 November 2020: Revill v John Holland Group Pty Ltd [2020] FCA 1633 (joinder reasons or JR).

37    On 20 November 2020, Mr Revill filed a substituted statement of claim. In that statement of claim he alleged that he was employed by JH Group, alternatively JHPL, and that his employment was governed by the Wheatstone Agreement. On the same day, Mr Revill made an application for leave to appeal from the joinder judgment.

38    On 26 May 2021, McKerracher J made orders dismissing the application for leave to appeal from the joinder judgment as incompetent with costs: Revill v John Holland Group Pty Ltd [2021] FCA 558. That application was incompetent because no appeal can be brought from a judgment of the Court if the judgment is a decision to join or not to join a party to proceedings: s 24(1AA)(b)(i) of the FCA Act. Mr Revill made no application for special leave to appeal to the High Court from those orders.

39    On 9 June 2021, JH Group made an interlocutory application for orders including an order dismissing the proceedings against it pursuant to s 31A(2) of the FCA Act (summary judgment application). On 21 July 2021, JH Group filed an affidavit of Ms Lydia Ward affirmed on 21 July 2021 in support of its application. Mr Revill filed no affidavit or other particular documentary evidence in opposition to that application.

40    On 2 September 2021, the primary judge made an order pursuant to s 31A(2) of the FCA Act entering judgment in favour of JH Group in relation to the whole of the proceedings (summary judgment). Reasons for that judgment were delivered at the same time: Revill v John Holland Pty Ltd (No 2) [2021] FCA 1056 (summary judgment reasons or SJR). On 12 November 2021, the primary judge made orders to the effect that Mr Revill must pay JH Group’s costs of the proceedings. Reasons for those orders were delivered at the same time: Revill v John Holland Pty Ltd (No 3) [2021] FCA 1403 (costs judgment and costs reasons or CR).

APPLICATIONS

41    On 16 September 2021, Mr Revill made an application for leave to appeal from the summary judgment. The application attached a copy of the primary judge’s orders of 2 September 2021 and a draft notice of appeal. The application was also supported by an affidavit of Mr Daniel James Mezger affirmed on 16 September 2021.

42    On 14 December 2021, Mr Revill filed an amended draft notice of appeal. In the amended draft notice of appeal Mr Revill proposes to expand the judgments the subject of the proposed appeal to include the joinder judgment and costs judgment. Although no formal application for leave to amend the application was made, the application was treated as an application for leave to appeal on the grounds set out in the amended draft notice of appeal. Thereby, the application included applications for leave to appeal from the joinder and costs judgments. Also, by order of Colvin J of 18 November 2021, Mr Revill was ordered to file an amended draft notice of appeal complying with r 36.01(1) and r 36.01(2) and dealing appropriately with the costs judgment. As there was no apparent objection to such amendment of the application for leave, I am content to grant Mr Revill leave to amend his application for leave to appeal to include application for leave to appeal from the joinder judgment and costs judgment.

43    On 22 April 2022, JH Group made an interlocutory application for an order dismissing the application for leave to appeal pursuant to r 35.32(a) and (or) (d) of the Rules. That application was withdrawn and dismissed with no order as to costs at the hearing of the application for leave to appeal on 16 May 2022 and orders were entered on 27 May 2022.

44    On 4 May 2022, Mr Revill filed an affidavit of Mr Mezger affirmed on 4 May 2022 and an affidavit of Mr Revill affirmed the same day. Mr Revill also filed a minute of proposed further substituted statement of claim.

45    On 9 May 2022, Mr Revill made an application, in effect, pursuant to s 27 of the FCA Act and r 36.57 of the Rules, for the Court to receive further evidence in any appeal. That evidence consisted of the minute of proposed further substituted statement of claim and the affidavits of Mr Revill and Mr Mezger of 4 May 2022 (and annexed documents). The application to rely on further evidence was also supported by an affidavit of Mr Mezger affirmed 9 May 2022.

PROPOSED GROUNDS OF APPEAL

46    In Mr Revill’s written and oral submissions on the application for leave to appeal, the proposed grounds of appeal in the draft amended grounds of appeal were further amended. Proposed ground 2 was abandoned and proposed grounds 1 and 3 were amended so as to confine the asserted errors of the primary judge to errors concerning interpretation and application of the FW Act.

47    As a consequence of the further amendments, the proposed grounds of appeal, as finally amended, were to the following effect:

1.    His Honour … erred in law in November 2020 in wrongly interpreting and/or wrongly applying the provisions of the Fair Work Act 2009 (Cth) in dismissing the Applicant's joinder application.

Particulars

(a)    The Limitation Act 2005 (WA), being a State statute, does not apply to a matter being determined under Commonwealth statute, which in this matter is the Fair Work Act 2009.

…

3.    Alternatively to ground 1, His Honour … erred in law in finding that the Respondent was not the employer as that term is used in the Fair Work Act 2009 (Cth)

Particulars

(a)    At all relevant times the current Respondent wholly owned and controlled John Holland Pty Ltd and JHG Mutual Pty Ltd;

(b)    The term "employer" in the above Act is required, in the circumstances of this matter, to be interpreted beneficially;

(c)    In light of the ownership of, and Directors of, the Respondent and the entities:

•    John Holland Pty Ltd;

•    JHG Mutual Pty Ltd,

the Respondent was at all times an "employer" for the purposes of the Fair Work Act 2009.

4.    His Honour … erred in law in awarding costs against the applicant in relation to his claim against the Respondent pursuant to Insurance Contracts Act 1984 (sic) by wrongly interpreting and applying the provisions of, and/or wrongly exercising a discretion in section 570(2)(a) of the Fair Work Act 2009 and section 43(2) Federal Court of Australia Act 1976.

LEAVE TO APPEAL: PRELIMINARY OBSERVATIONS

48    Section 24 of the FCA Act describes the appellate jurisdiction of the Court. An appeal from a judgment that is an interlocutory judgment cannot be brought unless the Court or a Judge gives leave to appeal. The summary and costs judgments are interlocutory judgments. Therefore, Mr Revill requires leave of the Court to appeal from those judgments.

49    The joinder judgment is also an interlocutory judgment. As noted, there is no right of appeal from such an order: s 24(1AA)(b)(i) of the FCA Act. As mentioned above, an application for leave to appeal from that order was made and dismissed by McKerracher J: Revill v John Holland Group Pty Ltd [2021] FCA 558. There was no appeal from that order.

50    Insofar as Mr Revill’s application for leave includes an application for leave to appeal from the joinder judgment, it is incompetent and must be dismissed, both because there is no right to appeal from that judgment under s 24(1AA)(b)(i) and because a judgment of the Court has already been made to that effect. Any application to renew the application for leave before a differently constituted court exercising appellate jurisdiction is incompetent: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 426, 433. In any case, any renewed application for leave to appeal is out of time and would require an extension of time and none has been requested: rr 35.13 and 35.14 of the Rules.

51    Further, while the judgment refusing leave to appeal was interlocutory, it had the practical effect of finally disposing of any right of appeal from the joinder judgment: Thomas Borthwick at 426-427. The Court, as a statutory court of intermediate appellate jurisdiction, is not able to reopen a perfected judgment of the Court disposing of an appeal: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530-534, 537; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [25], [32]-[49]; Eastman v The Queen [2008] FCAFC 62; (2008) 166 FCR 579 at [32] (citing with approval Pantzer v Wenkart [2007] FCAFC 27 at [5] (per Black CJ)).

52    Nonetheless, while the draft amended notice of appeal is expressed as an appeal that includes an appeal from the joinder judgment, in his oral argument counsel for Mr Revill framed proposed ground 1 of the appeal as falling within s 24(1E) of the FCA Act (an appeal from a final judgment founded on an interlocutory judgement or taking into account an interlocutory judgment in determining an appeal from a final judgment). Mr Revill submitted, in substance, that the summary judgment under s 31A(2) was a ‘final judgment’ for the purposes of s 24(1E) and, thereby, Mr Revill was not precluded from pleading an appeal ground based on an asserted error of the primary judge in the joinder judgment. I am content to treat proposed ground 1 of the draft notice of appeal as a plea to the effect that the summary judgment was founded on, or an appeal from that judgment is to be determined taking into account, an asserted error of the primary judge in the joinder judgment.

53    Otherwise, the principles applicable to the approach of the Court to applications for leave to appeal from interlocutory judgments are well established and may be shortly stated. In general, the Court will take into account and weigh two interdependent criteria. First, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being considered by the Full Court. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. In a case, such as this, where the practical effect of the interlocutory judgment is to finally dispose of the proceedings, leave will be more readily granted: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-399.

PROPOSED GROUND 1

Mr Revill’s case for leave to appeal

54    The essence of proposed ground 1 of any appeal is a contention that the primary judge erred in dismissing the joinder application because Mr Revill has (or had) reasonably arguable causes of action against JHPL for contravention of s 50 of the FW Act, founded on a breach of cl 14 of the Wheatstone Agreement, and against JHG Mutual, as a party involved, within the meaning of s 550 of the FW Act, in JHPL’s contravention. These causes of action were not barred (as of November 2020) by s 544 of the FW Act (the applicable limitation provision) because the cause of action accrued on 11 December 2014 when Mr Revill had exhausted the process of review of the initial decision to decline his claim for benefits under cl 14. Mr Revill’s application for the Court to receive further evidence in any appeal is primarily directed to the merits of his asserted cause of action against JHPL and to demonstrating that the cause of action arguably accrued on 11 December 2014. Substantial injustice will flow if Mr Revill is not permitted to appeal and join JHPL and JHG Mutual because his causes of action against those parties are now barred on any view of the facts.

JH Group’s opposition to leave to appeal

55    JH Group submits that the application for leave to appeal insofar as it seeks to appeal from the joinder judgment is misconceived and incompetent. That submission must be accepted for the reasons given at [48] – [51] of these reasons.

56    Additionally, JH Group submits the Court cannot set aside the joinder judgment nor make orders joining JHPL and JHG Mutual on any appeal. Further, even if such orders could be made, it would not assist Mr Revill because those orders would take effect from the date of the orders, as would the joinder. As such, the commencement of any proceedings against JHPL and JHG Mutual would now clearly take place after any applicable limitation period has expired and thus, joinder is futile.

57    JH Group also submits that Mr Revill seeks to raise a completely different case in the proposed appeal to the case upon which the joinder application was made. JH Group submits that if Mr Revill were permitted to raise the new case in an appeal it would render the proceedings before the primary judge little more than a preliminary skirmish and transform the appeal court into a court of first instance.

58    JH Group submits that before the primary judge, Mr Revill’s case was that a breach of cl 14 of the Wheatstone Agreement (and contravention of s 50 of the FW Act) occurred on 21 August 2013 when Mr Revill was first refused income protection benefits under that clause. Mr Revill’s contention that the contravention occurred on 11 December 2014 is a new case. Further, JH Group submits that, as of 11 December 2014, the Wheatstone Agreement did not cover Mr Revill because his employment was terminated on 22 November 2013. Therefore, the proposed new case is flawed.

Approach to leave question

59    Determination of the question as to whether the summary judgment was attended by sufficient doubt to warrant the grant of leave is bound up with a consideration of the merits of the grounds of appeal proposed in the amended draft notice of appeal. In the case of proposed ground 1, the assessment of the merits of the proposed ground of appeal, in turn, depends on the extent to which it is likely that, if leave to appeal were granted, the Court would grant leave for the appellant to raise any new points not raised before the primary judge and would receive further evidence in any appeal on those new points. Therefore, a consideration of the merits of the proposed ground of appeal cannot be divorced from a consideration of the likelihood that Mr Revill would be permitted to raise new points in the appeal and that further evidence would be received in the appeal. A similar approach to the question of leave to appeal where certain grounds of appeal raised new points was taken in Michael Wilson & Partners Ltd v Porter [2022] FCA 336 and Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [52]–[55], [73] (per Le Miere J, Steytler and Jenkins JJ agreeing).

What is the proposed ‘further’ evidence?

60    Before considering the extent to which proposed ground 1 raises new points and whether leave to raise them and receive further evidence should be permitted in any appeal, it is necessary to identify whether the evidence that is the subject of Mr Revill’s application to receive further evidence is both relevant to any proposed ground of appeal and is truly ‘further’ evidence in the sense that it was not evidence before the primary judge. The necessity arises because much of the evidence contained in the affidavits of Mr Revill and Mr Mezger of 4 May 2022 is not obviously relevant to any ground of appeal, or duplicates documents contained in other parts of the appeal book, or appears to have been in evidence before the primary judge as it is referred to in the summary judgment reasons.

61    During the hearing of the application, Mr Revill was requested to provide a note to the Court identifying which of the documents in the affidavits of Mr Revill and Mr Mezger of 4 May 2022 were not in evidence before the primary judge. On 20 May 2022, Mr Revill informally submitted a document entitled ‘Index of Proposed New Evidence’. There are 34 items in that index.

62    Item 34 in the index is the minute of proposed further substituted statement of claim. Mr Revill submitted that if leave were granted and his appeal upheld, it is his intention to amend his statement of claim in terms of that minute. The minute of proposed further substituted statement of claim articulates claims against JHPL, as first respondent, JH Group, as second respondent, and JHG Mutual, as third respondent. The minute of proposed substituted statement of claim is not further evidence but is part of Mr Revill’s submissions in support of his application for leave to appeal and any appeal. It should be received as a document in the application and in any appeal as part of Mr Revill’s submissions.

63    A significant number of the remaining items in the index are not relevant to any proposed ground of appeal. These documents should not be received in the application or in any appeal.

64    Item 1 of the index is the affidavit of Mr Revill of 4 May 2022. Paragraphs 1 – 28 of Mr Revill’s affidavit of 4 May 2022 and the documents described in items 2 – 7 of the index all concern facts about Mr Revill’s pre-employment medical condition, the manner in which he was injured and the nature of the injuries he sustained. None of that evidence is relevant to any proposed ground of appeal and should not be received in the application or any appeal.

65    Paragraph 29 of Mr Revill’s affidavit of 4 May 2022 and items 8 – 12 of the index concern other facts that are not relevant to any proposed ground of appeal. Items 8 and 9 comprise an employee benefits claim form dated 4 July 2013. It is not in dispute that Mr Revill made a claim in July 2013. Item 10 is an email chain from 23 July to 7 August 2013 involving Mr Revill and a representative of Regis Mutual Management Pty Ltd and Mr Andy Duffy of the Australian Workers’ Union. These emails concern the identification and provision of information about the employee financial support plan if Mr Revill’s claim were accepted. The emails are not relevant any ground of appeal. Items 11 and 12 are an email from a human resources representative of JHPL to Mr Revill dated 15 November 2013 and an attached letter from JHPL to Mr Revill of the same date indicating that Mr Revill had been made redundant and his employment was terminated effective 22 November 2013. Again, there is no apparent dispute that Mr Revill’s employment was terminated in November 2013. I also note that the termination letter is from JHPL (not JH Group) and, therefore, that document tends to contradict Mr Revill’s contention in proposed ground 3 to the effect that JH Group was his ‘true’ employer. None of these documents should be received in the application or any appeal.

66    Item 13 of the index is the affidavit of Mr Mezger of 4 May 2022. That affidavit exhibits documents. These are items 14 – 33 in the index.

67    Items 14 – 16 of the index are the following documents.

(a)    Item 14 is a letter dated 11 July 2013 from a representative of Regis for and on behalf of JH Group to Dr V Ikealumba requesting a medical report.

(b)    Item 15 is a letter dated 11 July 2013 from Dr V Ikealumba to JH Group containing a medical report in response to item 14.

(c)    Item 16 is a letter from Mr Revill’s solicitors to JH Group dated 1 November 2013 requesting access to documents relied on to deny Mr Revill’s claim.

None of these documents is relevant to any proposed ground of appeal and should not be received in the application or any appeal.

68    One of the exhibits to the affidavit of Mr Revill of 4 May 2022 is a letter from JH Group to Mr Revill dated 21 August 2013. The letter is signed by a representative of Regis for and on behalf of JH Group. By that letter Mr Revill was notified that his application for salary continuance made on 4 July 2013 was refused. The letter indicated that if Mr Revill disagreed with the decision he had a right to seek a review of the decision. That letter was in evidence before the primary judge on the joinder application and, therefore, is not referred to in the index because it is not further evidence. It is the document that formed the basis of the contention before the primary judge on the joinder application that any breach of cl 14 of the Wheatstone Agreement took place on 21 August 2013. The letter of 21 August 2013 should be received in the application and any appeal but not as further evidence.

69    Items 17 and 18 of the index are documents that follow from the letter of 21 August 2013 and are as follows.

(a)    Item 17 is a copy of a letter from Mr Revill’s solicitors to Regis dated 9 December 2013 in which Mr Revill requested a review of the decision outlined in the letter of 21 August 2013.

(b)    Item 18 is a copy of a letter from JH Group to Mr Revill’s solicitors, signed by a representative of Regis for and on behalf of JH Group, dated 19 December 2013 indicating that a review was undertaken and the decision was upheld for the reasons set out in that letter.

These items are potentially relevant to and are addressed as part of the question of leave to raise new points and receive further evidence in respect of proposed ground 1.

70    Items 19 – 27 of the index are the following documents.

(a)    Items 19 and 20 are correspondence with the Superannuation Complaints Tribunal in July 2014 in which Mr Revill made a complaint to the Superannuation Complaints Tribunal but was informed by that tribunal that it was not able to assist him with that complaint.

(b)    Items 21 – 27 are correspondence with the Financial Ombudsman Service between July and October 2014 in which Mr Revill sought to refer a dispute concerning his claim for income protection insurance benefits to review by the FOS, but was informed by the FOS that it was not able to consider that dispute.

None of these documents is relevant to any proposed ground of appeal and should not be received in the application or any appeal.

71    Items 28 – 31 of the index are the following documents.

(a)    Item 28 is a letter from Mr Revill’s solicitors to the manager of the Woodbridge Medical Centre dated 18 November 2014.

(b)    Item 29 is a letter from Dr Bediako of the Woodbridge Medical Centre to Mr Revill’s solicitors dated 1 December 2014.

(c)    Item 30 is a letter from Mr Revill’s solicitors to Regis dated 8 December 2014 attaching a copy of Dr Bediako’s letter and requesting a further review of the decision refusing Mr Revill’s application for salary continuance.

(d)    Item 31 is a letter from JH Group to Mr Revill’s solicitors, signed by a representative of Regis for and on behalf of JH Group, dated 11 December 2014 indicating that the original decision refusing cover was upheld.

These items are potentially relevant to and are addressed as part of the question of leave to raise new points and receive further evidence in respect of proposed ground 1.

72    Items 32 and 33 of the index are the following documents.

(a)    Item 32 is a copy of a letter from Mr Revill’s solicitors to JH Group dated 16 March 2018 which, amongst other things, requested a copy of the policy of insurance relied upon for the purposes of cl 14 of the Wheatstone Agreement.

(b)    Item 33 is a copy of a letter from JH Group, signed by a representative of Regis for and on behalf of JH Group dated 22 March 2018 responding to the letter of 16 March 2018.

These documents appear to be part of exchanges of correspondence that were either before the primary judge or referred to in his reasons for decision. As explained below, these will be added to the appeal book on that basis.

73    A number of the documents otherwise exhibited to the affidavits of Mr Revill and Mr Mezger appear to have been in evidence before the primary judge. Some of these are duplicates of documents included in another part of the appeal book. The duplicates will not be received in the application or any appeal. Other documents that appear to have been in evidence directly or indirectly before the primary judge on the summary judgment application are not included in another part of the appeal book. These documents will be received in the application and any appeal and are as follows.

(a)    Letter to Mr Revill from JH Group dated 21 August 2013.

(b)    Letter to JH Group from Mr Revill’s solicitors dated 21 November 2013.

(c)    Letter to Mr Revill solicitors from JH Group dated 21 November 2013.

(d)    Emails of 3 and 14 October 2014 between the FOS and a representative of Regis. The email of 14 October 2014 appears to be referred to in the primary judge’s reasons (SJR [49]).

(e)    Letters passing between Mr Revill’s solicitors and JH Group of 3 and 16 February 2016. The letter of 16 February 2016 appears to be referred to in the primary judge’s reasons (SJR [30]).

(f)    Letters passing between Mr Revill’s solicitors and JH Group of 16 and 22 March 2018 and 4 April 2018. The letters of 22 March 2018 and 4 April 2018 appear to be referred to in the primary judge’s reasons (SJR [30]).

Mr Revill’s case before the primary judge

74    As noted earlier in these reasons, Mr Revill filed a statement of claim with his originating process on 15 August 2019, he filed an amended statement of claim on 2 October 2019 and the primary judge made an order striking-out the amended statement of claim on 11 May 2020. At the time the primary judge heard the joinder application, Mr Revill had no statement of claim. At the time the primary judge heard the summary judgment application, Mr Revill had filed the substituted statement of claim and the respondent had filed a defence to that statement of claim.

75    In the amended statement of claim Mr Revill alleged that he was employed on a full time basis by JH Group. He claimed damages for non-payment of income protection benefits under cl 14 of the Wheatstone Agreement.

76    The primary judge's reasons for dismissing the joinder application indicate that Mr Revill had not articulated a claim against either JHPL or JHG Mutual for breach of any statutory provision which might attract the jurisdiction of this Court (JR [7], [40]). There was a lack of clarity as to whether Mr Revill also might pursue a cause of action for breach of the Wheatstone Agreement or otherwise under the FW Act. As to this question, the primary judge recorded Mr Revill’s position on the joinder application to be as follows (JR [18]):

… At first, his counsel disavowed any such claim, but in reply submissions he sought to retract that, so as to seek to reserve Mr Revill's right to pursue such a cause of action at some later time. But whether he has reserved that right or not, it was clear that the joinder application was not based on any potential claim under the FWA and, as I have said, no specific cause of action was articulated against Mr Revill's former employer JHPL, under the FWA or at all.

77    At the time of the joinder application, the claim mounted against JHG Mutual, at least, was based on s 48 of the Insurance Contracts Act 1984 (Cth) (JR [13]). Mr Revill had not articulated any basis for a claim against JHPL (JR [17], [38]).

78    On 20 November 2020, after the primary judge delivered his reasons for his decision on the joinder application on 10 November 2020, Mr Revill filed the substituted statement of claim. That statement of claim alleged that Mr Revill was employed by JH Group, alternatively JHPL, but only alleged, as against JH Group, breach of cl 14 of the Wheatstone Agreement and contravention of s 50 of the FW Act.

79    Although Mr Revill had purported to reserve his position and it was open to him to do so, no further application to join JHPL for an alleged contravention of s 50 or to join JHG Mutual for alleged involvement in such an alleged contravention was made in November 2020. Further, no separate proceedings alleging such contraventions were commenced against JHPL and (or) JHG Mutual in November 2020 or otherwise.

80    As of the time of the joinder application, Mr Revill submitted his causes of action against JHG Mutual (and JHPL) arose when Mr Revill received notification of the rejection of his claim in the letter of 21 August 2013 (JR [22]). The primary point of difference between Mr Revill and JH Group on the joinder application, as recorded in the primary judge’s reasons for decision, was whether the limitation period under the Limitation Act 2005 (WA) applied to Mr Revill’s claim pursuant to s 48 of the Insurance Contracts Act (JR [23]-[36]).

81    After considering the parties’ competing submissions on the limitation issues, the primary judge concluded as follows (JR [37]-[38]):

37    It is true that if JHPL and JHG Mutual were to be joined, they would have the burden of establishing the limitation defence. But that makes little difference in circumstances where there can be no factual controversy about the application of the defence, and Mr Revill has failed to raise any cogent legal argument as to why it does not apply. In my view, the availability of the limitation defence means that Mr Revill's proposed claim against JHPL or JHG Mutual would not have reasonable prospects of success, so that the court should exercise its discretion against joining those companies to this proceeding.

38    There is another significant reason why JHPL will not be joined. It is that Mr Revill has failed to even to articulate a coherent claim against that company. It would be extraordinary for the court to join a prospective respondent where an applicant cannot even describe how its liability is said to arise. It may be that the difficulty arises out of Mr Revill's current lack of information about the internal arrangements between members of the John Holland group. But problems of that kind are one of the reasons why the preliminary discovery procedures in Division 7.3 of the Federal Court Rules exist. A person cannot be made a respondent to a proceeding on the basis of nothing more than speculation.

Mr Revill’s proposed ‘new’ case on appeal

82    JH Group’s submission that Mr Revill is attempting to raise a new case in the proposed appeal is correct. That new case not only arises from the new date upon which it is now alleged that any cause of action accrued (11 December 2014), but also it is new because the joinder application was not founded on any allegation that JHPL breached cl 14 of the Wheatstone Agreement and (or) contravened s 50 of the FW Act or that JHG Mutual was involved in the alleged contravention of s 50 within the meaning of s 550 of the FW Act. Mr Revill’s oral submissions in the appeal that proposed ground 1 does not raise a new case on the proposed appeal should not be accepted.

83    It follows that, insofar as proposed ground 1 pleads that the primary judge erred in wrongly interpreting and (or) applying the provisions of the FW Act in dismissing the joinder application, no such error is revealed in the primary judge's reasons for decision because no such claim was ever made before the primary judge. In fact, no claim under the FW Act against JHPL or JHG Mutual was articulated and it was disavowed before the primary judge, subject to a possible reservation of rights to raise it at some later time. Further, no case was made to the effect that any cause of action accrued on 11 December 2014. In fact, Mr Revill had asserted that the applicable cause of action accrued on 21 August 2013.

84    As noted earlier in these reasons, Mr Revill relies on the minute of proposed further substituted statement of claim as the foundation for the causes of action he intends to prosecute against JH Group, JHPL and JHG Mutual if leave were granted to appeal and his appeal were successful. However, the precise nature of Mr Revill’s asserted cause of action against JHPL, alternatively JH Group, for breach of cl 14 of the Wheatstone Agreement and contravention of s 50 of the FW Act is not clear from the minute of proposed further substituted statement of claim (or any earlier versions of the statement of claim). It was not made any clearer by proposed ground 1 or Mr Revill’s submissions. The absence of clarity arises because the precise nature of the alleged obligation of JHPL (alternatively JH Group) under cl 14 is not pleaded. Nor is the precise time and manner in which that obligation is alleged to have been breached pleaded.

85    Clause 14 of the Wheatstone Agreement is in the following terms:

14. INCOME PROTECTION INSURANCE

(1)    The Company will provide at no cost to the employee, income protection insurance for the duration of their time on the Project in accordance with the Company's existing practices and policies on this issue and as set out below:

(a)    cover 100% of an Employee's average earnings up to a weekly maximum of the values shown in the table below at 14(1)(a)(i), whichever is less, for 104 weeks, applying to personal injury or sickness (other than illnesses or injuries not normally covered by the Company's insurance policy):

(i)

(b)    an excess (waiting) period of 14 days (except sporting injuries - 28 days) applying to personal injury or sickness;

(c)    cover for casual Employees with greater than one (1) week's continuous employment under the Agreement; and

(d)    the general insurance code of practice shall apply, including operation of a claims review panel run by Insurance Enquiries and Complaints (IEC) Ltd,

(2)    The costs to the Company shall not exceed 1.8% (plus GST) of employees' gross earnings.

(3)    Where an employee is in receipt of income protection insurance payments they shall not be entitled to any other payments under this Agreement.

(4)    Notwithstanding the above, the Company will provide the income protection benefits outline in this clause through JHG Mutual Ltd which will operate in lieu of the above arrangements.

The minute of proposed further substituted statement of claim does not plead the effect of cl 14 or its proper construction, as it should, so as to identify the nature of the obligation and manner in which it is alleged to have been breached.

86    Nonetheless, the substance of Mr Revill’s submissions appears to be that JHPL, alternatively JH Group, as the ‘Company’ referred to in cl 14 of the Wheatstone Agreement, was obliged to provide income protection insurance benefits (payments) to Mr Revill in accordance with the Company’s existing practices directly, or indirectly through JHG Mutual, upon Mr Revill suffering his non-workplace injury on 19 June 2013. Failure to provide such income protection benefits was a contravention of cl 14 (a term of an enterprise agreement) contrary to s 50 of the FW Act. The breach of cl 14 and corresponding contravention of s 50 of the FW Act is now alleged to have taken place on 11 December 2014 when, in effect, Mr Revill’s last attempt at a review of the decision to refuse him the benefits was dismissed. Accordingly, Mr Revill’s cause of action for contravention of s 50 of the FW Act accrued on 11 December 2014 and the limitation period for an order under the FW Act in respect of that contravention expired on 10 December 2020 in accordance with s 544 of the FW Act.

87    On the assumption that the Company was obliged to pay Mr Revill income protection benefits under cl 14, it may be arguable that the Company was under an obligation to pay, or accept liability to pay, those benefits within a reasonable period of time after Mr Revill made his claim for entitlement to the benefits: e.g., Tropicus Orchids Flowers and Foliage Pty Ltd v Territory Insurance Office (1998) FLR 441 at 488-489; Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537 at 543, 554 and 556-557. On that basis, I am prepared to assume (without deciding) that it is reasonably arguable that a reasonable period of time for the Company to accept liability and commence paying income protection benefits under cl 14 ended no earlier than 11 December 2014. That is, I am prepared to assume that Mr Revill has a reasonably arguable cause of action against the Company for a contravention of cl 14 and s 50 of the FW Act that accrued no earlier than 11 December 2014.

88    The alleged involvement of JHG Mutual and (or) JH Group, within the meaning of s 550, in JHPL's alleged contravention of s 50 of the FW Act is another new case and new aspect of Mr Revill's asserted claims. Allegations of involvement in a contravention under s 550 are serious and tantamount to allegations of dishonesty. Allegations of that nature must be pleaded clearly and with particularity: e.g., Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [9]-[15] and [31]-[34]. That has not been done in the minute. The pleading does not identify which, if any, of the subsections of s 550(2) are alleged to be the grounds of the alleged involvement. Further, none of the material facts and particulars that would be necessary to plead reasonably arguable causes of action for involvement on one or more of the grounds in s 550(2) is pleaded. The claims as articulated in the minute of proposed further substituted statement of claim are little more than bare assertion. Mr Revill should not be permitted to raise these new claims in any appeal on that ground alone. However, in any event, the asserted accessorial liability claims do not form part of any proposed ground of appeal and, therefore, are not relevant to Mr Revill's application for leave to appeal. As the allegations are no more than assertion and, otherwise, are not relevant, these can be put to one side for the purpose of assessing the merits of Mr Revill’s application for leave to appeal on ground 1.

89    Insofar as the minute of proposed further substituted statement of claim articulates a case against JH Group for contravention of cl 14 of the Wheatstone Agreement and s 50 of the FW Act, as principal, that is not a new case and falls within the general ambit of the substituted statement of claim dated 20 November 2020. That claim forms the basis of proposed ground 3.

90    It follows there are two new points raised in proposed ground 1:

(a)    a new case against JHPL and JHG Mutual founded on the FW Act; and

(b)    a new case that any cause of action for breach of cl 14 of the Wheatstone Agreement accrued on 11 December 2014.

91    As I have said earlier in these reasons, I am prepared to assume for the purpose of this application that Mr Revill has a reasonably arguable cause of action against the Company (that is, JHPL) for a contravention of cl 14 and s 50 of the FW Act that accrued no earlier than 11 December 2014. However, that does not mean that leave to appeal should be granted particularly where such leave may permit Mr Revill to raise a ground of appeal founded on a new case and on the receipt of further evidence in any appeal.

New points: applicable principles

92    Leave is required to argue a ground of appeal not raised before the primary judge. Such leave should only be granted if it is in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319; Coulton v Holcombe (1986) 162 CLR 1 at 7-8. As the High Court has said: ‘Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so’: Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71.

93    In Coulton v Holcombe (at 7), Gibbs CJ, Wilson, Brennan and Dawson JJ said:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards...

See, also, Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [92]. Further, where there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave should generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48].

94    The principles of finality and estoppel that underpin the requirement for leave and for an applicant to demonstrate exceptional circumstances are equally applicable to appeals from interlocutory judgments: e.g., Blunden v Commonwealth of Australia [2000] FCA 1581 at [45]. However, the principles are not to be applied inflexibly and, in circumstances in which a party has obtained orders for summary determination of the proceedings without a trial on the merits, a court may more readily grant leave to permit a party to raise new points and receive further evidence in an appeal from such orders: e.g., Doherty v Murphy [1996] 2 VR 553 at 554-556 and 561-563.

95    The general principles outlined above demonstrate that the Court has an undoubted discretion to permit a new point to be raised on an appeal. That discretion is to be exercised having regard to whether, in the circumstances of the case, it is expedient and in the interests of justice to allow the new ground to be argued and determined. The considerations generally to be taken into account in the exercise of the discretion include: the prospects of success on the new point; the explanation given for failing to raise the point before the primary judge; the prejudice to the respondent in allowing the point to be raised; the consequences to the applicant if leave is refused; and the integrity of the appellate process.

Further evidence: applicable principles

96    The Court has a discretion to receive further evidence in an appeal under s 27 of the FCA Act and r 36.57 of the Rules. The applicable principles are well-established.

97    In short, the power is not limited to ‘fresh’ evidence (i.e., evidence of which the applicant was unaware at the time of the original hearing and with reasonable diligence could not then have been obtained), but the exercise of the power is also informed by the principles applicable in common law proceedings with respect to the allowance of a motion for a new trial on the ground of the discovery of fresh evidence. The power should be construed liberally, although it is not unfettered, and is to be exercised having regard to the subject matter, scope and purpose of s 27 of the FCA Act. That includes having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M of the FCA Act. The discretion must be exercised judicially and s 27 should not be construed in such a way as to obliterate the distinction between original and appellate jurisdiction. Further, the power is remedial. Thus, an important consideration in determining whether it should be exercised is whether, if the further evidence had been available at the trial, it would have produced, or at least would be likely to have produced, a different result: see, e.g., CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [32] – [34] and the authorities there cited.

What, if any, reasons were given for the failure to adduce the further evidence?

98    In Mr Mezger’s affidavit of 9 May 2022 he deposes to the reasons that the further evidence was not adduced on the summary judgment application. The reasons given are as follows:

6.    The evidence was not adduced in the Court below for two reasons:

(i)    some of it should have been adduced by both parties but for some reason, at least as far as the Appellant is concerned, was overlooked; and

(ii)    the Appellant did not anticipate the Respondent's summary judgement application would succeed and accordingly did not contemplate that he needed to put all his evidence (ie effectively all the evidence he would seek to adduce at Trial) before the Court prior to the Court's determination of the Respondent's summary judgement application.

(iii)    the Appellant does not suggest by way of the two (2) reasons above that the documents or at least some of them, should not have previously been before the Court below. They were not adduced in the Court below simply because that is what has occurred prior to this point in time.

99    It is plain that the evidence was available to be adduced before the primary judge. At least part of the reason was a deliberate forensic choice based on an assessment that the evidence was not necessary because it was not anticipated that JH Group’s application would succeed. These are not reasons that support granting the application.

Leave to raise new points and receive further evidence should be refused

100    Leave to raise the new case against JHPL and JHG Mutual in any appeal should be refused. Likewise, the application to receive further evidence so as to raise a new argument that the cause of action for breach of cl 14 of the Wheatstone Agreement accrued on 11 December 2014 should be refused. As a consequence, none of the documents referred to in [69] and [71] should be received in any appeal.

101    The primary judge's reasons for decision dismissing the joinder application reveal that Mr Revill made a deliberate decision, at the time of that application, not to articulate a case against JHPL or JHG Mutual founded on contraventions of the FW Act. It would be antithetic to the principle of finality to permit Mr Revill to raise a new case in any appeal in circumstances where he deliberately chose not to raise that case in the hearing before the primary judge.

102    There is no reason why the interests of justice demand that Mr Revill not be bound by the manner in which his case was conducted before the primary judge. For the same reason, Mr Revill's application for the Court to receive further evidence in the appeal should be refused to the extent that the evidence is intended to support proposed ground 1. To the extent it is intended to support proposed ground 3, it should also be refused because the explanation given reveals a deliberate decision was taken not to adduce evidence that was manifestly available to Mr Revill at the time the application for summary judgment was heard.

Leave to appeal on proposed ground 1 should be refused

103    It follows that leave to appeal on proposed ground 1 should be refused because Mr Revill should not be permitted to raise the new points upon which that proposed ground is founded. That is sufficient to dispose of the application for leave to appeal on proposed ground 1, however, there are two other reasons for considering that leave should be refused. First, the primary judge’s decision to dismiss the joinder application had no bearing or connection with his decision to order summary judgment. Therefore, the asserted ‘error’ could not have brought about a different outcome on the summary judgment application. Second, and in any event, no substantial injustice flowed from the decision to dismiss the joinder application as it remained open to Mr Revill to commence separate proceedings against JHPL and (or) JHG Mutual in November 2020 and thereafter.

Summary judgment not founded on joinder judgment

104    As noted earlier in these reasons, Mr Revill submitted that his application for leave to appeal on proposed ground 1 falls within s 24(1E) of the FCA Act. That is, Mr Revill was not precluded from challenging the correctness of the joinder judgment as part of an appeal from the summary judgment. Mr Revill submitted that the summary judgment was a ‘final’ judgment within the meaning of s 24(1E) of the FCA Act.

105    Section 24(1D)(b) of the FCA Act provides that a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of subs 24(1A) and (1C). The effect of that provision is to deem a summary judgment under s 31A to be an interlocutory judgment and to require leave to appeal from such a judgment to be granted in accordance with s 24(1A) of the FCA Act.

106    Section 24(1E) provides:

(1E)    The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

107    Subsection 24(1E) of the FCA Act is linked to subs 24(1AA), which provides:

(1AA)    An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is:

…

(b)    a decision to do, or not to do, any of the following:

(i)    join or remove a party;

...

108    The effect of s 24(1E) is to permit a party to challenge an interlocutory judgment from which there is no right of appeal under s 24(1AA) if an error in a final judgment is founded on the interlocutory judgment or it affected a final judgment in such a manner that an appeal from the final judgment should be upheld.

109    There are two significant difficulties with Mr Revill’s submission. First, it requires ‘final judgment’ in s 24(1E) to be read without regard to s 24(1D)(b) deeming the summary judgment to be interlocutory. Second, it requires the Court to consider that the summary judgment was a final judgment which is contrary to other decisions of this Court.

110    As to the first difficulty, s 24(1AA) and s 24(1D), amongst other amendments to s 24, were introduced along with a suite of other amendments to the FCA Act in the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). The Explanatory Memorandum to the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 indicated that, at time of the Bill, there were differences in the case law about whether particular decisions were interlocutory or final for the purposes of determining appeal rights. Reference was made to Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 and that the amendments were intended to provide greater certainty about appeal rights and reduce costs incurred in litigating these matters, and to provide clarity and avoid the difficult logic of Jefferson. Section 24(1E) was also added as part of those amendments. Given the intention of the amendments that introduced subs 24(1AA), 24(1D) and 24(1E) was to create certainty about appeal rights and create clarity, it would be contrary to the evident purpose of the legislation to interpret s 24(1E) such that a judgment under s 31A is to be considered an interlocutory judgment for the purposes of s 24(1A), but final (at least where summary judgment is granted) for the purposes of s 24(1E). It would also require a summary judgment to be treated as interlocutory of the purposes of the application for leave to appeal, but final for the purposes of the appeal.

111    As to the second difficulty, a number of decisions of this Court have held that granting or refusing summary judgment under s 31A is an interlocutory judgment. It involves a determination on the material before the Court as to the prospects of the moving party successfully prosecuting the proceeding, such that its legal effect is not final: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [40]-[43]; Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 at [17], [58], [92], [93], [96]-[109].

112    In Jefferson the majority, Finkelstein and Gordon JJ (at [10] – [15] and [173]), held that a decision granting summary judgment was a final judgment. Rares J dissented and held that it was an interlocutory judgment (at [42]-[62]). In Luck, Rares J formed part of the majority which did not follow Jefferson and, instead, preferred the reasoning of Rares J in Jefferson. The correctness of the decision in Luck was confirmed in Kowalski. The decisions of the Court in Luck and Kowalski are not manifestly wrong. Further, and in any event, Mr Revill has made no submissions to the effect that those decisions were wrong nor invited the Court to reconsider the point or over-rule them.

113    Consequently, irrespective of whether or not a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1E), on the state of current authorities of this Court it is difficult to see how such a decision is not a ‘final judgment’ within the ordinary meaning of that expression. Therefore, it is difficult to see how s 24(1E) could apply to the primary judge’s summary judgment.

114    Nonetheless, s 24(1E) of the FCA Act reflects the general position that an interlocutory order that affects a final judgment may be the subject of a ground of appeal from the final judgment. In Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478, Gaudron, McHugh and Hayne JJ said (at [4]-[7]):

4    In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.

5    It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example. As was said, in a very early judgment of this Court:

"There is only one judgment of the Court appealed from . . . and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him."

As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford:

"On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it."

In both Nolan v Clifford and Crowley v Glissan reference was made to Maharajah Moheshur Sing v Bengal Government as authority for the proposition stated.

6    The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that "on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result" (emphasis added [in original]).

7    It is necessary to make the qualification, "which affected the final result", at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. …

8    Further, it may be that there are some kinds of interlocutory decisions made, other than in the course of the hearing which leads to entry of final judgment in the proceeding, which may present some other issues for consideration. There are circumstances in which an interlocutory decision must be treated as concluding an issue between the parties. Whether all decisions of that kind may be challenged in an appeal against the final judgment in the proceeding is a question to which a general answer need not be attempted. It is enough to notice in this regard the decision of the Court of Appeal in New South Wales, in David Syme & Co Ltd v Lloyd. It was held there that a ruling made in the separate trial of an issue (that the article published was capable of bearing the imputations pleaded in a claim for defamation) was open to challenge on appeal against a subsequent jury verdict. This conclusion is consistent with the qualified formulation of the relevant principle. It is, as we say, unnecessary to explore the limits of the principle.

(Citations omitted).

115    Although the High Court in Gerlach v Clifton Bricks was considering an appeal from a final order and the extent to which an interlocutory order that affected the final order may provide a ground for appealing from the final order, the principle may be of wider application. That is, it may be that on an appeal from a later interlocutory order (at least where it has the practical effect of finally determining the proceedings) an earlier interlocutory order that 'affected the final result' of the later interlocutory order can form the basis of a ground of appeal from the later interlocutory order. Accordingly, although s 24(1E) of the FCA Act does not appear to have any application to an appeal from a decision granting or refusing summary judgment under s 31A, there may be circumstances in which an appeal from a summary judgment under s 31A may be founded on an earlier interlocutory order 'which affected the final result'. Therefore, for the purposes of this application (and without deciding), I am prepared to assume that an error in the primary judge’s joinder judgment could provide a valid ground for an appeal from the summary judgment.

116    However, the key consideration for the purposes of the general principle referred to by the High Court in Gerlach v Clifton Bricks is that on an appeal from the 'final order' an appellate court can correct any interlocutory order which affected the final result. Here, the primary judge's interlocutory judgment refusing to join JHPL and JHG Mutual as parties to the proceedings had no affect at all on the primary judge's summary judgment dismissing Mr Revill's proceedings against JH Group under s 31A of the FCA Act. The decision to dismiss Mr Revill's claim against JH Group was unrelated to the decision not to join the other parties to the proceedings. Even if JHPL and JHG Mutual had been joined and the statement of claim amended in the form of the proposed further substituted statement of claim, it would have been open for JH Group to apply for and be granted summary judgment under s 31A in respect of Mr Revill's claim against JH Group. In short, even if the joinder judgment were erroneous, any error in that judgment provides no ground for setting aside the summary judgment against JH Group as it had no effect on the final result against JH Group.

No substantial injustice

117    The joinder judgment was not a judgment that resulted in an issue estoppel or res judicata concerning the issue of whether or not Mr Revill has, or had, reasonably arguable causes of action against JHPL and (or) JHG Mutual. First, the parties to the joinder judgment (Mr Revill and JH Group) were not the same persons as the parties to any proceedings Mr Revill may bring, or may have brought, against JHPL and JHG Mutual. Therefore, JHPL and (or) JHG Mutual could not rely upon issue estoppel or res judicata in any proceedings Mr Revill may bring, or may have brought, against them. Second, an interlocutory judgment is not a final judgment. Issue estoppel and res judicata only apply to final, not interlocutory, judgments: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [21], [25]; Schlieske v Young; Schlieske v Robilliard (1987) 79 ALR 554 at 574.

118    At the date of the joinder judgment (6 November 2020) and at the date of Mr Revill's substituted statement of claim (20 November 2020), and, indeed, at any other time, it was open to Mr Revill to commence separate proceedings against each of JHPL and (or) JHG Mutual. Therefore, no substantial injustice resulted from the primary judge's interlocutory judgment refusing to join JHPL and JHG Mutual. If and to the extent any causes of action against JHPL and JHG Mutual were not barred by any relevant limitation period as of November 2020, Mr Revill could have, had he so desired, commenced proceedings against JHPL and (or) JHG Mutual.

Other arguments for refusing leave

119    Given the above reasons for refusing leave, it is not necessary to deal with JH Group’s remaining submissions in opposition to the grant of leave to appeal on proposed ground 1.

PROPOSED GROUND 3

Mr Revill’s case for leave to appeal on proposed ground 3

120    In proposed ground 3, Mr Revill asserts that the primary judge erred in law in finding that JH Group was not the ‘employer’ as that term is used in the FW Act. There are legal and factual components to this proposed ground of appeal.

121    The legal component is that the term ‘employer’, as used in ss 52, 53 and 561 of the FW Act, is to be interpreted beneficially such that JH Group may be Mr Revill’s employer for the purposes of that Act even though JHPL is his employer of record. The beneficial interpretation means that JH Group is also an employer covered by the Wheatstone Agreement. The factual component is that, on the evidence before the primary judge, at all relevant times JH Group owned and controlled JHPL and JHG Mutual and, thereby, was at all times an ‘employer’ of Mr Revill for the purposes of the FW Act. These components of the proposed ground of appeal were developed in Mr Revill’s written and oral submissions as described later in these reasons.

JH Group’s opposition to leave to appeal on proposed ground 3

122    JH Group submitted that proposed ground 3 does not extend beyond the contentions thoroughly dealt with and rejected by the primary judge and does not identify any appellable error. Further, there is a deficiency in that, it is of no assistance to Mr Revill for the Court to declare that JH Group was his ‘employer’ because JH Group is not the employer covered by the Wheatstone Agreement. That is, JH Group owed no obligations, as employer, to Mr Revill under the Wheatstone Agreement and, therefore, could not be in breach of that agreement and contravene s 50 of the FW Act by reason of such breach.

The primary judge’s reasons for decision

Approach to summary judgment

123    After setting out the principles applicable to an application for summary judgment under s 31A(2) of the FCA Act (SJR at [17]-[19]), the primary judge said (SJR at [31]):

I will approach that question in accordance with the principles I have summarised above, so that it is necessarily a preliminary assessment of the evidence. Along with the threshold question under s 31A(2)(b) of the Federal Court Act is an evaluation of whether, in all the circumstances and having regard to the purpose of s 31A, the case is one which should be permitted to go to trial. Any conclusion that it should not go to trial must be reached with due caution and regard to the fundamental principle that ordinarily a person who, in a regular way, invokes the jurisdiction of the court to determine a dispute is entitled to have it determined after a trial on the merits.

Mr Revill does not contend that the primary judge made any error of law concerning his identification of the principles applicable to summary judgement or in his approach to the question.

Conclusions on the employer question

124    As to the employer question, the primary judge made the following observations (SJR at [20]-[21], [32]):

20    On the face of things, the company that Mr Revill has sued is neither the employer who undertook potentially relevant obligations under the EA, nor the entity which may have undertaken obligations of insurance in relation to Mr Revill. The offer of employment which Mr Revill signed was expressed to have been made by JHPL. The only employer on whom the EA is expressed to be binding is JHPL. As for insurance, the documents that have been produced to the court indicate that it was JHG Mutual which was potentially obliged to other companies in the John Holland corporate group to pay claims made by them in respect of injuries, illness or death suffered by their employees. In so far as it is potentially relevant to Mr Revill's claim, JHG Mutual's position as the possible insurer emerges from an instrument called the 'Rules of JHG Mutual' read together with 'Schedules and Protection Wordings' for the 2012-2013 financial year, which appear to have been issued for the benefit of companies in the John Holland corporate group, including JHPL and JH Group. Mr Revill points to no agreement or other instrument in which JH Group has undertaken any obligation to him, or under which JH Group has undertaken an insurance obligation to anyone.

21    As a result, it does seem that Mr Revill has not sued the companies potentially liable under his two causes of action, namely his employer under the EA, JHPL, nor the possible insurer, JHG Mutual. He does not seriously dispute the matters set out in the previous paragraph which, without more, would lead to that conclusion. As has been said, his resistance to summary judgment is based on an estoppel argument and on an argument that, despite the prima facie position, JH Group is in fact liable because of its alleged control over JHPL and JHG Mutual, as well as the purpose for which the John Holland corporate group is structured in the way that it is.

…

32    Ultimately, the onus of persuading the court that this matter should not be permitted to go to trial falls on JH Group. But the reality of this case is that, as I have described, JH Group has given reasons why, on the face of the evidence before the court, Mr Revill has simply sued the wrong company. Those reasons have substance. Therefore it is Mr Revill who has the practical onus here of persuading me that JH Group's liability should nevertheless only be determined after a trial.

125    The primary judge then considered the parties' submissions and the evidence on the application before him (SJR at [33]-[48]) and concluded (SJR at [50]-[52] and [54]):

50    In my view none of the evidence to which Mr Revill's counsel has referred provides any reasonable basis to think that at trial he may be able to establish that the JH Group should be equated with its related companies JHPL and JHG Mutual for the purposes of his claim. There is simply no cogent basis in the evidence to assert that the John Holland corporate structure is a sham or that it was designed in order for JH Group to evade liabilities. Nor is there any basis to think that JHPL or JHG Mutual acted as partners to or agents of JH Group when they undertook such obligations as they are alleged to owe to Mr Revill.

51    There are further difficulties with the case which have not yet been mentioned, which arise from the fact that both pleaded causes of action are statutory in nature. Under the provisions of the FWA that are described above, Mr Revill would need to persuade the court that, here, the reference in s 53(1) to an enterprise agreement being 'expressed to cover (however described) … the employer' encompasses an entity that is not named in the EA at all (that is, JH Group). He would need to persuade the court that the reference in s 48 of the ICA to 'the insurer' in connection with 'a contract of general insurance' is a reference to an entity which, on Mr Revill's newly proposed case, is insuring itself. That is because under that case, both the insurer of the employer (with Mr Revill as third party beneficiary) and the employer who is the insured should be taken to be JH Group. These are further examples of the incoherence of the case now sought to be put.

Conclusion

52    As a result of the matters discussed above I consider it highly likely that the position that appears on the face of the documents - that Mr Revill has sued the wrong company - is the true position. None of the matters which Mr Revill's counsel has outlined to refute that have any substance.

…

54    In my view, Mr Revill has no reasonable prospect of prosecuting the proceeding. That must be taken with the failure on the part of his solicitors even to raise the relevant claims until now, despite the fact that the roles of JHPL and JHG Mutual appear on the face of the EA and were pointed out to Mr Revill's solicitors before the proceeding commenced. Even on the cautious approach mandated by the authorities, this is a case that should not go to trial. The interlocutory application will be allowed and judgment will be entered for the respondent.

126    It follows that, contrary to the assertion in proposed ground 3, the primary judge made no finding to the effect that JH Group was not the employer as that term is used in the FW Act. The substance of the primary judge’s conclusion was that, on the evidence before him on the application, Mr Revill had no reasonable prospect of prosecuting a cause of action against JH Group as employer.

127    While the primary judge made no finding of the kind asserted in proposed ground 3, I am prepared to consider that the substance of proposed ground 3 in the draft notice of appeal is to the following effect:

The primary judge erred in finding, in effect, that there was no reasonable prospect of the applicant establishing at trial that the respondent was the employer of the appellant as that term is used in the Fair Work Act 2009 (Cth).

Mr Revill’s case before the primary judge

128    On the summary judgment application, Mr Revill sought to establish a sufficient foundation in the evidence for the Court to conclude that there were issues about ‘piercing the corporate veil’ that should go to trial. Mr Revill’s submissions before the primary judge were based on an estoppel argument and on an argument that, despite the prima facie position, JH Group is liable because of its alleged control over JHPL and JHG Mutual, as well as the purpose for which the John Holland corporate group is structured. The estoppel argument was initially pursued in proposed ground 2, but has been abandoned. The argument involving ‘piercing the corporate veil’ or a variant of it is pursued in proposed ground 3.

129    The primary judge recorded Mr Revill’s argument on piercing the corporate veil in the following terms (SJR at [24]-[25]):

24    The reasons why Mr Revill says JH Group is liable to him appear in his written submissions in this summary judgment application, which say that in the SSOC Mr Revill advances the following 'causes of action':

(1)    At all material times JH Group 'has dominant control over JHPL and JHG Mutual that both acted as one with Respondent [sic] … Therefore, the acts of the [sic] JHPL and JHG Mutual are acts of the Respondent who is responsible for the acts of JHPL and JHG Mutual'. This appears to be supported by submissions as to the constitution of the boards of directors of JH Group, JHPL and JHG Mutual, and by assertions such as that JH Group 'is the head and brain of the trading venture'.

(2)    There is a reference to John Holland Group Pty Ltd v Commissioner of Taxation [2015] FCAFC 82; (2015) 232 FCR 59 (JHG v CoT) at [14]-[24] in which, Mr Revill says, the court 'examined the Respondent and JHPL (collectively "John Holland") for the period 31 March 2012 to the [sic] 31 March 2013'. In oral submissions Mr Revill's counsel said that this case was an example of 'how John Holland Group avoids its employment responsibilities by using its subsidiary companies to divide its workforce into staff and workforce'. Mr Revill also submitted that the case shows that all employees, whether employed by JHPL or JH Group, were required to act in accordance with directions from JH Group and to 'observe certain codes of conduct directed by' JH Group. Once again, it is asserted that JH Group 'is in dominant control [of] JHPL'.

(3)    The written submissions also asserted that JH Group 'is in dominant control of JHG Mutual'. This is said to mean that JH Group and JHG Mutual 'act as one and are the insurer as that term is used in the ICA'.

25    These matters are all put in the written submissions without reference to any evidentiary support, although, as will be seen, counsel did refer to some evidence at the hearing. Mr Revill goes on to submit that JH Group has 'used its dominate [sic] control over its subsidiaries JHPL and JHG Mutual to evade legal obligations to the Applicant'. Referring to Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254, the submissions say that there are two instances where the separate legal personality of a company is to be disregarded in the context of a corporate group: (1) when there is a partnership or agency between the companies in the group; or (2) where the creation or use of the company was designed to enable a legal or fiduciary obligation to be evaded or a fraud to be perpetrated. Mr Revill relies on both of these categories. His counsel appeared to submit that JHPL and JHG Mutual were agents of, alternatively partners of, JH Group. He also submitted that JH Group has 'used JHPL and JHG Mutual to avoid providing income protection insurance in this case to the Applicant' or 'for the sole or dominant purpose of evading an existing obligation to provide income protection insurance'.

130    The primary judge then observed that none of these contentions was advanced in the substituted statement of claim, that the allegations would need to be pleaded distinctly and particularised properly and that substantial amendments to the substituted statement of claim would be necessary if such a claim were to proceed. The primary judge then said (SJR at [29]-[30]):

29    Allowance must be made for the fact that the internal arrangements between members of the John Holland corporate group may not have been fully visible to Mr Revill. It could be that preliminary discovery, or discovery in the present proceeding, would be necessary in order for him to advance the claim outlined in his written submissions. But Mr Revill made no attempt to take advantage of any such procedure before the summary judgment application was filed, and still has not pleaded the case set out in his submissions.

30    That is so, even though Mr Revill put into evidence a bundle of correspondence and other documents which includes the following letters from JH Group to Mr Revill's solicitors:

(1)    a letter dated 15 February 2016, drawing the solicitors' attention to the clause of the EA which provides for income protection benefits to be provided through JHG Mutual;

(2)    a letter dated 22 March 2018 saying that the EFSP 'provides the details of the income protection benefits provided through the [sic] JHG Mutual Ltd'; and

(3)    a letter dated 4 April 2018 saying that the relevant insurance wording 'is between John Holland Mutual and the employing entity, which is John Holland Pty Ltd'.

So Mr Revill's solicitors had all this pointed out to them before they commenced this proceeding on 15 August 2019. And yet they chose not to include JHPL or JHG Mutual as defendants at that time. They did not seek to confront the problem until the joinder application and even when that application was determined against Mr Revill, they made no real attempt to address the implications for their case until the summary judgment application forced them to confront the issue. In my view that is relevant to the exercise of any discretion that arises if the threshold question of whether there is a reasonable prospect of successfully prosecuting the proceeding is answered against Mr Revill. I will return to it after answering that question.

131    As to the exercise of the discretion, the primary judge returned to it (SJR at [54]) in the passage from his reasons referred to at [104] above. That is, the delay of Mr Revill in raising ‘piercing the corporate veil’ until the summary judgment application, despite having been on notice of the John Holland corporate group structure before the proceedings were commenced, was a factor that weighed in favour of granting summary judgment.

132    After setting out the evidence, the primary judge concluded that it established that JH Group, JHPL and JHG Mutual were part of the same corporate group, have common directors and that JHPL is a subsidiary of JH Group. The primary judge then said (SJR at [38]-[39]):

38    … That is an unremarkable structure for a large commercial enterprise and could be said of many other corporate groups in Australia. In Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549, after a survey of the authorities about piercing the corporate veil in corporate groups, Rogers AJA concluded (at 577D to E):

In the result, as the law presently stands, in my view the proposition advanced by the plaintiff that the corporate veil may be pierced where one company exercises complete dominion and control over another is entirely too simplistic. The law pays scant regard to the commercial reality that every holding company has the potential and, more often than not, in fact, does, exercise complete control over a subsidiary. If the test were as absolute as the submission would suggest, then the corporate veil should have been pierced in the case of both Industrial Equity [Ltd v Blackburn (1977) 137 CLR 567] and Walker v Wimborne [(1976) 137 CLR 1].

The fact that a parent company exercises control over its subsidiary does not itself justify treating acts of the subsidiary as those of the parent: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 451F (Steytler J). Hence some further facts would need to be established here for the court to conclude that JHPL or JHG Mutual were agents or partners of JH Group, or that the John Holland corporate group was a sham or otherwise structured to avoid some obligation.

39    Counsel for Mr Revill sought to enlist the case of JHG v CoT in support of the last contention, that the John Holland corporate group was, in fact, structured to avoid legal obligations. He submitted that it was an example of how 'John Holland Group avoids its employment responsibilities by using its subsidiary companies to divide its workforce'. This submission does not address the rule that evidence of a finding of fact in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding: Evidence Act 1995 (Cth) s 91(1). But even disregarding that rule (which counsel for JH Group was essentially prepared to do), JHG v CoT does not suggest that the structure of the John Holland corporate group was a sham or designed to avoid an obligation.

133    The primary judge analysed John Holland Group Pty Ltd v Federal Commissioner of Taxation [2015] FCAFC 82; (2015) 232 FCR 59 and explained his reasons for considering that decision was not of assistance to Mr Revill’s argument. The primary judge then dealt with a document dated 4 April 2013 (SJR at [44]) about which he said:

Of more direct relevance to the present case was a document called 'John Holland Workforce Employment Agreement Permanent' which Mr Revill signed on 4 April 2013 and which formed part of his terms of employment. Clause 7.1 of that document provided that the employee ('you') was:

bound by, and must comply with and remain familiar with, the Company's policies and procedures, as amended. The policies and procedures are available for you to view on the Company's intranet.

Counsel for Mr Revill readily accepted that 'the Company' was defined to mean JHPL. But he went on to submit that 'John Holland Pty Ltd doesn't have a website. John Holland Group Pty Ltd have a website with their policies and procedures that must be followed by the subsidiaries'. There was no evidence of this. Counsel could only refer to a document which had the internet address www.johnholland.com.au written on it. There was no evidence that this was owned or operated by JH Group, or as to the contents of the website. Nor was there any evidence equating it to the 'intranet' referred to in cl 7.1.

134    Last, the primary judge considered evidence of the extent to which corporate boundaries within the John Holland corporate group were observed. The primary judge concluded that none of the evidence upon which Mr Revill had relied suggested that there was any disregard of corporate boundaries (SJR at [46]-[49]). The primary judge then set out his conclusions referred to at [104] above.

Mr Revill’s ‘employer’ case in the proposed appeal

135    The substance of Mr Revill's submissions in the appeal was that the evidence before the primary judge demonstrated a reasonably arguable cause of action against JH Group for breach of cl 14 of the Wheatstone Agreement and contravention s 50 the FW Act on the basis that JH Group was Mr Revill's employer and JH Group was covered by the enterprise agreement as Mr Revill's employer for the purposes of ss 52, 53 and 561 of the FW Act.

136    Mr Revill submitted that in certain circumstances the Court can declare, for the purposes of ss 52, 53 and 561 of the FW Act, that an entity is the ‘true employer’ of an employee where another entity is merely the ‘employer of record’ for that employee. In support of that proposition Mr Revill relied on Re Branded Media Holdings Pty Ltd (in liq) [2020] NSWSC 557 and Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354; (2002) 131 IR 424.

137    Mr Revill submitted that there was evidence before the primary judge to the effect that JH Group owned and controlled JHPL, JH Group was the ‘head and brain’ of JHPL (alter ego), JHPL employees were required to act in accordance with directions of JH Group and JHPL does not have a website and external marking or promotion. Mr Revill submitted that JH Group had also made relevant concessions through the affidavit of Ms Ward. Taking all these matters together, Mr Revill submitted that if the matter were to proceed to trial, matters similar to those set out in Branded Media Holdings (at [5], [7]-[9], [13]-[17], [19]-[23] and [25]-[31]), would need to be considered, as opposed to the limited number of matters referred to by the primary judge in his reasons for decision. Mr Revill submitted the only fair way for that more detailed consideration of the issue of which entity is the 'true employer' is at trial and not on an interlocutory summary basis. In aid of that submission, Mr Revill submitted that JH Group had failed to comply with discovery orders of the primary judge and, therefore, the ‘employer’ question should not have been determined summarily against Mr Revill before JH Group had given full disclosure of documents.

Merits of proposed ground 3

138    There is substance in JH Group’s submissions to the effect that proposed ground 3 involves rehashing the arguments which failed before the primary judge and does not identify any appellable error. Further, even if JH Group were Mr Revill’s true employer, JH Group is not the employer which is covered by the Wheatstone Agreement. However, the manner in which Mr Revill developed his oral submissions with respect to proposed ground 3 revealed that his argument was not identical to the argument which failed before the primary judge and he attempted to identify appellable error on the ‘true’ employer issue.

139    Mr Revill’s argument was that JHPL was agent for JH Group and that JH Group was an ‘employer’ covered by the Wheatstone Agreement. That is a refined version of the 'piercing the corporate veil' argument made before the primary judge. However, the evidence relied on in support of the argument that JHPL was JH Group’s agent is the same evidence that was before the primary judge and, therefore, it is necessary to show that the primary judge made (or arguably made) an error in reaching the conclusion that there is no reasonable prospect of Mr Revill demonstrating at a trial that JHPL was the agent of JH Group as principal and ‘true employer’. It is also necessary to show that the primary judge made (or arguably made) an error of law in failing to conclude that JH Group, as ‘true employer’ was covered by the Wheatstone Agreement.

The discovery issue

140    As to Mr Revill’s submission to the effect that the primary judge should not have given summary judgment because JH Group had failed to comply with an order for discovery, that can be disposed of shortly. The question of compliance or non-compliance with the relevant order is not a matter which was raised before the primary judge. It is not a proposed ground of appeal. There is no application for the Court to receive further evidence that would allow the Court to determine the issue of compliance or not with the relevant order. There is no evidence before the Court that there are documents in existence which JH Group has not disclosed and which have a bearing or may have a bearing on the issue of whether JHPL was agent of JH Group. Therefore, I have taken no account of that submission in assessing the merits of the application for leave.

The agency issue

141    Branded Media Holdings was a decision of Black J on an application by the liquidators of Branded Media Holdings and deed administrators of Brand New Media Pty Ltd seeking directions under s 90-15 of the Insolvency Practice Schedule (Corporations), or alternatively s 479(3) of the Corporations Act 2001 (Cth) or in the Court's inherent jurisdiction. The directions raised the question of the identity of the employer of specified employees within the Branded Media group. The liquidators, alternatively liquidators and deed administrators, sought orders to the effect that they were justified in determining that the specified employees were employed by Branded Media Holdings or that they were employed by BNM. The liquidators' primary position was that Branded Media Holdings was the employer, although it was recognised that there was a case for alternative characterisation of BNM as the employer. Black J made a direction that the liquidators and deed administrators were justified in determining that the employer of the specified employees was BNM.

142    The decision of Black J proceeded on 56 assumptions set out at [5] of his Honour's reasons for decision. The application also proceeded on affidavit evidence described in [7]-[17] of his Honour's reasons for decision. Black J referred to and had regard to other decisions in which the question of whether a company was the employer of particular employees was considered for the purposes of s 556 of the Corporations Act. Two of the main decisions considered were Gothard (recs and mgrs of AFG Pty Ltd (in liq) v Davey [2010] FCA 1163; (2010) 80 ACSR 56 and Re Plutus Payroll Australia Pty Ltd (in liq) [2019] NSWSC 1171; (2019) 139 ACSR 536.

143    Black J then considered the assumptions and evidence before him and determined that BNM rather than Branded Media Holdings was a true employer of the specified employees. In reaching that conclusion Black J said (at [31]):

As I have noted in addressing the parties’ submissions, a structure by which Holdings was the employing entity, where it had no assets or revenue from which it could meet employees’ entitlements, and did not charge for its services, would have had no intelligible business purposes, or at least no proper purpose. The documentation of the relationship is consistent with Holdings being an “employer of record” and is less significant in identifying the true employer than the fact BNM incurred the costs of paying employees for entities across the group and on-charged other subsidiaries in respect of those costs. The question of direction or control is, at best, neutral where the issue arises in respect of a corporate group; and those said to have exercised that control were either employed by BNM (in the case of Mr Smith) or otherwise and involvements with both Holdings and BNM in different capacities. For these reasons, and adopting substantially the same reasons as was adopted in Gothard, it seems to me that BNM rather than Holdings was the trued employer of the Specified Employees.

144    In Gothard v Davey, Edmonds J said (at [52]):

Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.

145    After setting out various cases discussing the general principles Edmonds J then said (at [60]):

Aspects of the practical realities of the relationship which have been considered relevant in the cases referred to above, include a consideration of the entity which:

(a)    had practical and legal control and direction of the employees;

(b)    made decisions about hiring;

(c)    made decisions about disciplinary issues;

(d)    made decisions about the level of remuneration;

(e)    actually paid remuneration;

(f)    communicated with employees about leave;

(g)    made decisions about termination of employment.

146    Black J also considered the general principles in Re Plutus where he said (at [21]):

In Australian Insurance Employees Union v WP Insurance Services Pty Ltd (1982) 42 ALR 598 at 606, the fact that a person’s salary was paid by a particular company and the tax group certificates issued to her showed that company as her employee did not establish that that company was her employer. In Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465, a first company was held to be the employer, notwithstanding that a second company’s name was shown on payslips and group certificates, where the first company made the employee’s services available to the second company on condition that it pay their wages and attend to relevant tax deductions. In Re C&T Grinter Transport Services Pty Ltd (in liq) [2004] FCA 1148 at [20], Finn J pointed to several considerations that were relevant to identifying which of two or more possible entities was the employing company and noted, inter alia, that the totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment of that matter and that documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship. His Honour also emphasised that, in determining the identity of a disputed employer, the Court is entitled to consider “the reality of purported contractual arrangements”; that conversations and conduct at the time of the alleged engagement of the employee is of considerable significance; and the employees’ beliefs as to the identity of their employer is admissible and is entitled to weight.

147    These cases are authority for the proposition, at least insofar as s 556 of the Corporations Act is concerned, that the employer of record may not be the employer for the purposes of s 556 and the Court will look to the 'practical realities' to determine which of two or more possible entities is the employer of an employee. In so doing the Court will have regard to the factors referred to by Edmonds J in Gothard v Davey at [60].

148    Burswood Catering concerned an appeal against the Western Australian Industrial Relations Commission in Court Session by which the Commission in Court Session agreed to issue an award to cover the employees of Burswood Catering and Entertainment. The award terms were substantially similar to the terms of an agreement between the relevant union and Burswood Resort (Management) Ltd registered in the Western Australian Industrial Relations Commission (2001 agreement). The evidence demonstrated that before incorporation of BCE staff employed at Burswood Casino who worked in the food and beverage and bar operations were employed by BRML. BRML and the relevant union were involved in a number of industrial disputes which ultimately led to the 2001 agreement. That agreement provided the employees of BRML with wages and conditions that were in excess of those normally applicable to workers in the same industry governed by other applicable awards. BCE was incorporated less than a month after the 2001 agreement was made.

149    The Commission in Court Session made findings, in effect, that BCE was not a catering contractor distinct from the Burswood group of companies. The decision to have BCE employ staff to do work previously performed by employees of BRML within the resort merely reduced the terms and conditions of employment payable for that work. Burswood Limited was effectively contracting to itself. These matters caused an inequity. The inequity resulted in an avoidance of the 2001 agreement and BCE's employees receiving entitlements less than those applicable under the 2001 agreement albeit equivalent to those under the award otherwise applicable. The Commission in Court Session made a new award for BCE’s employees on terms equivalent to the 2001 agreement. BCE appealed to the Full Court of the Supreme Court of Western Australia.

150    One of the grounds for the Commission in Court Session reaching the conclusion that a new award should be made was that the corporate veil should be lifted and that BCE should be treated as an agent of BRML as principal. The Commission in Court Session had considered the principles relating to lift a corporate veil. These are set out in Burswood Catering at [34]-[44] in which Scott J (Parker and Hasluck JJ agreeing) said that the Commission in Court Session was not in error in looking behind the corporate veil and determining that BCE was an agent of BRML. The principles were that courts and tribunals are reluctant to lift the corporate veil but will do so in three circumstances:

(a)    when a particular law requires it to be done;

(b)    when it can be established that the company is an agent of its controllers;

(c)    when the court (or tribunal) is satisfied that the company has been created as a mere façade or shame to conceal the true facts.

As to agency, a number of factors may be relevant such as: are profits treated as profits of the controller (putative principal); are the persons conducting the business appointed by the controller; is the controller the ‘head and brain’ of the business; does the controller govern the business venture, decide what should be done and what capital should be used; were profits made by skill and direction of the controller; and is the controller in effectual and constant control. Scott J then said (at [39]-[40]):

39    … In its conclusions … the Commission in Court Session said:

[68]    Having considered all of the evidence it [sic it is] our view that the corporate veil should be lifted. If the question set out by Atkinson J (in Smith, Stone and Knight) are asked, it is apparent from the uncontradicted evidence set out above that each question must be answered in the affirmative. BCE plainly has not [sic] resources of its own. In relation to the internal labour hire arrangements, the structure of that arrangement cannot be described as a contract to effect a transfer of “business” of BRML in the sense of a [sic] obligation contracted to carry out a commercial enterprise as a going concern.

40    In my view, it cannot be said that, taking all of the maters into account, the Commission in Court Session was in error in looking behind the corporate veil and determining that BCE was an agent of BRM. Indeed, in my view, that conclusion was inevitable.

151    One of the authorities to which reference was made in Branded Media Holdings was Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; (2011) 198 FCR 174. Ramsey Food Processing concerned the identification of the ‘true’ employer of certain employees within a group of companies. In that group, a labour hire company (Tempus) and Ramsey made an agreement for the hire of certain employees. As a consequence of that arrangement, Tempus was the employer of record, but the services were provided to Ramsey under its instruction and direction. Buchanan J made findings (summarised at [2] – [3]) to the effect that the interposition of Tempus was a sham and that the ‘true’ employer was Ramsey. Buchanan J discussed the applicable principles that generally apply when determining the identity of the ‘employer’ (at [44] – [74]) and the application of those principles within a company group where there may be ‘shell’ companies that are, in effect, the employer of employees as agent for another company in the group which is the ‘true’ employer (at [75] – [92]). It is evident from his Honour’s description of the legal principles and his analysis of the facts of that case that Buchanan J directed his attention and inquiry to the ‘substance and reality’ of the arrangements within the corporate group.

152    As Bromberg J observes, the approach taken in Ramsey Food Processing and other authorities such as Branded Media Holdings referred to above, may need to be revisited in light of the recent High Court authorities to which his Honour has made reference. For example, in WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 (at [37], [66], [67]), the High Court expressly rejected approaching an assessment of the character of an employment relationship as casual or otherwise by reference to the ‘conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship’ (at [37]) which was described in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 (at [180]-[181]) as the ‘settled approach’ to the question of whether a person was an employee as distinct from an independent contractor. Otherwise, as Bromberg J observes, in each of Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603 and Rossato, the High Court placed emphasis on the primacy of written contracts, the validity of which is not in dispute, as the source for identifying the terms of the ‘employment’ contract and the nature of the ‘employment’ relationship between the parties to that contract.

153    Nonetheless, for the purposes of s 31A of the FCA Act and assessing if there are reasonable prospects of successfully prosecuting a claim, I do not regard the recent High Court authorities as precluding a party from advancing a claim, based upon the facts of that party’s particular case, to the effect that the ‘true’ employer within a corporate group is not the company identified in the group’s corporate records as the nominal employer. Nor do I regard the recent authorities as precluding a claim, in accordance with established legal principles, that the ‘corporate veil’ of the group should be disregarded because the relevant corporate group arrangement is a sham or that the nominal group employer is employer, as agent, for another company within the group, as principal.

154    Each of the authorities upon which Mr Revill relies are examples of decisions that apply facts, as found, to established legal principles of broader application than purely employment relationships. These decisions illustrate that before a court (or other tribunal) is justified in reaching the conclusion that an employer of record is not the true employer there must be facts demonstrating that another entity is the true employer and that the employer of record is agent of the true employer or other circumstances exist that would make it inequitable not to treat the other entity as the true employer.

155    It is necessary for Mr Revill to demonstrate that the primary judge was, or may have been, in error for failing to conclude that Mr Revill has reasonable prospects of demonstrating that in reality JH Group was his employer or that JH Group was his employer and JHPL was JH Group’s mere agent for that purpose. Mr Revill must be able to point to material facts, and evidence of material facts, capable of giving rise to a reasonable argument of that practical reality or agency.

Question of fact

156    Mr Revill’s submission, as augmented by the minute of proposed further substituted statement of claim, identify the following matters of fact in support of his submission that the primary judge erred in his findings relating to JH Group as employer.

(a)    JH Group owes 100% of the shares in JHPL.

(b)    JH Group controls JHPL through ownership of its shares and common directors.

(c)    All correspondence with Mr Revill concerning his claim under cl 14 of the Wheatstone Agreement was in the name of JH Group.

(d)    JH Group was the ‘head and brain’ of JHPL.

(e)    For the period 31 March 2012 to 31 March 2013 JH Group used its subsidiaries to divide employees into staff (JH Group) and workforce (JHPL), however, all employees whether staff or workforce were required to act in accordance with the directions from JH Group and observe certain codes of conduct directed by JH Group.

(f)    JHPL has no website, external marketing or promotion of any nature. JH Group has the only website.

157    The minute of proposed further substituted statement of claim do not take the allegations significantly further. The key material fact proposed to be pleaded is that ‘[a]t all material times, [JH Group] had practical and real control over the affairs of [JHPL] and [JHG Mutual]’. No proposed particulars are given in support of that proposed allegation.

158    As to ownership and control, it was not in dispute that JHPL is a subsidiary of JH Group and there are common directors. Mr Revill also relied on what he submitted were concessions in the affidavit of Ms Ward (at [2]-[6] and [10]). The evidence in Ms Ward’s affidavit is to the following effect.

(a)    JH Group is an infrastructure and services provider with its main operations in infrastructure, rail and building across Australia, New Zealand and South East Asia.

(b)    JHPL is a wholly owned subsidiary of JH Group.

(c)    JHG Mutual is an unlisted public company limited by guarantee.

(d)    The ultimate holding company of each of JH Group, JHG Mutual and JHPL is China Communications Construction Company Limited, an infrastructure construction company.

(e)    Every document which provides for, constitutes or records (or which purports to do so) the identity of Mr Revill's employer referable to the performance of his work at the Wheatstone Project in Western Australia in 2013, including all of his payslips and the letter terminating his employment, records or identifies JHPL as the employer, with the exception of one document.

(f)    The one exception is a document entitled ‘Employee Registration Application for Western Australia’ Mr Revill completed (in handwriting) that is signed and dated 4 April 2013. In that document, Mr Revill’s ‘Current employer’ is identified as ‘John Holland Group’.

159    The facts referred to in subparagraphs (a) – (d) above do not take the matter any further than Mr Revill’s submission to the effect that JH Group owns 100% of the shares in JHPL and controls it through share ownership and common directors. It is evident that JH Group has legal and practical control of JHPL as its subsidiary. However, control of that nature does not mean that the subsidiary is agent of the parent or that employees of the subsidiary are employees of the parent. It does not support an inference or submission that, through ownership and common directors, JH Group ‘is the head and brain’ of JHPL or that the business of JHPL is not a separate business of that company.

160    The facts referred to in subparagraph (e) support the conclusion that JHPL was Mr Revill’s employer, not JH Group. In any event, the facts do not support a conclusion that any entity other than JHPL was Mr Revill’s employer.

161    The document referred to in subparagraph (f), the employee registration application, is of no moment as it was completed by Mr Revill. Therefore, it only reflects his subjective state of mind at the time he was employed. It is not objective evidence of the identity of his employer.

162    As to the communication concerning Mr Revill’s claim for benefits under cl 14 of the Wheatstone Agreement, there was evidence before the primary judge that Regis represented in its communications with Mr Revill that it acted for and on behalf of JH Group. That is, there was evidence that Regis acted as agent for JH Group in its dealings with Mr Revill. However, I agree with the primary judge’s observations about the significance of these documents (SJR at [48]) to the effect that it was quite clear that the correspondence came from Regis (the claim manager JHG Mutual had appointed) to advise, amongst others, JHPL and JH Group.

163    It can be inferred from Regis acting as agent of JH Group that JH Group had made a claim under a policy of insurance with JHG Mutual. Further, that such a claim was made as the ‘employer’ of Mr Revill under that policy. Such an inference may support a conclusion that under the arrangements within the John Holland corporate group JH Group was considered Mr Revill’s employer for the purposes of the applicable employee financial support plan (ESPL) and cl 14 of the Wheatstone Agreement. However, another available inference – that cannot be excluded and that is more probable – is that Regis and JH Group acted as agent for JHPL and (or) JHG Mutual in dealing with claims under the EFSP, in general, and cl 14 of the Wheatstone Agreement, in particular.

164    As to the ‘head and brain’ of JHPL, Mr Revill did not identify any evidence in support of that submission. As already noted, ownership and control is not sufficient, on its own, to result in a parent company being the alter ego of a subsidiary company. I have not been able to identify any evidence before the primary judge of this Court that supports the submission.

165    As to the division and direction of the workforce, Mr Revill relied, as he had before the primary judge, on the findings of fact made by the court in John Holland Group v Commissioner of Taxation. As the primary judge observed (SJR at [39]), evidence of a finding of fact in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding: s 91(1) of the Evidence Act 1995 (Cth). Therefore, the findings of fact upon which Mr Revill relies were not admissible before the primary judge and are of no assistance to this Court.

166    Even if the findings of fact in John Holland Group v Commissioner of Taxation were admissible before the primary judge, for essentially the same reasons as those given by the primary judge (SJR at [40]-[43]) none of the facts support Mr Revill’s submissions.

(1)    First, the decision concerned a large rail and construction maintenance business known as 'JH Rail' that was operated throughout Australia by the John Holland corporate group of companies. JH Group and JHPL were members of the John Holland corporate group. Therefore, the decision does not relate to the manner in which the business connected to the Wheatstone Project was structured.

(2)    Second, the facts found were that JHPL employed individuals designated as 'workforce' and they were employed pursuant to the 'John Holland Pty Ltd and RTBU-Rail Maintenance Agreement-2009-2012'. Other individuals known as ‘staff employees’ were employed by JH Group. Staff employees were not subject the 2009 rail agreement. Therefore, the decision does not relate to the Wheatstone Agreement and, in any event, the facts suggest that certain individuals were employed by JHPL, in its own right, pursuant to the terms of an applicable enterprise agreement.

(3)    Third, findings were made to the effect that the terms of employment of both workforce and staff employees required them to act in accordance with directions from 'John Holland' and to observe certain codes of conduct. The reasons for decision identified 'John Holland' as the John Holland corporate group of companies that were collectively referred to as 'John Holland'. That is, the findings concerning directions and codes of conduct is not a finding that workforce employees were subject to the direction of JH Group.

(4)    Fourth, the issue before the court and the findings made did not relate to the question of whether JH Group was the ‘true’ employer of ‘workforce’ employees.

(5)    Fifth, if anything, the findings of fact in the decision illustrate a genuine separation and division of companies and employees for the purposes of a business (JH Rail) conducted through various companies within the John Holland corporate group.

167    As to the website, marketing and promotion of JHPL, there was no evidence before the primary judge (SJR at [44]) and none before this Court to support the contention that JHPL does not have a website, any external marketing or promotion of any nature. Therefore, Mr Revill’s submissions in this respect were bare assertion.

168    None of the matters raised by Mr Revill in his application for leave to appeal identify that the primary judge made (or arguably made) any error of fact in reaching the conclusion that none of the evidence to which Mr Revill referred provided any reasonable basis to think that at trial he may be able to establish that JHPL employed Mr Revill as agent for JH Group, as principal and 'true' employer.

Question of law

169    The primary judge dealt briefly with further difficulties with Mr Revill’s case against JH Group. One of the difficulties the primary judge identified (SJR at [51]) was that, even if JH Group were considered to be his employer, Mr Revill would have to persuade the court that the reference in s 53(1) of the FW Act to an enterprise agreement being ‘expressed to cover (however described) … the employer’ encompasses JH Group, as employer, even though it is not named in the Wheatstone Agreement. The primary judge did not resolve that question one way or the other, but used it as a further illustration of the ‘incoherence of the case now sought to be put’. The ‘difficulty’ was a factor the primary judge took into account when reaching his ultimate conclusion that Mr Revill had no reasonable prospect of prosecuting the proceeding (SJR at [52], [54]).

170    On the application for leave to appeal, Mr Revill sought to overcome the incoherence by arguing that the term ‘employer’ as used in ss 52, 53 and 561 of the FW Act is not defined in a meaningful way and that it was reasonably arguable that the Wheatstone Agreement extended to and covered JH Group as the ‘true employer’ of Mr Revill. During his oral submissions, counsel for Mr Revill made an argument to the effect that even though the Wheatstone Agreement is expressed to cover JHPL it may cover JH Group as the ‘true employer’. That appears to be a submission to the effect that JHPL made the Wheatstone Agreement as agent for JH Group as principal.

171    Mr Revill has not demonstrated that the primary judge made (or arguably made) any error of law in considering that Mr Revill had no reasonable prospect of prosecuting the proceeding because, for amongst other reasons, he would have difficulty persuading the court that the Wheatstone Agreement covers JH Group even if JH Group were considered to be Mr Revill’s ‘true’ employer. In my view, Mr Revill would have little or no chance of so persuading the court because the Wheatstone Agreement is expressed to cover JHPL, was signed for JHPL and has force of law as an enterprise agreement covering JHPL by operation of the provisions of the FW Act.

172    The Wheatstone Agreement is a ‘greenfields agreement’ within the meaning of that expression in s 172(4) of the FW Act. It is a single-enterprise agreement made under s 172(2)(b). It was approved by the Fair Work Commission under s 186 in accordance with an application made pursuant to s 185.

173    Section 51(1) of the FW Act provides that an enterprise agreement does not impose obligations on a person, and the person does not contravene a term of an enterprise agreement, unless the agreement applies to the person. Section 52(1) provides that an enterprise agreement applies to an employer if:

(a)    the agreement is in operation; and

(b)    the agreement covers the employer; and

(c)    no other provision of the Act provides, or has the effect, that the agreement does not apply to the employer.

174    Section 53(1) provides that an enterprise agreement covers an employer if the agreement is expressed to cover (however described) the employer. Section 54(1) provides that an enterprise agreement approved by the Fair Work Commission operates from seven days after the agreement is approved or if a later date is specified in the agreement, that later day.

175    The Wheatstone Agreement was approved and operated from 5 September 2012 with a nominal expiry date of 29 August 2016. Accordingly, in accordance with s 52(1)(a), the Wheatstone Agreement was in operation at the time Mr Revill was employed.

176    Section 172 of the FW Act provides (emphasis added):

172    Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1)    An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a)    matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b)    matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(c)    deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d)    how the agreement will operate.

Note 1:    For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2:    An employee organisation that was a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement will be covered by the agreement if the organisation notifies the FWC under section 183 that it wants to be covered.

Single-enterprise agreements

(2)    An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a)    with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b)    with one or more relevant employee organisations if:

(i)    the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii)    the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:    The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

…

Greenfields agreements

(4)    A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

(5)    Two or more employers are single interest employers if:

(a)    the employers are engaged in a joint venture or common enterprise; or

(b)    the employers are related bodies corporate; or

(c)    the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

…

177    Section 177(a) provides that an employer that would be covered by the agreement is a bargaining representative for a proposed single-enterprise agreement that is a greenfields agreement. Section 182(3) provides that a greenfields agreement is made when it has been signed by ‘each employer’ and each relevant employee organisation ‘that the agreement is expressed to cover’ (which need not be all of the relevant employee organisations for the agreement).

178    Accordingly, a single-enterprise greenfields agreement may be made with two or more employers that are single interest employers if the employers are, amongst other things, related bodies corporate. However, such an enterprise agreement is not made until each employer that the agreement is expressed to cover has been signed by that employer. And, an enterprise agreement is an agreement that pertains to the relationship between the employer covered by the agreement and employee organisations.

179    Clause 2 of the Wheatstone Agreement is in the following terms: Part C 295:

2.    PARTIES AND PERSONS BOUND

This Agreement shall be binding upon:

•    John Holland Pty Ltd (“the Company”); and

•    Employees of the Company employed in the classifications set out in Clause 9 of this Agreement and performing work falling within the Application of this Agreement; and

•    The Australian Workers' Union.

180    The Wheatstone Agreement is signed by Leon Izmiritlian as person authorised by the 'Company' to sign the agreement on its behalf. The Wheatstone Agreement is not signed by or on behalf of JH Group. The agreement is not expressed to be binding upon JH Group. JH Group is not mentioned anywhere in the agreement. Clause 14 of the agreement places an obligation on the 'Company'. The Company is defined as JHPL.

181    The Wheatstone Agreement was an enterprise agreement made in accordance with the FW Act that was approved by the Fair Work Commission under s 186 of that Act. It was an agreement that in its terms was binding on JHPL and not JH Group. It was an agreement that was expressed to cover JHPL as employer and no other related company. Mr Revill has not demonstrated that the primary judge made, or arguably made, any error of law.

Leave to appeal on ground 3 should be refused

182    Proposed ground 3 does not identify any arguable error of fact or law. Mr Revill’s submissions on the application did not otherwise demonstrate any arguable error. In short, there is not any real doubt about the correctness of the primary judge's decision. Accordingly, leave to appeal on proposed ground 3 should be refused.

PROPOSED GROUND 4

183    From at least the time that Mr Revill filed the substituted statement of claim on 20 November 2020 the proceedings were founded, at least in part, on an asserted cause of action against JH Group for contravention of s 50 of the FW Act.

184    Section 570 of the FW Act provides (notes excluded):

570    Costs only if proceedings instituted vexatiously etc.

(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.

(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.

185    The primary judge found that Mr Revill instituted the proceedings against JH Group without reasonable cause and, therefore, the discretion to order costs under s 570(2)(a) of the FW Act had arisen (CR at [19]-[20]). Having found that that discretion to award costs was enlivened, the primary judge exercised that discretion in favour of JH Group and ordered that Mr Revill pay its costs (CR at [21]-[24]).

186    The primary judge set out the applicable principles as to what is meant in s 570(2)(a) of the FW Act by instituting a proceeding 'without cause' (CR at [6]). Mr Revill does not assert there was any error in the primary judge's reasoning in reaching that conclusion.

187    Mr Revill's written submissions assert that, as set out in the minute of proposed further substituted statement of claim, he had (and always has had):

… more than an arguable case against [JH Group]. The only development in recent times has been the better articulation of his case, including the ability to continue the proceedings against [JH Group] pursuant to s 550 of the FWA.

188    As to the assertion that s 550 provides a basis for concluding that Mr Revill had an arguable claim against JH Group, the primary judge said (CR at [12]-[13]):

12    The first of these submissions at least presents an intelligible reason why a court might conclude that JH Group was liable for any contravention of the EA by JHPL, if the factual foundation for that claim were established. But Mr Revill did not plead that JH Group was liable under s 550 of the Fair Work Act at the beginning of the proceeding or at any time thereafter (nor was that advanced in the summary judgment application). To the contrary, by the time he did come to invoke s 50 of the Fair Work Act (in a substituted statement of claim filed on 20 November 2020) he pleaded that JH Group (alternatively JHPL) was the employer and that JH Group was the company that breached s 50. So it may be doubted that the proceeding that was instituted was the one for which, it is said, these facts provided reasonable cause.

13    In any event, the assessment of whether a party instituted a proceeding with reasonable cause is one that must be made on the basis of the facts apparent to the applicant at the time of commencing the proceeding: Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264 (Wilcox J), approved in Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; (2014) 145 ALD 548 at [9]. There was no evidence that either of items (3) or (4) above were apparent to Mr Revill or his solicitors in August 2019 when this proceeding was commenced. Given that he never pleaded a case of involvement under s 550, it may be inferred that they were not.

189    No arguable error is identified in the primary judge's reasons in those paragraphs. It follows that the principal ground upon which Mr Revill submits that the primary judge was in error does not disclose any real doubt that the primary judge was correct in his conclusion that the discretion to award costs under s 570(2)(a) of the FW Act had arisen.

190    The discretion having arisen, the proposed ground of appeal would need to assert and identify an error in the exercise of a discretion of the character referred to in House v The King at 504-505. It is not enough that the appellate court considers that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. Namely, the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, made a mistake as to the facts, has failed to take into account some material consideration, then the decision should be reviewed and the appellate court may exercise its own discretion in substitution for the primary judge's if it has the materials for so doing. No error of any of these characters is identified in proposed ground 4 or Mr Revill's written submissions in support of his application for leave to appeal. The application for leave to appeal on proposed ground 4 should also be refused.

COSTS OF THE APPLICATION

191    Pursuant to s 43(1), the Court has jurisdiction to award costs in all proceedings before the Court subject to s 570 of the FW Act. Pursuant to s 43(3)(f), without limiting the discretion of the Court in relation to costs, the Court may order a party's lawyer to bear costs personally.

192    As noted earlier in these reasons, pursuant to s 570 of the FW Act a party may be ordered to pay the costs of a proceeding (including an appeal) if the Court is satisfied that the party instituted the proceedings without reasonable cause. It follows from what has been said regarding the absence of merit in Mr Revill's application for leave to appeal that the Court may be satisfied that Mr Revill instituted the proceedings without reasonable cause. Accordingly, the parties should be given an opportunity to make submissions on the question of the costs of the application for leave to appeal and the application for the Court to receive further evidence in any appeal. Otherwise, the question of costs should be reserved.

CONCLUSION

193    The application for leave to appeal should be refused. The application for the Court to receive further evidence in any appeal should be dismissed. The parties should be given an opportunity to make submissions as to the appropriate order for costs, if any, on the applications. Costs should be reserved.

Associate:

Dated:    8 November 2022