FEDERAL COURT OF AUSTRALIA

Trifunovski v ACE Insurance Limited [2012] FCA 858

THE COURT ORDERS THAT:

1.    The respondent be granted leave to file in Court an interlocutory application seeking to have part of the judgment of 31 July 2012 recalled.

2.    The respondent be granted leave to file in Court the affidavit of Peter John Elliot Arthur sworn on 7 August 2012.

3.    The Respondent pay to the Applicant within 28 days:

(a)    the sum of $69,766.44 in respect of annual leave;

(b)    the sum of $7,459.87 in respect of long service leave;

(c)    the sum of $48,533.59 in respect of interest; and

(d)    the sum of $2,000 in respect of the Applicant’s one fifth share of the penalty imposed on the Respondent.

4.    To the extent necessary, leave to appeal is granted in respect of the orders made by Justice Perram on 18 November 2011 and order 3 hereof.

5.    The Applicant is to file and serve his submissions on costs by 4:00pm on Monday, 20 August 2012.

6.    The Respondent is to file and serve its submissions on costs by 4:00pm on Monday, 27 August 2012.

7.    The respondent be granted leave to file in Court an interlocutory application seeking that the payment of moneys be stayed pending its appeal.

8.    The matter be listed on 22 August 2012 before the Registrar for the production of documents referred to in prayer 9.

9.    On 22 August 2012, the applicant produce to the Court:

(a)    Income tax returns and business activity statements for the applicant for the 2009/2010, 2010/2011 and 2011/2012 financial years.

(b)    Notices of assessment for the applicant for the 2009/2010, 2010/2011 and 2011/2012 financial years.

(c)    All statements for any bank account held by the applicant for the period 1 January 2011 to date.

(d)    All documents recording any interest in real property held by the applicant in the period 1 January 2011 to date.

(e)    All documents recording any interest in any shareholding in or other securities in any listed public company or trust held by the applicant in the period 1 January 2011 to date.

(f)    All documents recording the liabilities of the applicant in the period 1 January 2011 to date.

10.    The matter be stood over for the hearing of the stay application on Tuesday 28 August 2012 at 9:30 am.

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

REASONS FOR JUDGMENT

1    In these longstanding proceedings, five former agents of the Combined Insurance Company of America (‘Combined’), the Australian business of which, following a scheme of arrangement, is now conducted by ACE Insurance Limited, had sought to recover employee entitlements said to be due to them in the event that it was concluded that the relationship between Combined and them was one of employment. Following a long trial, I determined on 25 October 2011 the relationship was one employment: see ACE Insurance Limited v Trifunovski (2011) 200 FCR 532. When that judgment was delivered there remained a question of the determination of the quantum of the entitlements of the agents and also the question of what, if any, civil penalty should be imposed.

2    On 31 July 2012 I delivered judgment in those matters: see ACE Insurance Limited v Trifunovski (No 2) [2012] FCA 793. One of the questions which arose in each of the agents’ cases and by reason of the wording of the award was the final salary that each agent had received immediately prior to the cessation of the employment relationship. This required, in the process of quantification, a determination by me in each agent’s case of their final salary.

3    At [50] of the reasons in my second judgment, I determined that the final salary of Mr Trifunovski was $11,172.26 per week. This conclusion was reached following an examination of the submissions made by the parties and the evidence which appeared to be before the Court. There were some difficulties with both those submissions and that evidence.

4    Following delivery of judgment, Combined has applied to have me recall [50] of the reasons for judgment, together with certain parts of [46]-[49] and [51]. [46]-[49] are, in a sense, ancillary to the conclusion reached in [50]. At [51], I used the figure at [50] to conclude that Mr Trifunovski was owed $325,671.38 in accrued annual leave. The basis upon which Combined seeks to have those reasons recalled is that, in effect, they proceed on an erroneous understanding of the material which was before the Court.

5    Mr Trifunovski had originally sought only the sum of $2,127.06 per week by way of final salary. However, Combined’s written submissions had suggested, for reasons that it is not necessary to go into in detail, that Mr Trifunovski earned the much higher figure of $127,683 during the first 11 weeks and three days of the 2005-2006 financial year. It was that higher figure which had lead me, in [50] and the paragraphs which preceded it, to the figure of $11,172.26 per week.

6    In fact, with further explanation of the evidence and of the submissions, it is apparent that that figure is too high. In fact only two figures compete for the field. One is a weekly figure of $2,393.36 and the other a weekly figure of $2,625.34. These numbers can be derived from an examination of a document which was before me at trial and which was mentioned at page 429 of the transcript.

7    In my opinion, that document reveals the net income of Mr Trifunovski over a 12 month period was $124,454.93 and, dividing that by 52, one arrives at the figure of $2,393.36. It is, in my opinion, that which should be used rather than, for example, the total payable sum divided by 52 (which was the original source of Mr Trifunovski’s submitted figure of $2,127.06) or by reference to the short period in the first half of the new financial year in 2005. Accordingly I conclude that the appropriate figure is $2,393.36.

8    I am satisfied, having regard to the materials which have been placed before me, that the assessment of Mr Trifunovski’s final salary, which was undertaken at [48] and [50] of my second judgment, proceeded upon an error induced by the form of the evidence and the submissions which were before me and accordingly it follows that I have jurisdiction to recall my reasons: see Wentworth v Rogers [2002] NSWSC 921 at [3]-[9] and OzEcom v Hudson Investment Group [2007] NSWSC 1441.

9    I propose, in those circumstances to recall my conclusion at [50] of my second judgment and to conclude, instead, that the final salary of Mr Trifunovski was $2,393.36. I will also recall the conclusion at [51] and conclude that Mr Trifunovski is owed $69,766.44 in accrued annual leave.

Associate:

Dated:    15 August 2012