Federal Court of Australia

Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    On or before 19 May 2023 the second respondent file and serve any evidence and written submissions (limited to 3 pages) on which he proposes to rely on the question of costs.

3.    On or before 2 June 2023, the appellant file and serve any evidence and written submissions (limited to 3 pages) on which he proposes to rely on the question of costs.

4.    On or before 16 June 2023, the second respondent file and serve any evidence and written submissions (limited to 2 pages) in reply on the question of costs.

5.    The question of costs be determined on the papers and without an oral hearing.

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

REASONS FOR JUDGMENT

THE COURT

A.    INTRODUCTION and overview

1    This is an appeal from the decision of the primary judge in Dahdah v Platinum Distributors Australia Pty Ltd (No 2) [2022] FCA 416 (J). The primary judge dismissed claims by the appellant that the second respondent was liable to the appellant for the second respondent’s involvement in contraventions of the Fair Work Act 2009 (Cth) by the first respondent, Platinum Distributors Australia Pty Ltd, a company controlled by the second respondent and which had formerly employed the appellant.

2    In these reasons, we adopt the approach taken by the primary judge of identifying various members of the Dahdah family by their first names. We do so for convenience and without intending any disrespect. We will also refer to the second respondent as the respondent.

3    At the hearing of the appeal, the appellant was self-represented. He sought an adjournment of the hearing of the appeal, which we refused for the reasons set out at [165] to [173] below. In determining the appeal, the Court has had the benefit of written submissions prepared by counsel who had previously represented the appellant and written submissions prepared by counsel for the respondent.

4    The appeal concerns the primary judge’s findings on three issues.

The first issue

5    The first and central issue for determination by the primary judge was whether the appellant’s employment by Platinum ended on 26 June 2015 as a result of a conversation of that date between the appellant and the respondent (26 June 2015 conversation) as the respondent contended, or continued past that date and until October 2017 (as the appellant contended).

6    The primary judge found that the appellant’s employment ended as a result of the 26 June 2015 conversation. He reached that finding by: accepting the evidence of two other participants in that conversation as to what was said; relying upon minutes of a meeting between the respondent and his accountant on 30 June 2015 (30 June 2015 minutes) which record the respondent’s statement that the appellant had resigned; accepting the evidence of John (the appellant’s uncle and the respondent’s father), that during a conversation with the appellant on 5 July 2015 (5 July 2015 conversation) the appellant asked John for employment with John’s company Veejay Pty Ltd and that the appellant thereafter worked for Veejay; and finding that group certificates for the 2016 and 2017 financial years (2016 and 2017 group certificates) – which suggested that the appellant was in the employ of Platinum during those financial years – were false documents which the respondent caused to be prepared because of a request of the appellant, his sister (Jousephine) and niece (Jouliana) made during a family meeting on 13 September 2017 (13 September 2017 family meeting) so as to assist the appellant to satisfy a condition of his visa and thereby assist in his application for permanent residency in Australia.

7    These key findings were squarely based upon the primary judge’s views as to the credit of the appellant, the respondent and various witnesses. The primary judge was not prepared to accept the evidence of the appellant or the respondent without corroboration. He did not rely upon their uncorroborated evidence and made his findings: (1) as to the 26 June 2015 conversation upon his acceptance of the evidence of two other witnesses, Mr Boustany and Mr Atie; (2) as to the 5 July 2015 conversation on his acceptance of John’s evidence; and (3) as to the 2016 and 2017 group certificates upon the evidence of Jousephine and Jouliana.

8    On this appeal, the appellant challenges the primary judge’s finding that his employment ended as a result of the 26 June 2015 conversation. In view of the central role played by credit findings in the primary judge’s reasoning, the appellant must persuade this Court that the primary judge’s finding was wrong because it was contrary to incontrovertible facts or uncontradicted testimony, or that it was glaringly improbable, or contrary to compelling inferences.

9    The appellant seeks to do so principally by pointing to other evidence capable, he contends, of supporting a contrary finding. As the Full Court of this Court (Kenny, Tracy and Jagot JJ) explained in Yousif v Commonwealth Bank of Australia [2010] FCAFC 8; (2010) 193 IR 212 at [34], findings of fact which are the product of an advantage enjoyed by the primary judge such as findings based upon the primary judge’s view as to the credit of witnesses are not to be set aside upon the mere identification of evidence which, if accepted, would be capable of supporting contrary findings. Rather, the evidence must be such that the primary judge’s finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences: Yousif at [33]. See also Fox v Perry [2003] HCA 22; (2003) 214 CLR 118 at 128 [28] to [29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at 148 to 149 [55] (Bell, Gageler, Nettle and Edelman JJ); Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; (2020) 278 FCR 1 at 119 to 123 [403] to [411] (Bromwich, O’Callaghan and Wheelahan JJ); Murphy v Chapple [2022] FCAFC 165 at [26] (Jagot, Banks-Smith and Jackson JJ); and Frigger v Trenfield (No 3) [2023] FCAFC 49 at [141] (Allsop CJ, Anderson and Feutrill JJ).

10    None of the evidence relied upon by the appellant approaches the requisite level of persuasion. A further obstacle to a conclusion that the primary judge’s finding should be set aside is the 30 June 2015 minutes, which provide near contemporaneous documentary evidence consistent with the primary judge’s finding, and are not impugned by the appellant.

The second issue

11    The second issue for determination by the primary judge was whether, between 5 July 2015 and October 2016 the appellant was employed by Veejay (as the respondent contended); or by Platinum on secondment to Veejay (as the appellant contended). The primary judge found that the appellant was employed by Veejay. This finding was also based upon credit findings, namely the primary judge’s acceptance of John’s evidence and his refusal to accept the appellant’s evidence absent corroboration. Again, the challenge to this finding is based principally upon the existence of other evidence which the appellant contends is capable of supporting a contrary finding and again it falls well short of the requisite level.

12    The appellant also submitted that the primary judge failed to deal with particular evidence. Whilst a court may, in some circumstances, err by overlooking or failing to deal with evidence, there is no absolute duty to deal with particular evidence and for an error to arise the evidence in question must be of such significance that unless disposed of it stands in the way of the court’s conclusions: see Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284 at 290 to 291 [20] (Rangiah and Downes JJ) and the authorities there cited, especially Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189;  (2002) 6 VR 1 at 43 [157] (Charles, Buchanan and Chernov JJA). See also Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 at 346 [82] (Greenwood, Besanko and Rangiah JJ) and BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARD #2) [2018] FCAFC 8; (2018) 258 FCR 521 at 546 [103] (North, Dowsett and Jagot JJ).

13    None of the evidence identified by the appellant is of such significance that the primary judge was required to expressly deal with it in his reasons, such evidence being, at its highest, merely capable of supporting a conclusion that between 5 July 2015 and October 2016 the appellant continued to be employed by Platinum.

The third issue

14    The third issue for determination by the primary judge was whether prior to 26 June 2015, Platinum paid the appellant all of the wages due to him. The primary judge found that the appellant had not proven that there was a shortfall in the wages paid by Platinum. In reaching that finding, the primary judge took into account a tax return (2015 tax return) and a notice of assessment (2015 notice of assessment) for the appellant for the financial year ending 30 June 2015, which suggested that such wages had been paid. There was no error in his Honour’s approach in circumstances where he had formed the view that the appellant’s evidence should not be accepted absent corroboration; there was no corroborative evidence; and the 2015 tax return and 2015 notice of assessment were contemporaneous documents directly contrary to the appellant’s case.

15    Thus the appeal must fail and it is unnecessary to consider the respondent’s notice of contention.

B.    the salient facts as found by the primary judge

16    The salient facts found by the primary judge are set out below.

17    The appellant is a citizen of Lebanon and a first cousin of the respondent. The respondent was the sole shareholder and director of Platinum, until its deregistration on 23 January 2019. Platinum operated a business of importing and exporting goods, from premises in Yennora in Sydney.

18    On 2 February 2014, the appellant and Platinum entered into a written employment contract pursuant to which the appellant was to be employed by Platinum in Australia as an “export co-ordinator” for an annual wage of $97,500.

19    On 14 October 2014, the Department of Home Affairs sent the appellant a letter stating that visa applications for the appellant and his family had been approved. The letter provided that if the appellant were to stop working for his sponsor (Platinum) then he would be required to find another employer willing to nominate him, apply for another type of substantive visa, or leave Australia.

20    On 14 January 2015, the appellant arrived in Australia and on 17 February 2015, he commenced work with Platinum at its Yennora premises.

21    On 26 June 2015, and during the 26 June 2015 conversation, the appellant resigned from or abandoned his employment with Platinum in order to purchase a truck and to work for himself. The primary judge found that the conversation occurred in the manner recounted by the respondent, namely that:

(1)    in the days prior to 26 June 2015, the appellant approached the respondent and said that he had a friend who had a truck that he wanted to sell and that the friend had work for him to do. They had a conversation to the following effect:

Appellant:    … a friend of mine has a truck he wants to sell, and I want to buy it.

Respondent:    What do you mean?

Appellant:    I have a friend who is selling his truck and he has work for me.

Respondent:    … you can’t buy a truck. You are working for me.

Appellant:    OK, we will talk.

(2)    there was a conversation on 26 June 2015 in which the appellant, the respondent and Mr Boustany (a friend of the respondent) participated, and which included the following exchange:

(3)    Mr Boustany then left the conversation and the appellant and the respondent continued to converse, discussing the type of truck for sale, its cost, the earning rate per load and its potential, during which the respondent suggested that the appellant would be better off continuing to work at Platinum; and

(4)    the conversation concluded as follows:

22    The primary judge also accepted the evidence of Mr Boustany and Mr Atie, a motor mechanic who leased part of his premises at Yennora to Platinum, concerning the 26 June 2015 conversation.

23    Mr Boustany gave evidence that:

(1)    in January 2015, the respondent introduced him to the appellant and he subsequently saw the appellant regularly at Platinum’s premises and conversed with him;

(2)    on about 26 June 2015, Mr Boustany visited Platinum’s premises to see the respondent and had a brief conversation with the appellant who informed him that he wished to buy a truck in order to work for himself. Mr Boustany replied that the appellant’s visa required the appellant to work for Platinum and that the appellant could not raise the money to pay for the truck. The conversation continued:

(3)    soon after, the respondent joined the conversation and told the appellant that he was not allowed to buy a truck or to start a business because of the terms of his visa.

24    Mr Atie gave evidence that:

(1)    his mechanic shop was in the same location as Platinum’s premises;

(2)    he was introduced to the appellant after the appellant arrived in Australia and he regularly saw the appellant at Platinum’s premises;

(3)    in late June 2015 he heard a loud argument between the appellant and the respondent coming from Platinum’s premises and upon walking to those premises heard:

(a)    the respondent say to the appellant that the appellant could not work for someone else because his visa was attached to Platinum;

(b)    the appellant question why he could not; and

(c)    the appellant say: “I don’t want to miss out on the truck. I already told him I will buy it”;

(4)    some days later he asked the respondent what happened with the appellant, to which the respondent responded: “Well he insisted on going ahead with the truck, so I told him to fuck off”; and

(5)    thereafter, Mr Atie ceased to see the appellant regularly at Platinum’s premises.

25    On 30 June 2015, the respondent and his accountant met. The 30 June 2015 minutes, which are a record of that meeting, include: “[The respondent] confirmed that [the appellant] resigned to buy a truck and contract on his own”.

26    On 5 July 2015, during the 5 July 2015 conversation the appellant said to John: “I am finding it difficult working. Is there room for me?”, to which John responded: “Yes, there is if you can drive the truck and do some labouring”.

27    Following that conversation the appellant immediately began to work for Veejay.

28    From 5 July 2015 until October 2016, the appellant worked as a labourer for Veejay. During that period the appellant was engaged by Veejay and was not (as the appellant had contended) an employee of Platinum who had been placed by Platinum with Veejay pursuant to a secondment.

29    Prior to 15 June 2016, the 2015 taxation return was prepared for the appellant. On 15 June 2016, the Australian Taxation Office issued the 2015 tax assessment. The 2015 tax assessment recorded that the appellant had taxable income of $44,600 and was entitled to a refund of $6,398. On 21 June 2016, the tax refund of $6,398 was paid by the Australian Taxation Office into the respondent’s bank account.

30    On 13 September 2017, the 13 September 2017 family meeting was held. It was convened by Jousephine at her home, and attended by Jousephine and her husband; her daughter Jouliana and her husband; the appellant and his wife; and the respondent. At that meeting, the respondent was asked to produce group certificates for Platinum in respect of the appellant, for the financial years ending 30 June 2016 and 30 June 2017 regardless of whether or not Platinum had been the employer of the appellant during those years; and was asked to do so because the appellant, Jousephine and Jouliana considered such group certificates to be important for the appellant’s application for permanent residency in Australia.

31    Following that meeting, the respondent asked Platinum’s accountant to produce the 2016 and 2017 group certificates and this occurred. The 2016 and 2017 group certificates are undated PAYG summaries for the years ending 30 June 2016 and 30 June 2017 respectively, signed by the respondent, and which describe:

(1)    Platinum as the payer and the appellant as the payee, with his tax file number noted;

(2)    the periods of payment as 1 July 2015 until 30 June 2016 and 1 July 2016 until 30 June 2017 respectively; and

(3)    payments made of:

(a)    $97,500 with $26,004 tax withheld for the year ending 30 June 2016; and

(b)    $40,625 with $10,783 tax withheld for the year ending 30 June 2017.

C.    an overview of the reasoning of the primary judge

The appellant’s claim

32    The appellant’s claim before the primary judge was for the payment of wages and other entitlements for the period from 17 February 2015 until October 2017 on the basis that he worked for Platinum:

(1)    directly, from 17 February 2015 until late June or early July 2015;

(2)    on secondment to Veejay where he performed his work, from late June or early July 2015 until 17 October 2016; and

(3)    directly, in that he was available to perform work, from 17 October 2016 until October 2017.

33    As Platinum was deregistered on 23 January 2019, the appellant’s claim was brought against the respondent on the basis that he was involved, within the meaning of s 550 of the Act, in various contraventions of the Act by Platinum.

The essential reasoning

34    At the core of the primary judge’s reasoning was his finding that the appellant resigned from or abandoned his employment with Platinum on or about 26 June 2015 because he accepted the respondent’s account, and rejected the appellant’s denial, of the 26 June 2015 conversation. The primary judge did so because he did not accept the evidence of the appellant or the respondent without corroboration and the respondent’s account was:

(1)    supported by the evidence of Mr Boustany and Mr Atie; and

(2)    consistent with and supported by:

(a)    the 30 June 2015 minutes, a contemporaneous document; and

(b)    the 5 July 2015 conversation, in respect of which the primary judge accepted John’s version of the conversation over the appellant’s denial.

35    The primary judge found that the evidence given by Mr Boustany and Mr Atie was not shaken in cross-examination and he accepted it. At J[202] and [218], the primary judge explained:

202.     I am satisfied that on or about 26 June 2015 the [appellant] indicated to the respondent that he intended to purchase a truck and start his own business operating it, in accordance with the respondent’s recollection of the conversation. In this regard the version of events told by the respondent is supported by the independent evidence of Mr Boustany and Mr Atie and indirectly supported by the chronology of events in relation to the secondment, to which I have referred to in section 7.2. As I have explained in section 7.1, Mr Boustany and Mr Atie recalled being present when the [appellant] informed the respondent of his interest, indeed determination, to buy a truck and to leave Platinum to start his own business. Their evidence was not shaken in cross examination and I accept it. It is supported by the contemporaneous record in the form of Platinum’s June 2015 minutes. It is also indirectly supported by John’s evidence of his conversation with the [appellant] on 5 July 2015.

…

218.     The evidence of the respondent, Mr Boustany and Mr Atie indicates that the [appellant] conveyed his intention to acquire at [sic] truck and commence his own business…

36    The reference in J[202] to “Platinum’s June 2015 minutes” is a reference to the 30 June 2015 minutes.

37    The reference in J[202] to “John’s evidence of his conversation with the [appellant] on 5 July 2015” is a reference to the primary judge’s finding concerning the 5 July 2015 conversation. The primary judge noted that John’s evidence was unshaken during the course of cross-examination and he accepted it as evidence that broadly supported the evidence given to the effect that at the end of June 2015 the appellant had communicated an intention to no longer continue working for Platinum.

38    After considering the 26 June 2015 conversation, the 30 June 2015 minutes, the 5 July 2015 conversation and the fact that the appellant began to work for Veejay immediately after that conversation, the primary judge explained at J[221]:

Whilst taken alone it might be regarded that the conversation between the [appellant] and the respondent on 26 June 2015 did not amount to a conclusive expression of resignation or abandonment, the events that followed demonstrate that indeed that was the [appellant’s] intention. ...

39    The primary judge also found that from about 5 July 2015, the appellant was engaged to work for Veejay and not for Platinum because:

(1)    of the 5 July 2015 conversation which the primary judge found occurred in the terms recounted by John (and denied by the appellant);

(2)    he found that John paid the appellant directly and in cash for that work; and

(3)    various documents relied upon by the appellant to demonstrate that the appellant continued to be employed by Platinum lacked sufficient cogency to allow the primary judge to draw the conclusion sought by the appellant.

The primary judge’s ultimate conclusion and some troubling matters

40    The primary judge’s ultimate conclusion was expressed at J[227]:

In the result, the conclusion that I reach is that the [appellant] has not made out his case that he worked for Platinum for the period from 27 June 2015 until 1 October 2017. I accept that he left the employment of Platinum on about 26 June 2015.

41    Prior to reaching that conclusion, the primary judge addressed three aspects of the case that he described as “particularly troubling”.

42    The first aspect was described by the primary judge as the inherent improbability that a person in the position of the appellant would leave his life in Lebanon and come to Australia to work at Platinum, only to abandon that employment a few months later. His Honour addressed that concern as follows:

223.     …On one level it does not seem like rational behaviour. The [appellant] as a recent arrival to Australia was naïve as to local laws and to a large extent in the hands of the respondent. It would be a rash thing for one in his position to take such a course.

224.     However, after observing the [appellant] in the witness box and considering his evidence closely, in my view he was capable of making impulsive and irrational decisions if he considered that they would be to his benefit. The fact that he behaved in a way that may appear objectively to be irrational does not persuade me that he was being truthful in denying, in the face of the other evidence to which I have referred, the 26 June 2015 conversation or in presenting the alternative version of events that he has advanced in relation to his work at Veejay, or the events that happened thereafter.

43    The second aspect of the case that troubled the primary judge was that within ten days of the 26 June 2015 conversation concerning the appellant’s intention to buy a truck and to work for himself, the appellant (on 5 July 2015) asked John for work at Veejay. His Honour addressed that concern as follows:

225.    … On one view that might indicate that he never had an intention to acquire a truck and that the version offered by the respondent is false. However, I prefer to rely on the objective factors to which I have referred. It is entirely possible that the [appellant] changed his mind after the respondent refused to provide his support (including financial support) for buying the truck and instead decided to chance his arm working for John.

44    The third aspect of the case that troubled the primary judge was the existence of the 2016 and 2017 group certificates, which tended to support the appellant’s version of events. His Honour addressed that concern as follows:

226.     These are indeed troubling in the context of the narrative provided by the respondent. However, for the reasons set out in more detail in section 7.4 above, I am satisfied that those documents are, as the respondent contends, false. I am satisfied that in September 2017 there was a lengthy family meeting at which the [appellant], Jousephine and Jouliana urged the respondent to produce the 2016 and 2017 group certificates to assist the [appellant] in his application for permanent residency and that the respondent agreed to comply. As I have noted, I reject as false the respondent’s evidence that at that meeting the [appellant] threatened to kill him. In my assessment the respondent is a person who is prepared to bend the truth to meet the expediency of his own interests, and at that point he considered it was more convenient to lie to the ATO than to disappoint his family.

The role of credit in the primary judge’s findings

45    The primary judge’s views as to the credit of various witnesses was central to all of the findings under challenge in this appeal.

46    The primary judge indicated that he was not prepared to accept either the appellant or the respondent as a witness of truth, absent corroboration of their evidence. After noting at J[88] that he had serious reservations as to the reliability of the evidence of each of the appellant and the respondent, the primary judge undertook a detailed consideration of their credit (J[89] to [109]). The primary judge concluded that:

(1)    he found it difficult to accept the appellant’s evidence as truthful unless it was supported by corroborating material; and that the appellant was a person who had demonstrated a preparedness to tell different stories of the same events, often with significantly varied details; and

(2)    the respondent had been prepared to take a cavalier attitude to the truth in his general conduct, including in the lodgement of formal documents to government entities; and that having regard to the totality of the evidence given by the respondent, his evidence should be treated with considerable caution and only accepted when corroborated by other witnesses, supported by documents or otherwise supported as inherently likely.

47    At J[200], the primary judge reiterated his caution in accepting either the appellant’s or the respondent’s evidence without the support of material from third party sources. At J[226] the primary judge found that the respondent is a person prepared to bend the truth to meet the expediency of his own interests.

48    In contrast, the primary judge accepted as truthful the evidence of other witnesses, and in particular the evidence of Mr Boustany, Mr Atie, John, Jousephine and Jouliana.

49    The primary judge’s findings as to credit were an important factor in his reasoning to the central conclusions discussed at [34], [39], [42] and [44] above. In particular:

(1)    the finding that the appellant left or abandoned his employment on or about 26 June 2015 was based to a large extent upon:

(a)    his unpreparedness to accept the appellant’s evidence (and in particular his denial of the conversation) absent corroborative evidence;

(b)    his acceptance of the evidence of Mr Boustany and Mr Atie;

(c)    his acceptance of John’s version and rejection of the appellant’s version of the 5 July 2015 conversation;

(d)    the view that he formed that the appellant was capable of making impulsive and irrational decisions if he considered that they would be to his benefit;

(2)    the finding that from 5 July 2015 the appellant was engaged by Veejay and not by Platinum was based largely upon:

(a)    his acceptance of John’s version and rejection of the appellant’s version of the 5 July 2015 conversation;

(b)    his acceptance of John’s evidence that he paid the appellant directly (and in cash), and that the respondent did not supervise the appellant’s work at Veejay; and

(3)    his finding that the 2016 and 2017 group certificates were false documents, which in turn was based on his acceptance of the evidence of Jousephine and Jouliana.

D.    The first and second issues – GROUNDS of appeal 1 TO 5 AND 7 TO 8

50    The primary case on appeal is that the primary judge erred in his findings as to the first and second issues. Seven of the eight grounds of appeal are directed to these findings.

Ground 1: Resignation – 26 June 2015 conversation

51    The first ground of appeal (ground 1) is expressed in the notice of appeal as:

The learned judge erred in finding that the Appellant left the employment of Platinum on about 26 June 2015: Decision at [227]. The Appellant’s representations in the evidence of conversation between the Appellant and Respondent on 26 June 2015 [123]-[126] does not reveal unambiguous words or conduct amounting to a repudiation of the contract of employment.

52    The finding at J[227] was:

In the result, the conclusion that I reach is that the [appellant] has not made out his case that he worked for Platinum for the period from 27 June 2015 until 1 October 2017. I accept that he left the employment of Platinum on about 26 June 2015.

53    The conversation set out at J[123] to [126] is reproduced at [21] above.

54    The appellant’s submissions contend that the primary judge erred in:

(1)    failing to find that the appellant did not abandon his employment with Platinum, after finding that the 26 June 2015 conversation “did not amount to a conclusive expression of resignation or abandonment” (ground 1 – first error); and

(2)    relying upon the events that followed, and which were referred to at J[220] to [221], to find that the appellant left the employ of Platinum in circumstances where that finding is contrary to the respondent’s affidavit evidence and evidence adduced under cross-examination (ground 1 – second error).

Ground 1 – first error

55    The appellant submitted that, having found at J[221] (see [38] above) that the 26 June 2015 conversation “did not amount to a conclusive expression of resignation or abandonment” by the appellant, the primary judge should have then proceeded to find that the respondent’s belief that the appellant had resigned was an erroneously held belief.

56    We do not accept this submission. The question is an objective one and is not determined by reference to the respondent’s subjective belief. In any event, as J[221] makes clear, the primary judge noted that whilst the 26 June 2015 conversation, if taken alone, might be regarded as inconclusive, the subsequent events confirmed that the appellant intended to resign from, or abandon, his employment. In other words, the 26 June 2015 conversation was not taken alone and instead was taken into account together with subsequent events which confirmed that (considered objectively) the appellant intended to resign from or abandon his employment with Platinum on 26 June 2015. We note that the subsequent events to which the primary judge expressly referred were the 30 June 2015 minutes and the 5 July 2015 conversation, both of which are consistent with the appellant having left the employ of Platinum and in respect of which no challenge has been made. To these events might be added Mr Atie’s evidence that after 26 June 2015 he ceased to see the appellant regularly at Platinum’s premises (see [24(5)] above).

Ground 1 – second error

57    The appellant also submitted that the primary judge’s conclusion that the appellant intended to abandon his employment with Platinum on 26 June 2015 was contrary to the respondent’s evidence in cross-examination. The relevant passage of cross-examination is reproduced below, with emphasis on the part upon which the appellant relies:

So you would agree with me that other than the words, “Yes, I want to buy the truck and you can’t stop me”, you have – there’s no other evidence that [the appellant] resigned his job, is that correct?---I suppose.

And it’s also your evidence in this proceeding that [the appellant] abandoned his role to buy a truck and run his own business, is that correct?---Correct.

You have also stated that the [appellant] abandoned his role to work for John Dahdah, is that correct?---No. I don’t believe I stated that.

58    The emphasised evidence does not falsify the primary judge’s conclusion that the appellant intended to abandon his employment on 26 June 2015. At its highest, this evidence is a statement by the respondent that it was not his evidence that the appellant abandoned his role to work for John. Read in context with the previous questions and answers, it is plain that the respondent’s evidence was that the appellant abandoned his role so as to buy a truck and run his own business. The fact that the appellant commenced with Veejay shortly after the 26 June 2015 conversation remains consistent with a conclusion that the appellant resigned or abandoned the employment contract in that conversation so as to buy a truck and run his own business, regardless of whether the appellant followed through with his intention, as expressed in that conversation, or subsequently changed course. As the primary judge found at J[225]: “It is entirely possible that the [appellant] changed his mind after the respondent refused to provide his support (including financial support) for buying the truck and instead decided to chance his arm working for John”.

59    Ground 1 should be dismissed.

Ground 2: Resignation – Permanent residency

60    The second ground of appeal (ground 2) is expressed in the notice of appeal as:

The learned judge erred in finding that the Appellant left the employment of Platinum on about 26 June 2015: Decision at [227]. The finding of the learned judge on this issue is at odds with and glaringly improbable, in light of the evidence and findings below: …

61    The appellant submitted that the finding at J[227] should be set aside because it is:

(1)    glaringly improbable and/or contrary to impelling inferences in light of evidence establishing that the appellant wished to obtain permanent residency and remain in Australia (ground 2 – first error); and

(2)    “at odds” with the finding at [224] (ground 2 – second error).

62    For ease of reference, we set out again J[224] and [227]:

224    However, after observing the [appellant] in the witness box and considering his evidence closely, in my view he was capable of making impulsive and irrational decisions if he considered that they would be to his benefit. The fact that he behaved in a way that may appear objectively to be irrational does not persuade me that he was being truthful in denying, in the face of the other evidence to which I have referred, the 26 June 2015 conversation or in presenting the alternative version of events that he has advanced in relation to his work at Veejay, or the events that happened thereafter.

…

227    In the result, the conclusion that I reach is that the [appellant] has not made out his case that he worked for Platinum for the period from 27 June 2015 until 1 October 2017. I accept that he left the employment of Platinum on about 26 June 2015.

Ground 2 – first error

63    The evidence and findings relied upon by the appellant as establishing that the appellant wished to obtain permanent residency and remain in Australia are as follows:

(1)    evidence from Jousephine that the appellant had a secure job in Lebanon, where his wife also worked and his children had access to free private school education and that the appellant had not expressed an interest in leaving Lebanon;

(2)    the 14 October 2014 letter from the Department of Home Affairs which provided that if the appellant were to cease working for his sponsor (Platinum) then he would be required to find another employer willing to nominate him, apply for another type of substantive visa, or leave Australia;

(3)    the appellant’s evidence that he would not have resigned from his job in Lebanon if he had not thought he could obtain a permanent residency visa in Australia (referred to at J[207]);

(4)    the appellant’s evidence that during the course of negotiations with the respondent prior to entering into the employment contract, the respondent told him “After two years you can stay in Australia permanently”, together with the respondent’s concession that he said words to that effect;

(5)    the appellant’s subsequent move from Lebanon to Australia and his evidence that he would not have done so but for the respondent’s statement that the appellant would be able to get a permanent residency visa after two years;

(6)    the appellant’s evidence that the respondent told him that he needed to be able to demonstrate that he had been working for Platinum for two years (referred to at J[174]);

(7)    the primary judge’s finding at J[208] that documents relevant to the appellant’s application for permanent residency were of concern to the appellant;

(8)    the respondent’s concession in cross-examination that the appellant never said he was quitting his job at Platinum;

(9)    the appellant’s evidence that he was concerned about whether the respondent was remitting withholding taxes to the Australian Taxation Office because of the potential effect on his ability to apply for permanent residency; and

(10)    the appellant’s evidence that he had enrolled in English classes to meet the English language requirement for permanent residency.

64    Taken at their highest, the findings and evidence set out in the previous paragraph allow a conclusion to be drawn that the appellant was aware that resigning or abandoning his employment contract with Platinum could imperil his prospects of obtaining the permanent residency in Australia that he desired.

65    The primary judge was alive to the tension between the propositions that: (1) the appellant was aware that resigning or abandoning his employment contract with Platinum could imperil his prospects of obtaining permanent residency in Australia; and (2) the appellant resigned or abandoned his employment contract with Platinum. As noted at [42] above, the primary judge expressly addressed and resolved that tension at J[223] to [224] by reference to his conclusion that, having observed the appellant in the witness box and having considered his evidence closely, he was capable of making impulsive and irrational decisions if he considered that they would be to his benefit.

66    We discern no error in his Honour’s conclusion. It was, as his Honour stated, based upon his observations of the appellant in the witness box and close consideration of his evidence. Further, the primary judge found the appellant was a witness whose evidence he was not prepared to accept absent corroborating material.

67    Finally, we note that the apparent tension between the two propositions at [65] above was also capable of resolution by reference to Mr Boustany’s evidence of his conversation with the appellant on or about 26 June 2015, which is set out at [23] above and which included:

68    Put another way, the appellant’s submission assumes that the appellant would have acted lawfully, when a basis for that assumption has not been established and such an assumption appears to be contrary to Mr Boustany’s evidence.

69    The appellant also submitted that: (1) the primary judgment does not demonstrate why the appellant would have chosen to work for Veejay rather than Platinum and there was no evidence of: dismissal by Platinum; an irretrievable breakdown of the relationship between the appellant and the respondent; alternative sponsorship; or a decision by the appellant to live in Australia without a visa or to return to Lebanon; and (2) absent such evidence, the finding at J[227] that the appellant left the employment of Platinum on or about 26 June 2015 had no basis.

70    Whilst evidence of the kinds suggested in the previous paragraph might have provided a reason why the appellant resigned or abandoned his employment on or about 26 June 2015, the absence of such evidence does not lead to the conclusion that the appellant did not resign or abandon his employment. Further, as explained above there is a clear (and unassailed) evidentiary basis for the conclusion that the appellant resigned or abandoned his employment in (1): the evidence of Mr Boustany and Mr Atie; (2) the 30 June 2015 minutes and the 5 July 2015 conversation; and (3) the primary judge’s finding at J[224] that the appellant was capable of making compulsive and irrational decisions if he considered that they would be for his benefit.

71    The appellant also submitted that the finding at J[227] is not a finding that was likely to have been affected by impressions about the credibility of the appellant formed as a result of the trial judge seeing and hearing the witnesses give evidence. This submission flies in the face of the primary judge’s clear explanation that his conclusion that the appellant left Platinum’s employ on 26 June 2022 was not only affected by impressions as to the credibility of various witnesses, but largely based on his acceptance of the evidence of Mr Boustany, Mr Atie and John over the evidence of the appellant. The submission is rejected.

72    The appellant’s final submission in support of this aspect of the second ground of appeal is that the finding at J[227] is erroneous because it is glaringly improbable and not supported by incontrovertible evidence. The finding is not glaringly improbable, for the reasons previously stated. Contrary to the appellant’s submissions, the primary judge’s finding need not be based on incontrovertible evidence. This submission is rejected.

Ground 2 – second error

73    In support of the suggested second error – that the finding at J[227] was “at odds” with the finding at J[224] – the appellant submitted that the primary judge erred because: (1) his justification for finding that the appellant resigned or abandoned his employment, despite the effect on his application for permanent residency, was that the appellant was capable of making compulsive and irrational decisions if he considered that they would be for his benefit; and (2) the move from Platinum to Veejay was not to his benefit because it would have resulted in a lower wage and the loss of an opportunity to obtain permanent residency.

74    We do not accept that submission. The appellant’s decision, as expressed in the 26 June 2015 conversation, was not a move to Veejay but instead to a business of the appellant’s own; and the evidence of Mr Boustany was that the appellant stated that he could make a lot more money “working the truck” (J[137]). Further, the contention that the appellant perceived that he would lose the opportunity to obtain permanent residency is inconsistent with Mr Boustany’s evidence that the appellant expressed his belief that the respondent would provide false information to the Department of Home Affairs so as to satisfy the visa condition (see [23] above).

75    Ground 2 should be dismissed.

Ground 3: Secondment

76    The third ground of appeal (ground 3) is expressed in the notice of appeal as:

The learned judge erred in finding at [203] and [204] that the Appellant did not continue to work as an employee for Platinum between 5 July 2015 and October 2016. The findings of the learned judge on this issue are contrary to compelling inference [sic] which arise from, a combination of the following evidence: …

77    The primary judge’s findings at J[203] to [204] were:

[203]    I have referred to the evidence relating to the period when the [appellant] went to work at Veejay in section 7.2. Having regard to the matters set out there I:

(1)    Find that the [appellant] worked as a labourer at Veejay from 5 July 2015 until October 2016;

(2)    Find that the [appellant] worked under the supervision of John during that period and was engaged to work by Veejay;

(3)    Reject the submission that the Harakat work books or the invoices adduced in evidence by the [appellant] from Platinum to Veejay demonstrate that Platinum continued to employ him while he worked for Veejay or that he was otherwise working under a secondment from Platinum during that period;

(4)    Reject the contention that during the period that he worked at Veejay, the [appellant] worked under the supervision of the respondent; and

(5)    Find that Veejay paid the [appellant] in cash for the duration of his employment with Veejay.

[204]    It follows that I reject the [appellant’s] contention that he continued to work as an employee for Platinum during the period from 5 July 2015 until October 2016. To the contrary, I find that during that period he was engaged (whether as an employee or otherwise is unclear on the evidence) for Veejay.

78    The appellant’s submissions presented this ground as involving the following errors:

(1)    the primary judge’s finding (at J[226]) that the 2016 and 2017 group certificates were falsified was “glaringly improbable” (ground 3 – first error); and

(2)    the primary judge failed to consider or have regard to particular items of evidence in determining whether or not the appellant worked for Veejay on secondment (ground 3 – second error).

Ground 3 – first error

79    The 2016 and 2017 group certificates are described at [31] above. As the primary judge noted at J[226], these group certificates suggested on their face that the appellant was employed by Platinum during the 2016 and 2017 financial years.

80    The evidence considered by the primary judge concerning the creation of the 2016 and 2017 group certificates focussed upon the 13 September 2017 family meeting. At J[210], the primary judge expressed the following conclusion:

Having regard to the whole of the evidence, I consider that it is likely that the effect of the meeting was, as the respondent’s evidence indicates, to ask the respondent to produce group certificates for Platinum in respect of the [appellant], regardless of whether or not Platinum had been the employer of the [appellant] for the whole period, because the [appellant], Jouliana and Jousephine considered them to be important for his application for permanent residency in Australia.

81    In reasoning to that conclusion, the primary judge found that:

(1)    at the 13 September 2017 family meeting the question of the group certificates was raised in the context of the provision by Platinum of such documents to the appellant for the purposes of his application for permanent residency;

(2)    the subject was raised because the appellant, Jousephine and Jouliana thought that it would be necessary for the appellant to have such documents in order to further his claim for permanent residency in Australia on the basis that he had worked for Platinum for two years;

(3)    it was likely that it was the appellant (who was conscious by then of the need to prove that he had worked with the same employer for two years) who provided Jousephine and Jouliana with the (incorrect) narrative that he had remained in employment with the respondent at Platinum, and that their acceptance of that position arose from him;

(4)    contrary to the appellant’s contention, the purpose of the 13 September 2017 family meeting was not to address unpaid money owed by the respondent (or Platinum) to the appellant, in circumstances where neither Jousephine nor Jouliana had such a recollection;

(5)    contrary to the respondent’s contention, the appellant did not threaten to kill the respondent if he did not produce such group certificates, in circumstances where neither Jouliana nor Jousephine had a recollection of such words being used and where if they had been used then this would likely have been remembered by other participants in the meeting;

(6)    the respondent thought it expedient to “get [the appellant] off his back” by instructing his accountant to create the group certificates, to meet the desires of Jouliana and Jousephine and, perhaps to a lesser extent, those of the appellant; and

(7)    the respondent was prepared to satisfy that expediency by instructing his accountant to prepare false group certificates.

82    As noted above, the primary judge accepted the evidence of Jousephine and Jouliana with respect to the conversation at the 13 September 2017 family meeting. At J[200] the primary judge explained:

I accept that Jouliana and Jousephine attempted to provide honest evidence of their recollection of the conversation. It is apparent that the conversation was long and that their memory of it is fragmented. Clearly none of the witnesses purports to recite it in full. For the reasons given, I am cautious in accepting either the [appellant] or the respondent’s version of events without supporting material from third party sources.

83    At J[226], the primary judge explained why he was satisfied that the 2016 and 2017 group certificates were false (see [44] above).

84    The appellant submitted that the 2016 and 2017 group certificates are compelling evidence that the appellant was employed by Platinum during those financial years and that the finding these group certificates were falsified was glaringly improbable. However, the appellant does not directly challenge the primary judge’s reasoning and in particular his finding based upon his acceptance of the evidence of Jousephine and Jouliana that, at the September 2017 meeting, they urged the respondent to produce the 2016 and 2017 group certificates to assist the appellant in his application for permanent residency, and that the respondent agreed to comply. It follows that the primary judge’s finding as to the 2016 and 2017 group certificates should stand.

85    The appellant also submitted that once the primary judge rejected the respondent’s evidence that the appellant had threatened to kill him, there was no other evidence of a reason for the respondent to falsify the group certificates and the primary judge should have found that the group certificates were not falsified and thus were evidence supportive of the proposition that the appellant was an employee of Platinum during the 2016 and 2017 financial years.

86    This submission is rejected. The primary judge’s findings concerning the 13 September 2017 family meeting did not depend upon his finding that the appellant did not threaten to kill the respondent. It had an independent basis in the findings set out at [81] above that the focus of the 13 September 2017 family meeting was upon obtaining documents to support the appellant’s application for permanent residency; Jousephine and Jouliana wished the respondent to obtain the group certificates to support that application; and that the respondent was prepared to do so in order to meet their wishes.

87    The appellant also submitted that it was not open to the primary judge to find that the respondent issued the group certificates to “get [the appellant] off his back” in circumstances where:

(1)    the phrase “get [the appellant] off his back” was not in evidence, and was introduced in the respondent’s written submissions based on the respondent’s evidence that the appellant had threatened to kill him if he did not produce the group certificates; and

(2)    the phrase “get [the appellant] off his back” pre-supposes that the respondent was under duress to provide the group certificates and there was: (a) no evidence that the respondent was under duress or threatened by the appellant or family members to get permanent residency for the appellant; or had refused or was unwilling to sponsor the appellant’s permanent residency; (b) evidence to the contrary in that the respondent sent the appellant to Lebanon to obtain documents for his permanent residency and to his registered migration agent, Matthew Seaman to obtain information on filing for permanent residency.

88    We do not accept these submissions for the following reasons. First, contrary to the appellant’s submission, the phrase “get [the appellant] off his back” was in evidence and did not appear for the first time in closing submissions. In his affidavit sworn 19 September 2019, the respondent stated “I left after this and concluded that I needed to get [the appellant] off my back”. Secondly, the expression “get [the appellant] off my back” does not require physical duress and is equally capable of application, as the primary judge found, to requests unaccompanied by threats of physical force. Thirdly, whilst there is evidence that the respondent was supportive of the appellant’s application for permanent residency, this is beside the point. It does not follow from the premise that the respondent was willing to assist the appellant, that the appellant was not on the respondent’s “back” about such assistance.

89    The appellant also submitted that it is highly unlikely that the respondent would have agreed to place Platinum in a position where it would have been responsible for withholding taxes in the 2016 and 2017 financial years amounting to a total of $34,787 in circumstances where: (1) the respondent claims that the appellant ceased to work for Platinum on 26 June 2015 and performed no work for Platinum in the 2016 and 2017 financial years; and (2) there is no evidence of the respondent being under duress to assist with the appellant’s permanent residency application.

90    We accept that a corollary of the primary judge’s finding is that Platinum voluntarily assumed a liability to taxation and that is a matter which is capable of supporting a finding that the 2016 and 2017 group certificates were genuine. However, it does not render the primary judge’s finding that those certificates were false one which cannot stand because it is contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable or contrary to compelling inferences particularly in circumstances where the primary judge reached the conclusion after careful consideration of the evidence, and in particular that of Jousephine and Jouliana, that the respondent did so in order to satisfy the desires of Jousephine and Jouliana (and to a lesser extent) the desires of the appellant (J[212] to [213] and [226]).

91    The appellant also submitted that the primary judge did not explain whether the 2016 and 2017 group certificates were false because they contained false representations; were forged; or were issued to a person who no longer worked for Platinum. Whilst the appellant suggested that there may be different bases for finding the 2016 and 2017 group certificates to have been false, the appellant did not explain the significance, or the necessity, if any, of an explanation as to which of the suggested bases was the primary judge’s reason for finding that the 2016 and 2017 group certificates were false documents. In our view, it is tolerably clear that the primary judge considered these certificates to be false because they conveyed representations that the appellant had been employed by Platinum during the 2016 and 2017 financial years when he had not been so employed. No error arises.

Ground 3 – second error

92    The second suggested basis of error in the third ground is that the primary judge failed to consider or have regard to particular items of evidence in determining whether or not the appellant worked for Veejay on secondment. This represents a shift away from the notice of appeal which contended that particular evidence gave rise to compelling inferences contrary to the findings of the primary judge. The respondent did not take issue with this shift in the appellant’s case. In any event, the shift is of little consequence. For the reasons set out below, we are not satisfied that any of the evidence relied upon by the appellant is of such importance that the primary judge erred in not considering it, or gives rise to inferences sufficiently compelling that the primary judge’s finding that the appellant did not continue to work as an employee for Platinum between 5 July 2015 and October 2016 should be set aside.

93    The evidence which the appellant contends the primary judge failed to consider is as follows.

94    First, the following affidavit evidence of the respondent:

57.    After a number of weeks had passed I received a call from my father and we had a conversation to the following effect:

John:    … I just got a call from [the appellant] telling me he isn’t going into work tomorrow because he wants to work for his friends.

Respondent:    Well, that’s his problem. I told him he isn’t allowed to do his own thing. But he doesn’t like to listen. That’s why I told him to fuck off when he insisted on leaving me to buy his own truck.

…

60.    A number of months went past and I did not deal with [the appellant] other than at normal family functions or when I would visit my parents as he was living there. Sometime in October of 2016 I received a phone call from John and we had a conversation to the following effect:

John:    … that fucking idiot [the appellant] doesn’t listen to instructions. I told him to come down and he insisted on doing his own thing. He hit the fucking fire sprinklers in Westfields and flooded the fucking shops.

Respondent:    Are you serious? You need to notify the insurance company right away.

John:    I have, the fire brigade are here. It is a fucking shit fight.

95    The appellant relies on this as evidence supporting the proposition that John continued to report to the respondent incidents at his workplace involving the appellant. However, neither conversation suggests that the appellant continued to be employed by Platinum. Indeed, the conversations are consistent with such employment having terminated and with the appellant working for Veejay. Further, the fact that there were conversations between the respondent and his father concerning the appellant (a closely related family member) is unremarkable. This evidence does not favour the appellant much less in any significant way; and gives rise to no inferences favourable to him, much less any compelling inference.

96    The second item of evidence upon which the appellant relies is the respondent’s evidence that he received the appellant’s tax refund for the 2015 financial year on 21 June 2016.

97    The primary judge referred to this receipt at J[240]. The appellant’s submissions do not explain the basis on which he contends that this evidence was not considered by the primary judge; its significance; or the inference to which it is said to give rise. It is not on its face supportive of the proposition that the appellant continued to work for Platinum beyond 26 June 2015, particularly as it relates to the 2015 financial year.

98    The third item of evidence upon which the appellant relies is Jousephine’s evidence of a meeting in July 2017 (July 2017 meeting) in which she recounted that John said that he had transferred the appellant’s wages to the respondent’s account and did not know why the respondent was not paying the appellant. The evidence relied upon by the appellant is:

(1)    the following evidence in an affidavit made by Jousephine:

[6]    In or about July 2017, I arranged a meeting at my house at … and the following conversation took place.

Jousephine:    Why are you [the respondent] not paying [the appellant] his money?

John:    I am transferring the money to [the respondent’s] account and he pays him [the appellant]. I don’t know why [the respondent] is not paying [the appellant]. I still have seven weeks of [the appellant’s] wages that I have not transferred to [the respondent’s] account].

Jousephine:    Why are you not paying [the appellant]?

Respondent:    I don’t have the money. I have lots of bills to pay.

Jousephine:    But you are supposed to pay [the appellant] every week.

Respondent:    I know, but I don’t have the money.

Jousephine:    But if your dad [John] is transferring the money for you to pay [the appellant], you should be paying him.

Respondent:    I know but I have to pay my bills first.

Jousephine:    Well let [the appellant] work for someone else then if you are not going to pay him.

Respondent:    I am the one who got him into Australia. I am the one who should benefit from him not other people.

[7]    I arranged a meeting for [the appellant] and [the respondent] to see if they can resolve their differences in a mature way.

(2)    the following evidence from the cross-examination of Jousephine:

Ms Dahdah, the conversation which is set out in paragraph 6 of your affidavit, you say, “John said I’m transferring money to [the respondent’s] account and he paid. I don’t know why [the respondent] is not paying [the appellant],” this is what John said, right?---Yes. That was the first meeting I arranged to see [the respondent] to ask him, you know, to resolve the problem between him and my brother, and you know, to pay him his money. That’s when my uncle and his wife came over, too. My brother was in prison and I asked him why – I asked my brother John because I know – my uncle John, because I knew my brother was working with him and I said to him, “Why isn’t he getting paid?” And then my uncle said that he is transferring the money to [the respondent’s] account to [sic] [the respondent] can pay him. I don’t know why [the respondent] is not paying him.

99    The appellant submitted that the primary judge erred by failing to consider or engage with the above evidence, with such failure being apparent from the absence of a reference to the July 2017 meeting in the primary judgment. As explained at [12] above, a primary judge is not required to deal with all items of evidence and whether any failure to deal with particular evidence gives rise to appealable error depends upon the significance of that evidence. The above evidence is of little moment when considered in the context of Jousephine’s cross-examination as a whole, which included:

…

So you understood the amount of money which was being owed to [the appellant] was the amount … that John owed [the appellant] because [the appellant] worked for John, is that correct?---Yes.

…

And so I want to put to you when you were saying that, you understood that the money which [the appellant] was claiming was for work he had performed for John?---Yes, correct.

100    The fourth item of evidence upon which the appellant relies is an entry in the respondent’s bank account dated 19 February 2016 with the description:

Veejay Trans pl employment inv

101    The appellant contended that this was evidence that John transferred this amount to the respondent and (inferentially) that this was a payment by Veejay to Platinum for the services of the appellant on secondment. Whilst the possibility that this was the purpose of the payment cannot be excluded, it is far from strong evidence to that effect. There is no reference to the appellant in this entry nor have other possible explanations been excluded.

102    The fifth item of evidence upon which the appellant relies is the following evidence from Jousephine in cross-examination:

How long did you know that – or how long, to your knowledge, did [the appellant] work with your Uncle John?---Well he did for a long time. Exactly how long is that, I’m not sure. Because, as far as I know he went – he was working with Uncle John, and the – the last time that he worked with [the respondent], Uncle John had a job to do and he was at that time in – he went for a holiday in Lebanon, so he went with [the respondent] to that job. I’m not sure when was that exactly because it’s not my concern, you know, to actually ask questions, but he did work with my uncle John for a long time, but - - -

103    The appellant relies upon this evidence as supporting the proposition that John asked the respondent and the appellant to perform a job. It is not clear that the evidence supports that proposition. In any event, even if this proposition had been made good, it would not follow that the appellant was not working for Veejay at that time.

104    The sixth item of evidence upon which the appellant relies is the following evidence from the appellant in cross-examination:

Mr Seck:     Okay. Now, go back to the first page. You will see at 30 September 2015 there’s an entry for Veolia Environmental Services, $200. Do you see that?

Interpreter:     Yes.

Mr Seck:     Do you know what that was for?

Interpreter:     Yes.

Mr Seck:     What was that for?

Interpreter:     So it’s a company that I worked with while I was working with [the respondent’s] father, so I emptied the truck when I did the job.

Mr Seck:     Okay.

105    The appellant relies upon this evidence as establishing the proposition that John would send the appellant to work for a third party. That proposition is wholly consistent with the primary judge’s findings.

106    The seventh item of evidence upon which the appellant relies is the following evidence of Jousephine in cross-examination:

Did he tell you about – that’s the only mistake he told you about?---Yes, and there was another one. It’s not a mistake, where he was working, actually, him and [the respondent] – my uncle John sent them to do a job – to take a fence out from where they’re going to drive the truck through. They did and the lady said, “Don’t put the fence back, I don’t want it back now.” So anyhow, and then they called my uncle John, maybe a year later. She wanted the fence to be put back. But there wasn’t – and my uncle John blamed him for it because the lady – at that time, [the respondent] was present, too, with him. And the lady said not to put the fence, so they blamed him in the end for it.

107    The appellant relies upon this evidence as establishing the proposition that there was an occasion on which John had sent the respondent and the appellant to do a job requiring the removal of a fence. Again, such a proposition is not contrary to the primary judge’s finding that the appellant was working for Veejay.

108    The eighth item of evidence upon which the appellant relies is the following evidence of Jousephine in cross-examination:

So when you understood that [the appellant] was saying that his wages hadn’t been paid, you understood that to relate to the time he had been working with Platinum Distributors or working with John, that was the claim for the wages that he says he hadn’t been paid, correct? That’s your understanding?---Yes, my understand, yes. The – whatever work he did with my uncle – with my uncle for [the respondent], whatever he did, not get paid for it.

109    The appellant relies on this as evidence for the proposition that the appellant’s unpaid wages related to work he did with the respondent for John. The evidence cited does not support that proposition. In any event the evidence referred to at [99] above makes clear that Jousephine’s understanding (to the extent that this is relevant) was that the appellant was working for Veejay, not Platinum.

110    The ninth item of evidence upon which the appellant relies is the following evidence of the appellant under cross-examination:

Mr Seck:     And you ended up working for [the respondent’s] father John Dahdah for his business VJ Trans?

Interpreter:     [The respondent] made me work for John, his dad.

Mr Seck:     When you say he made you work for John, that’s not true. You decided to approach John and ask him to work there, correct?

Interpreter:     Not true.

Mr Seck:     You actually approached John on or about 5 July 2015 and asked whether or not you could work for his business.

Interpreter:     Not true.

Mr Seck:     And you started performing work after 5 July in John’s business as a labourer.

Interpreter:     So [the respondent] made me work for his father.

Mr Seck:     [The respondent] never gave you a direction to work for his father, you approached [the respondent’s] father to work.

Interpreter:     Not true.

Mr Seck:     And [the respondent’s] father paid you for the work performed in cash?

Ms Okereke-Fisher:     Your Honour, I object to that question. It’s not in evidence, your Honour.

His Honour:     I allow the question.

Mr Seck:    [The respondent’s] father paid you in cash?

Interpreter:    John never paid me, it was [the respondent] who used to pay me.

Mr Seck:    And John Dahdah gave you a truck when you started working for him, that’s right?

Interpreter:    I used to work as a labourer first, and then he gave me the truck.

111    The appellant relies upon this evidence as establishing the proposition that the respondent made him work for John, he worked as a labourer, then he was given a truck. The appellant’s submission impermissibly assumes the veracity of the appellant’s evidence, a matter which the primary judge made clear he did not accept.

112    The final item of evidence upon which the appellant relies is the following evidence from John:

Now, Mr Dahdah, in the course of the – part of the work that [the appellant] did for VJ, you say, included driving a truck, is that correct?---Yes.

Do you remember ever travelling out of state with [the appellant] to procure a truck?---Yes.

And the truck in question, was is [sic] it a truck for VJs operations?---No.

What was the truck for?---We were picking up a truck for [the respondent].

113    The appellant relies upon this evidence as establishing the proposition that John travelled inter-state with the appellant to pick up a truck that the respondent had purchased. This is far from persuasive evidence that the appellant was employed by Platinum and not by Veejay.

114    At its highest, some of the evidence discussed at [94] to [113] above might have been capable of supporting a finding that the appellant did continue to work as an employee for Platinum between 5 July 2015 and October 2016. However, none of it individually or in any combination is of such significance that the primary judge (to the extent that he did not) was required to expressly deal with it in his judgment. Nor does it give rise to any inference so compelling that the primary judge’s finding that the appellant did not continue to work as an employee for Platinum during that period should be set aside.

115    Ground 3 should be dismissed.

Ground 4: Secondment

116    The fourth ground of appeal (ground 4) is expressed in the notice of appeal as:

The learned judge erred in finding at [203(4)] that the Appellant contended that he worked under the supervision of the Respondent. This finding reveals a misconstruction of the Appellant’s pleaded case on secondment, having regard to: (a) the [appellant’s] pleaded definition of Secondment “The Second Respondent directed the [appellant] to work for John Dahdah and advised the [appellant] that the [respondent] would still pay the [appellant’s] salary, whilst he works for John Dahdah (the “Secondment”). The misconstruction of the appellant’s pleaded case on secondment was operative in the dismissal of his claim.

117    At J[203(4)] the primary judge stated:

I have referred to the evidence relating to the period when the [appellant] went to work at Veejay in section 7.2. Having regard to the matters set out there I:

…

(4)    Reject the contention that during the period that he worked at Veejay, the [appellant] worked under the supervision of the respondent; and

…

118    The appellant submitted that the statement in [203(4)] revealed a misconception by the primary judge as to the case advanced by the appellant below and in particular that:

(1)    the case advanced below was that between July 2015 and October 2016 the appellant remained employed by Platinum but had been placed on secondment with John;

(2)    in his Amended Statement of Claim the appellant pleaded that: “the [respondent] directed the [appellant] to work for [John] and advised the [appellant] that the [respondent] would still pay the [appellant’s] salary, whilst he works for [John]”; and

(3)    it was not part of the appellant’s case that he worked for John or that the respondent supervised the work that the appellant performed for John.

119    The appellant submitted that this misconception is evident in J[148] and [149], where the primary judge stated:

148    In relation to (b), John denies that his son [the respondent] … gave instructions to the [appellant] whilst he was working for Veejay. John gave convincing evidence that the respondent was not involved in or part of any operational routine of Veejay and did not provide instructions to the [appellant]. In cross examination John explained that, whilst from time to time his son assisted him with paperwork and computer work and the preparation of safe work method statements required by Veejay, he “does not know one end of a screwdriver from the other” and would be of no assistance. From time to time the respondent, via Platinum, sourced products that John used in the operations of Veejay. Whilst John understood that the respondent was the [appellant’s] sponsor under his 457 Visa, at no point did John consider that the [appellant] was under the respondent’s supervision whilst he was working for Veejay.

149    John explained that Veejay is in the business of transporting and disposing of asbestos and demolition waste from demolition sites, which requires a government-issued licence held by John as a qualified supervisor. John did not consider that it would be possible for the respondent, who is not qualified, to supervise the work of the [appellant]. I accept this evidence as inherently credible.

120    The appellant submitted that these paragraphs indicated that the primary judge was considering whether John was the appellant’s on-site supervisor rather than whether the appellant remained under the respondent’s control and direction when working for John. We do not accept the appellant’s submissions, for the following reasons.

121    First, it is evident from the reasons for judgment that the primary judge clearly understood the secondment case as it was put by the appellant. His Honour stated:

(1)    at J[11]:

… The [appellant] contends that he remained an employee from 17 February 2015 until October 2017 but that for a period from about June 2015 to October 2016 the respondent instructed him to work on secondment with Veejay, the company owned by the respondent’s father, John. …

(emphasis added)

(2)    at J[33]:

The [appellant] contends that in May 2015 the respondent directed him to go to work for his father, John, and assured the [appellant] that Platinum would still pay his salary whilst he did so. He submits that during the secondment, the [appellant] worked on a full-time basis and continued to report to and take directions from the respondent as his direct supervisor and manager. ... He contends that after the secondment period ceased on 17 October 2016 the [appellant] returned to work for Platinum under the direction of the respondent until October 2017. ...

(bold emphasis in original; italicised emphasis added)

(3)    at J[113]:

Central to the [appellant’s] case is his claim that from July 2015 until October 2017 he continued to be employed by Platinum and, at the direction of the respondent, he worked on secondment at Veejay. He contends that during that period Platinum invoiced Veejay for his labour services and the respondent continued to promise that he would pay him his wages. He contends that in May 2015 he was instructed by the respondent to go to work for John at Veejay because Platinum did not have enough work for him to do, and that in July 2015 he commenced his secondment, which lasted until he had a falling out with John in October 2017.

(emphasis added)

122    Secondly, the appellant’s submission is misconceived when consideration is given to the manner in which the case was presented; and to the primary judge’s reasons as a whole and how J[148] and [149] fit within those reasons.

123    The primary judge framed the secondment issue by reference to three questions. At J[142], the primary judge stated:

There is no dispute that the [appellant] worked as a labourer for Veejay from July 2015 until October 2016. However, the parties are at odds as to whether (a) the respondent instructed the [appellant] to work at Veejay; (b) during the time that he did so, the respondent gave instructions to the [appellant] as to what to do; and (c) Veejay invoiced and was paid by Platinum for the work performed by the [appellant].

124    The primary judge then considered question (a) at J[143] to [147]; question (b) at [J148] to [149]; and question (c) at J[150] to [158].

125    The primary judge answered question (a) by finding that the respondent did not instruct the appellant to work at Veejay. In other words, the pleaded claim set out at [118(2)] above was rejected.

126    Question (b) – whether between July 2015 and October 2016 the respondent gave instructions to the appellant as to what to do – arose from a submission made by the appellant as part of his secondment case, that “… during the secondment, the [appellant] worked on a full-time basis and continued to report to and take directions from the respondent as his direct supervisor and manager …” which the primary judge recorded at J[33], and which he answered at J[148] to [149]. The appellant’s submissions mistakenly treat J[148] and [149] as an answer to question (a) when those paragraphs are an answer to the narrower question (b).

127    For the reasons set out above, the primary judge addressed the correct questions and there was no misconception on his part.

128    Ground 4 should be dismissed.

Ground 5: Group certificates

129    The fifth ground (ground 5) is expressed in the notice of appeal as:

The learned Judge erred in finding at [226] that the 2016 and 2017 ATO group certificates are false and at [212] that the Respondent instructed his accountant to falsify ATO group certificates because it was expedient to “get [the appellant] off his back,” having regard to the Respondent’s evidence that he falsified the group certificates because the Appellant threatened to kill him if he did not produce such statements [211] and in view of the following findings…

130    The appellant’s submissions concerning ground 5 have been addressed above under ground 3. For the reasons there stated, ground 5 should be dismissed.

Ground 7: Payment of wages during secondment period

131    The seventh ground of appeal (ground 7) is expressed in the notice of appeal as:

The learned judge erred in finding at [203(5)] that Veejay paid the Appellant in cash for the duration of his employment with Veejay in circumstances where the learned Judge failed to consider evidence given by the appellant’s witness to the contrary.

132    At J[203(5)], the primary judge found:

I have referred to the evidence relating to the period when the [appellant] went to work at Veejay in section 7.2. Having regard to the matters set out there I:

…

(5)    Find that Veejay paid the [appellant] in cash for the duration of his employment with Veejay.

133    The primary judge had earlier noted at J[151]:

John gave evidence that Veejay paid cash to the [appellant] for the work that he performed.

134    The appellant submitted the finding at J[203(5)] was the product of three errors:

(1)    there was no affidavit or oral evidence stating that John or Veejay paid the appellant in cash to support these findings (ground 7 – first error);

(2)    the primary judge erred in making the finding without considering or engaging with significant contradictory evidence from Jousephine (ground 7 – second error); and

(3)    the primary judge erred in failing to weigh conflicting evidence (ground 7 – third error).

135    The appellant’s submissions treated the second and third contended errors together. We will do likewise.

Ground 7 – first error

136    The appellant submitted that there was no evidence to support the finding that Veejay paid the appellant in cash.

137    The appellant set out in his submissions a question from the primary judge: “Is it your evidence that you paid – VJ paid [the appellant] directly for the work done?”, and John’s response “Directly. Yes, your Honour”, and submitted that this exchange does not support the finding that John paid the appellant’s wages by cash because paying the appellant “directly” is not limited to payment by cash and includes payment by cheque or bank transfer.

138    There appears to be no evidence that the payments made by Veejay to the appellant were made by cash (and the respondent did not submit that there was such evidence). To this extent, the primary judge appears to have erred. However, it is an error without consequence, as there is evidence from John, accepted by the primary judge and set out in the preceding paragraph, that Veejay paid the appellant directly. No challenge is made to that finding and the appellant’s submissions expressly acknowledge that a direct payment could have been made in other ways. As the finding that John paid the appellant directly stands, the primary judge’s reasoning is unaffected.

Ground 7 – second and third errors

139    In support of the second and third contended errors, the appellant submitted that the finding that John paid the appellant in cash was “undermined” by the primary judge’s failure to consider, evaluate and assign weight to Jousephine’s evidence of the July 2017 meeting.

140    Jousephine’s evidence concerning the July 2017 meeting has been considered at [98] and [99] above. It does not assist the appellant’s case.

141    Ground 7 should be dismissed.

Ground 8: Secondment and payment of wages

142    The eighth ground of appeal (ground 8) is expressed in the notice of appeal as:

The learned judge erred in failing to consider or have regard to evidence supporting the [appellant’s] case and contradicting the respondent’s case.

143    The appellant submitted that the primary judge failed to consider or have regard to the following items of evidence which supported his case and contradicted the respondent’s case.

144    First, Jousephine’s evidence of the July 2017 meeting. This has been dealt with at [98] and [99] above and does not assist the appellant.

145    Secondly, evidence described as the evidence of Jousephine and Jouliana “in relation to the [appellant’s] employment”. The particular evidence is not identified beyond a reference to six pages of transcript for Jousephine and four pages of transcript for Jouliana.

146    The appellant’s submissions do not address this ground beyond asserting that the primary judge failed to consider the evidence; the evidence was critical (without explaining why); and the evidence supported the appellant’s case and contradicted the respondent’s case.

147    We have considered the evidence identified at [145] above. None of that evidence is of such significance that it can be concluded that the primary judge erred by not referring to it in his judgment. Nor is it evidence that renders the primary judge’s findings as findings contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.

148    Ground 8 should be dismissed.

E.    third issue – case for unpaid wages in the period from february 2015 until 26 june 2015 – ground 6

The appellant’s case and the primary judge’s findings

149    Part 8.2 (J[232] to [245]) of the primary judgment addressed an alternative case advanced by the appellant concerning a claim for unpaid wages for the period from February 2015 until 26 June 2015. In answer to that case, the respondent relied upon the 2015 tax return and the 2015 tax assessment. The 2015 tax assessment was described by the primary judge at J[66] as follows:

On 15 June 2016 the ATO issued a notice of assessment to the [appellant] of his income tax for the year ended 30 June 2015 (2015 tax assessment). This was not provided by [appellant] in his affidavit evidence, but was produced by him on discovery. It contains the following relevant details:

•    It is addressed to the [appellant] at a location in Ermington NSW;

•    The taxable income was $44,600;

•    The tax is assessed at $6,042;

•    The PAYG credits and other entitlements are assessed at $13,000;

•    A refund to the [appellant] is assessed at $6,398.

(emphasis in original)

150    At J[242] to [243], the primary judge expressed his conclusions on that alternative case:

242.     I am not persuaded, on the basis of the evidence available, that the 2015 tax return does not represent the true position, namely that the [appellant] was paid wages by Platinum prior to 26 June 2015. There is no suggestion that the tax return is not a genuine document, or that the ATO did not provide a refund in the amount specified in the return. It is inherently improbable that Platinum or the respondent would have manufactured a state of affairs where tax would be paid in respect of wages for the [appellant] in circumstances where he was not paid at all. Indeed, such a proposition was not put to the respondent even though the submissions advanced by the [appellant] suggest (without making the allegation directly) that this is what must have taken place.

243.     In the circumstances, in my view the [appellant] has not established that he was not paid wages for the period 17 February 2015 to 26 June 2015.

(emphasis added)

The sixth ground of appeal

151    The sixth ground of appeal is expressed in the notice of appeal as:

The learned judge erred in finding at [242] that he was not “persuaded that on the basis of the evidence available that the 2015 tax return does not represent the true position, namely that the [appellant] was paid wages by Platinum prior to 26 June 2015”.

Consideration

152    The appellant contends that the primary judge’s finding at J[242] that he was not persuaded that the 2015 tax return does not represent the true position is erroneous, for the following reasons.

153    First, the appellant submitted, the reasoning to that conclusion is flawed in that:

(1)    the appellant denies having received such wages;

(2)    at its highest, the 2015 tax return and 2015 notice of assessment prove that the respondent paid withholding tax to the Australian Taxation Office, but do not prove that wages were in fact paid by Platinum to the appellant; and

(3)    the primary judge’s reasoning does not allow for the possibility that the respondent could have caused a state of affairs in which Platinum paid withholding taxes to the Australian Taxation Office but did not pay the appellant.

154    We discern no flaw in the reasoning of the primary judge. He was required to determine whether Platinum had failed to pay wages to the appellant between February 2015 and 26 June 2015. He had determined that neither the appellant’s nor the respondent’s evidence could be accepted absent corroboration. He had before him the 2015 tax return and the 2015 notice of assessment which on their face suggested that such wages had been paid. On that basis, he was unpersuaded that there had been an underpayment by Platinum to the appellant. To have found otherwise, the primary judge would have had to conclude that the 2015 tax return was a false document and, as the primary judge found at J[242], there was no suggestion made that the 2015 tax return was not a genuine document. In these circumstances, a finding that the appellant had not discharged the onus of proving that he had not been paid wages between February 2015 and 26 June 2015 was not only open, but also clearly correct.

155    Thus, the appellant’s submissions are rejected. More particularly, and addressing the matters set out at sub-paragraphs [153(1) to (3) above]:

(1)    the appellant’s denial of having received wages was of no weight given his Honour’s credit findings concerning the appellant, the absence of corroborative evidence and the presence of contradictory evidence;

(2)    whilst the 2015 tax return and 2015 notice of assessment do not conclusively prove that wages were in fact paid by Platinum to the appellant, they are significant evidence of that fact. Further, the primary judge’s finding was not that wages were in fact paid by Platinum to the appellant but that the appellant had not proved that such payments had not been made; and

(3)    whilst as a matter of logic it was possible that the respondent could have caused a state of affairs in which Platinum paid withholding taxes to the Australian Taxation Office but did not pay wages to the appellant, no reason has been put forward as to why the primary judge should have made such a finding when: (1) it is difficult to reconcile with the 2015 tax return and 2015 notice of assessment; (2) it would require proof that the 2015 tax return contained false representations and that the respondent engaged in serious misconduct when an evidentiary foundation for the basis of such serious allegations had not been established. In circumstances where, as the primary judge noted at J[242], such a position was not put to the respondent, a submission based on the premise of such serious misconduct should not have been made to the primary judge. Nor should it have been made on appeal.

156    Secondly, the appellant submitted, the primary judge’s finding was not supported by evidence. This characterisation is inapposite when the finding was not that wages were paid by Platinum to the appellant, but that the appellant had not discharged his onus of proving that wages were not paid. Further, the finding that the appellant had not discharged his onus of proving that wages were not paid was supported by the evidence of the 2015 tax return and the 2015 notice of assessment. For the reasons set out above, the primary judge was correct to conclude that the appellant had not discharged his onus.

157    Thirdly, the appellant submitted, the primary judge’s finding is inconsistent with his findings at J[200] and J[226].

158    At J[200] the primary judge stated that he would not accept the respondent’s version of events without supporting material from third party sources. For there to be an inconsistency, it would be necessary for the primary judge to have accepted the respondent’s version of events. The primary judge did not do so. Again, the primary judge found, on the basis of the contents of the 2015 tax return, that the appellant had not proven that he did not receive wages from Platinum between February 2015 and 26 June 2015. This did not depend upon acceptance of the respondent’s evidence.

159    At J[226] the primary judge found that the 2016 and 2017 group certificates were falsified. The inconsistency is said to arise because such a finding implies that it was inherently probable that the respondent was prepared to pay withholding taxes totalling $34,787 to the Australian Taxation Office for the 2016 and 2017 financial years in circumstances where the appellant had performed no work for Platinum in those years. In contrast at J[242], the primary judge found that it was inherently improbable that the respondent would pay withholding taxes to the Australian Taxation Office without actually paying the appellant.

160    There are several important differences between the 2015 tax return and the 2015 notice of assessment on the one hand and the 2016 and 2017 group certificates on the other. First, the 2015 tax return and the 2015 notice of assessment related to a period in which it was common ground that the appellant was working for Platinum, so there was no reason to doubt the veracity of a tax return which showed that Platinum had paid wages to the appellant during that period. Secondly, as noted above, there was no suggestion made that the 2015 tax return was falsified. In contrast, the veracity of the 2016 and 2017 group certificates was in issue and the primary judge found that they were false documents.

161    The appellant also submitted that:

(1)    there is evidence showing that the respondent retained the tax refund payable to the appellant for FY2015;

(2)    the respondent’s evidence was that he paid the appellant in cash. Hence, the fact that the respondent paid withholding tax in respect of the appellant in FY2015 is hardly evidence corroborating the respondent’s evidence that the appellant was paid in cash in circumstances where the respondent had other reasons to pay withholding tax to the Australian Taxation Office, including his sponsorship obligation to the Department of Home Affairs; and

(3)    it was not inherently likely that the appellant’s wages prior to 26 June 2015 were paid in cash because of evidence showing that the respondent paid withholding tax to the Australian Taxation Office, given the arguments outlined above.

162    None of these matters suggests that the primary judge’s conclusion at J[242] that he was not “persuaded, on the basis of the evidence available, that the 2015 tax return does not represent the true position, namely that the [appellant] was paid wages by Platinum prior to 26 June 2015” was contrary to incontrovertible facts, uncontradicted testimony or compelling inferences; or glaringly improbable.

163    Ground 6 should be dismissed.

F.    Notice of contention

164    The respondent filed a Notice of Contention concerning the proper construction of s 323 of the Act. As we propose to dismiss the appeal, it is unnecessary to consider the Notice of Contention.

G.    Application to adjourn the hearing of the appeal

165    At the commencement of the hearing of the appeal on 16 February 2023, the appellant applied for an adjournment of the hearing on the basis that he wished the counsel formerly retained by his former solicitor to conduct the appeal and that counsel could not appear because her instructions had been withdrawn. The respondent opposed the application. We refused the application and indicated that we would provide reasons for that refusal as part of these reasons for judgment. Those reasons are as follows.

166    The Court has power to grant an adjournment of an appeal under r 1.32 of the Federal Court Rules 2011 (Cth). That power is to be exercised in a manner which best promotes the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42] (Collier, Griffiths and Mortimer JJ). The overarching purpose includes as objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court’s overall caseload; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. As the Full Court (Katzmann, Derrington and Anastassiou JJ) explained by reference to s 37M in Alhalek v Quintiliani trading as Kells Lawyers [2021] FCAFC 139 at [26] (Katzmann, Derrington and Anastassiou JJ), no litigant has an entitlement to an adjournment for the obvious reason that the business of the Court must be managed with the objective of efficient organisation in the interests of all litigants that come before the Court. Similarly, in Gabrielle v Abood (No 2) [2023] NSWCA 28, Bell CJ (Kirk and Adamson JJA agreeing) stated at [6], in connection with applications for adjournments of hearings of appeals in the Court of Appeal of the Supreme Court of New South Wales:

… When matters are set down in this Court there is an expectation that they will be heard on the day on which they are set down. Matters are set down having regard to the demands of the Court, including other cases and litigants, and it is a significant and inefficient waste of Court resources where matters are required to be adjourned. That is not to say that in a sufficiently meritorious case, adjournment applications will not be entertained but they are typically only entertained and granted where there are cogent reasons for doing so.

167    The views expressed by Bell CJ are equally applicable in this Court. Further, the inefficiencies and waste of Court resources which flow from such adjournments may be greater in this Court when members of the Court travel from other States to sit at a hearing.

168    The particular matters that we considered in the exercise of the discretion to refuse the adjournment were as follows.

169    First, the appellant’s explanation for seeking an adjournment did not provide a sufficiently cogent reason to adjourn the hearing. The essence of the appellant’s evidence on the application was that: he has a poor command of the English language and requires assistance with email communications; on or about 9 or 10 February 2023, the appellant sent an email that had been prepared on his behalf by a Mr Albert Gassibe to the appellant’s solicitor in which instructions were given terminating the solicitor’s retainer; the appellant was unaware of the effect of that email at the time it was sent and did not intend to terminate his solicitor’s retainer; during the weekend of 11 and 12 February 2023 the appellant discovered the true effect of the email; subsequently the appellant and a Mr Fadi Assas contacted the solicitor by telephone during which call the appellant asked the solicitor to represent him and the solicitor responded that he had already filed a Notice of Intention to Cease to Act and it was too late for him to withdraw it.

170    We were not persuaded that this was a sufficiently cogent reason, particularly in circumstances where there was no evidence from Mr Gassibe, the appellant’s solicitor or Mr Assas, and the email said to contain the instructions terminating the solicitor’s retainer was not in evidence.

171    Secondly, an adjournment would have caused prejudice to the respondent, in circumstances where: the appeal was set down on 12 December 2022 for hearing on 16 and 17 February 2023; the respondent had engaged solicitors and counsel, had responded to detailed submissions filed on behalf of the appellant, and was ready to proceed with the hearing of the appeal; and an adjournment would have required the respondent to incur further costs and the recovery of any costs would have required an order from the Court displacing the usual position that costs are not payable in proceedings in relation to matters arising under the Act.

172    Thirdly, the prejudice to the appellant in not being represented by counsel at the hearing of the appeal was significantly ameliorated by the existence of detailed written submissions prepared by counsel and filed and served on behalf of the appellant. As noted previously, at the hearing of the appeal, the appellant relied upon the written submissions that had been prepared by his former counsel and the respondent relied upon his written submissions in response. There were no oral submissions.

173    Finally, granting the adjournment would have had prejudicial consequences for the Court and for other litigants, whose interests must be considered see: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at 321 [51] (French CJ, Kiefel, Bell, Gageler and Keane JJ); Alhalek at [26]; Gabrielle at [6]. In particular, the prejudice to other litigants awaiting hearing dates which would have flowed from the vacation of the hearing on 16 and 17 February 2023 and the allocation of fresh dates.

H.     CONCLUSION

174    For the reasons set out above, the appeal should be dismissed. The respondent indicated that he wished to be heard on the question of costs. We will make orders dismissing the appeal and providing an opportunity for the parties to be heard on costs.

Associate:

Dated:    5 May 2023