FEDERAL COURT OF AUSTRALIA

Prajapati v Narshima Tradings Pty Ltd (t/a Ziggy’s Cafe) [2017] FCA 1563

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time in which to bring the application for leave to appeal.

2.    Leave to appeal be refused.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for an extension of time and leave to appeal from orders made on 2 November 2016 by a judge of the Federal Circuit Court of Australia. His Honour granted an application by the second respondent, Mr Harihar Prajapati, to summarily dismiss the entirety of an application filed in that Court by the applicant, Ms Hemali Prajapati. The summary dismissal orders were made pursuant to s 17A(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act).

2    It is convenient to refer to each of the natural persons involved in these proceedings by their first names, as each has the same surname. Harihar is the brother of Hemali’s then husband, Mr Vikram Prajapati. Harihar was therefore Hemali’s brother-in-law.

3    The application for an extension of time arose because the application for leave to appeal from the primary judge’s interlocutory orders was filed within the 21-day time limit for an appeal, rather than the 14-day time limit for leave to appeal. This was described as being a “representational error”, which I take to be a candid admission of error on the part of Hemali’s legal representatives. The respondents did not seek to be heard on the extension of time application, and therefore did not oppose time being extended. Because of the candid explanation proffered and responsibility taken by Hemali’s legal representatives, as well as the lack of any prejudice occasioned by the small delay (perhaps accounting for the lack of opposition, which is also relevant), it is appropriate to grant the extension of time sought.

4    As to the application for leave to appeal, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400 accepted a line of authority as to the general guidance that a court should accept in the exercise of the discretion to grant leave to appeal. That guidance comes down to two tests:

(1)    whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and

(2)    whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong.

5    The two tests are not in separate compartments, but are cumulative and also bear upon one another. The degree of doubt that is sufficient in one case may be different from that required in another.

6    On the issues raised and argued in this case, the live issue to be determined is whether any of the proposed grounds of appeal are sufficiently arguable to warrant the grant of leave to appeal, with little independent work remaining for the second limb of substantial injustice. There can be no substantial injustice in this case if the appeal has insufficient prospects of success. That is especially so as the application for leave to appeal was heard at the same time as any appeal in the event that leave was granted, leaving nothing additional to be furnished by way of evidence or submissions and the opportunity for the Court to assess the merits of the appeal in full.

Overview

7    Hemali’s application in the Court below, which was pleaded by way of a statement of claim dated 11 February 2015, sought declarations and pecuniary penalties for contraventions of the Restaurant Industry Award 2010 (Cth), and thereby contraventions of ss 44, 45 and 536 of the Fair Work Act 2009 (Cth) (FW Act). She also sought compensation for unpaid wages. Hemali sought that relief against the first respondent, Narshima Tradings Pty Ltd, trading as a restaurant known as Ziggy’s Café located at the Broadway Shopping Centre in Sydney, to be referred to in these reasons as the restaurant. Hemali also sought the same relief against Harihar in an accessorial capacity as the managing director of the restaurant, asserting that he was knowingly involved in the alleged contraventions.

8    It was not in dispute that Hemali had mostly worked seven days a week, 14 hours per day over a period of about six months between March and September 2012 at the restaurant. However, it was disputed by the respondents that Hemali had ever been an employee of the restaurant, as opposed to a family member working in a family-owned and family-run restaurant. In substance, Harihar’s summary dismissal application succeeded because the primary judge found that there was no reasonable prospect, on the basis of Hemali’s pleadings and evidence, that she would be able to establish that she was an employee of the restaurant, such that the matter should not proceed to trial.

The pleadings and evidence relied upon by the primary judge

9    Because the primary judge determined the summary dismissal application upon the basis of Hemali’s affidavit and pleadings and entirely disregarded the evidence for the respondents, it is necessary to summarise what those documents proved and asserted in order to clearly understand and appreciate the details of Hemali’s case as summarily dismissed.

The applicant’s evidence

10    Hemali’s evidence, as is relevant to the issues before the primary judge and for the purposes of this application, was that she married Vikram in an arranged marriage ceremony in India on 12 February 2011. He moved to Australia after their wedding ceremony and she moved to live with him in Sydney almost a year later in January 2012. She lived in a suburb of Sydney with Vikram, Harihar, Harihar’s wife and two children and the parents of Vikram and Harihar.

11    Hemali described Vikram as very controlling and violent and described how he treated her in that manner during the time they were together. Shortly after arriving in Australia, she heard Vikram and Harihar talking about buying a restaurant. She believed that they bought the restaurant in late February 2012.

12    Hemali described the set-up of the restaurant. She said that Harihar was at the restaurant every day and that he supervised and gave staff instructions. There were three chefs and three or four staff working on the floor. Another woman worked at the takeaway area and took orders from customers. Staff worked different shifts and she was not sure what hours they were worked and how many people in total worked at the restaurant. She saw a roster of shifts for the week on a piece of paper on the wall and sometimes her name was on the roster.

13    In about March 2012, Vikram said to Hemali words to the effect of, “Ok we’re going to go to the restaurant”. When they arrived at the restaurant, Vikram said to her words to the effect of, “you’re going to work in the restaurant making drinks and taking orders”.

14    Hemali described the difficulty she had working at the restaurant and the directions that were given to her by Harihar as the restaurant manager. She also described Vikram criticising the inadequacy of her work performance later in March 2012, and how upset she became at this. As a result, she did not return to work at the restaurant for about a week. She overheard her mother-in-law say to somebody that she could not stay at home and that she needed to do a job, because “we need to save money. It doesn’t matter what she does, clean, whatever”.

15    Hemali said that she returned to work at the restaurant the day after overhearing her mother-in-law, and worked there almost every day after that until 12 September 2012, even when she was feeling sick. On the first day that Hemali returned to work, Vikram went with her and Harihar into the restaurant and said words to the following effect:

Ok you’re going to start working in the kitchen. You don’t need to come outside. You stay in here and the cleaning section. You don’t need to talk to other staff, you just do your job. You have to wear a cap on black clothing every day.

16    Each day, Harihar’s wife drove Hemali and Vikram to the restaurant, arriving between 8.00 am and 8.30 am each morning. Vikram went downstairs to work at an alcohol retailer, while Hemali and Harihar went to work in the restaurant. Harihar’s wife would take Harihar and Hemali home from the restaurant most evenings at about 11.00 pm.

17    Harihar gave Hemali instructions about what she had to do in the restaurant when she started working in the kitchen. Hemali listed the tasks that she was required to carry out in the order in which she performed them. She said that Harihar would constantly monitor her and, when she appeared to be free, he would instruct her to clean the walls and the fridge. She gave descriptions of how he told her to carry out particular tasks, including when the restaurant became quiet around 3.00 pm each day. She described Harihar yelling at her to work faster. She described having to tell someone when she was going to the bathroom.

18    On 10 September 2012, Vikram told Hemali that the business was not going well and that she was to go back to India with his parents as they had lots of money in India and they could start their own business there. He told her that he had booked a ticket for her to leave on 13 September 2012. She said that the last day she worked in the restaurant was 12 September 2012.

19    Hemali said that she did not see any information about employee rights in the restaurant, including any information about the national employment standards or any applicable awards. She said that she was not paid any wages and was not allowed to share in the tips earned by the restaurant. She said that she did not have any superannuation from working at the restaurant.

20    During the time that she worked at the restaurant, Vikram said to Hemali on three separate occasion words to the effect of, “don’t ask my brother about money or anything, just do your work”. Hemali said that she thought she should be paid for the work she was doing at the restaurant, but was too scared to say anything.

21    Nothing in Hemali’s affidavit made any reference to any conversation or documentation about being an employee, beyond working with others who it seems were likely to have been employees, and performing similar, or at least not dissimilar, work. Conversations, directions or orders were apparently confined to the tasks required to be carried out, including criticisms. She did not ever raise the topic of being paid, although she said that was due to being afraid to do so.

Pleadings in the statement of claim

22    The causes of action relied upon in Hemali’s statement of claim, dated 11 February 2015, were pleaded by reference to the parties, the award entitlements that were said to have been breached, and the involvement of Harihar in those asserted breaches. That led to Hemali pleading the loss suffered and the relief which she sought. The asserted breaches were pleaded upon the effective assumption of an employment relationship existing or otherwise having been established. For present purposes, it is therefore only necessary to reproduce the limited pleadings by which the existence of an employment relationship was asserted, rather than was assumed to exist, as follows (emphasis as per original):

1.    The applicant:

a.    Was a national system employee within the meaning of the Fair Work Act 2009 (Cth) (FW Act);

b.    Was employed by the first respondent from 1 March 2012 until 12 September 2012 (employment period) on a casual basis as a Kitchen Attendant;

c.    Performed work from 8 am to 10 pm seven days a week;

d.    Was employed and supervised by the second respondent;

e.    Was covered by and entitled to the application of the Restaurant Industry Award 2010 (Award); and

f.    Undertook duties and responsibilities commensurate with Kitchen Attendant Grade 1, under the Award during the employment.

2.    The first respondent was at all material times:

a.    A company incorporated under the provisions of the Corporations Act 2001 (Cth);

b.    Was able to be sue [sic] and be sued by its corporate name;

c.    Was a ‘national system employer’ within the meaning of the FW Act;

d.    Operated in the hospitality industry to which the Award applied in relation to the employment of the applicant.

3.    The second respondent at all relevant times:

a.    Was an officer of the first respondent;

b.    Was the managing director of the second respondent;

i.    By being responsible for its carriage, control and conduct;

ii.    By ensuring that it complied with its legal obligations under the FW Act and the Award.

c.    Was involved in employing the applicant;

d.    Was the day to day controller of the first respondent; and

e.    Directed the applicant in her day to day work.

23    It may immediately be observed that there was no pleading of material facts and circumstances by which the existence of a contract of employment was said to have been brought into existence. Rather, it was simply baldly asserted at [1(b)] of the statement of claim, reproduced above, that Hemali was employed by the restaurant. The reference at [1(d)] to having been employed by Harihar should be taken beneficially to be a pleading either that she was employed by the restaurant and supervised there by him, or that that he had caused her to become an employee of the restaurant, rather than an assertion that he was the employer, that having never apparently been part of her case. Importantly, there is no reference in the statement of claim to Hemali having become an employee by reason of any act on the part of Vikram, as opposed to the conduct of Harihar. As will become apparent, that distinction is of considerable importance.

24    The approach of asserting the existence of an employment relationship as a conclusion, rather than pleading the basis for its existence, might not have been a problem in a case in which the existence of an employment relationship was not a live issue. It is a form of pleading that is commonly used in a situation of undisputed employment in which the issues in dispute concern only employment rights or entitlements and not the foundational fact of an employment relationship existing at all. Even then, a reference to a contract of employment in some form is usually at least pleaded, along with the date of such a contract and/or the date of commencement of work pursuant to such a contract. In such cases, the status of being an employee is routinely admitted in a defence despite material facts and circumstances not necessarily having been fully pleaded. However, on the view taken by the primary judge, the absence of such a pleading, in conjunction with the shortcomings in the evidence relied upon, taken at its highest, was a fatal defect in this case. His Honour formed the view that Hemali had no reasonable prospect of being able to prove at trial that she was an employee of the restaurant, as baldly asserted in the passages quoted above. The key issue for determination is whether his Honour erred in reaching that conclusion or in the process of reaching it.

25    While it is not strictly necessary to consider the defence pleaded for the purposes of determining this appeal, it should be observed that, in an amended defence dated 28 April 2015, the restaurant denied that Hemali was an employee in the period alleged, or at all. It follows that the status of Hemali as an employee was clearly an issue for 11 months before Harihar filed his application for summary dismissal by way of an application in a case dated and filed 31 March 2016.

The relevant legal principles

26    The dispute between the parties turned on the application of well-established principles both as to employment law and summary dismissal. The summary dismissal provisions in s 17A(2)(b) of the FCCA Act are relevantly identical to those in s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Accordingly, it was common ground that the principles established by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 applied. Those principles relevantly include that:

(1)    the exercise of summary dismissal powers should be attended with caution and great care: Spencer at [24]; and

(2)    section 31A(2) requires this Court to make a practical judgment as to whether the applicant has more than a “fanciful” prospect of success.

27    The practical judgment required may be one of law or fact, or of mixed law and fact. Where there are factual issues capable of being disputed, the Court should not award summary dismissal on the basis of a view that the applicant is unlikely to succeed on the factual issue. A proceeding should also not be necessarily summarily dismissed where the success of the proceeding depends on propositions of law that appear to be precluded by existing authority, unless the success of the proceedings is critically dependent on a proposition of law that would contradict a binding decision of this Court: Spencer at [25].

The primary judge’s reasons

28    The primary judge’s reasons did not feature very prominently in the application for leave to appeal, and thus in the appeal if leave were granted in this instance, either in written or oral submissions, mainly because the applicant’s case was that his Honour had made a fundamental and global error as to the existence of a contract of employment. Much of the complaint made focussed on what his Honour was said to have failed to say or do, rather than by placing reliance on any overt error.

The proposed grounds of appeal

29    At the hearing of the application, counsel for Hemali relied upon the following proposed grounds of appeal, which were enlarged somewhat over those previously advanced without objection by the respondents:

1.    Whether the primary judge correctly applied the principles in Spencer v Commonwealth (2010) 241 CLR 118.

2.    Whether the primary judge misunderstood that the onus was on the second respondent to demonstrate that the proceedings do not have reasonable prospects of success pursuant to s17A(2)(b) of the Federal Circuit Court Act 1999 (Cth).

3.    Whether the primary judge erroneously found that there was no intention to create legal relations.

4.    Whether the primary judge in determining whether a real issue of fact existed such as to preclude summary judgment, erroneously failed to draw all reasonable inferences in favour of the appellant.

30    The above proposed grounds of appeal are each styled as a proposition in the form of a question. They will be treated as asserting a corresponding error on the part of the primary judge, as reflected in the headings below.

Proposed ground 1 – application of the principles in Spencer v The Commonwealth

31    Counsel for Hemali accepted that the primary judge correctly identified Spencer as the “seminal authority” on the modern test to be applied for summary dismissal under s 31A(2) of the Federal Court Act, and therefore for the parallel provision in s 17A(2)(b) of the FCCA Act. Reliance was placed on [25] in Spencer, quoted by the primary judge at [49] of his Honour’s reasons, for the proposition that where there were factual issues capable of being disputed and in dispute, summary dismissal should not be awarded. Reliance was placed on Mogilevsky v Leroy [2017] FCAFC 52 at [32], Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46], Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [31] and Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [45] in support of an argument that this was a case in which there was the kind of dispute requiring resolution at trial so as to preclude summary dismissal.

32    It was submitted on behalf of Hemali that the existence of elements of the formation of contract, including whether or not there was an intention to create legal relations, was not a question of law that should be determined summarily where there were numerous inferences that could be drawn from the evidence. It was therefore submitted that the primary judge should have taken Hemali’s evidence at its highest and, if there were competing inferences that might have been drawn, then only adopted those most favourable to her. It was submitted that his Honour instead erred by failing to draw an inference in Hemali’s favour that Vikram had authority to bind the restaurant contractually.

33    The submissions in support of this ground of appeal relied upon the evidence in Hemali’s affidavit that she believed that Vikram and Harihar had bought the restaurant together. While it was accepted that this was weak evidence, it was submitted that there was no basis upon which his Honour could exclude the reasonable possibility that Hemali might lead admissible evidence at trial of Vikram’s legal interest in the restaurant. It was asserted that such a fact, if proven at trial, was capable of giving rise to an inference that he had authority to bind the restaurant contractually, noting at this point that the case sought to be prosecuted did not assert that she was engaged by the restaurant via Vikram but, rather, via Harihar. This reasoning was said to be supported by the evidence at [20] of Hemali’s affidavit of Vikram remonstrating with her about the poor quality of her work in the restaurant. It was therefore submitted that his Honour erred in reaching his conclusion at [102], where his Honour stated as follows:

It is important to also note that, while the applicant’s statement says that her then husband had some “ownership” of the restaurant business, there is nothing to indicate that he had any authority, or capacity, to enter into a contract of employment on behalf of the first respondent, let alone bind it to any such contract.

34    Counsel for the respondents advanced three arguments in answer to the proposition that Spencer had been misapplied by the primary judge, which were described by him as the “three limbs” of the argument raised on behalf of the applicant in reply submissions.

35    As to the first limb of the applicant’s argument, the respondents submitted that the substance was an assertion that it is inappropriate for a court to deal with an issue on a summary dismissal application by way of summary dismissal merely because it may involve the Court forming a view about a mixed question of fact and law. The respondents submitted that this contention was incorrect when regard was had to what was said in Spencer at [25] in the first two sentences, namely that s 31A(2) of the Federal Court Act (and thus s 17A(2)(b) of the FCCA Act) “requires a practical judgment … as to whether the applicant has more than a fanciful prospect of success. That may be a judgment of law or of fact, or of mixed fact and law.” Thus, it was submitted, the existence of a mixed question of fact and law does not necessarily preclude the practical judgment necessary for summary dismissal.

36    It was also submitted for the respondents that the primary judge was entitled to assess the evidence and pleadings against the test for disputed contracts of employment described by the High Court in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 at [25]-[26], as quoted and relied upon in his Honour’s reasons, and then applied to this case at [92]-[107].

37    The respondents’ submission on this point should be accepted. Spencer makes it clear that not all questions of fact, law or both, must be left to be determined at trial, but rather only those for which an adjudication is truly required: see Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45]. That is, if a legal or factual issue really could go either way, even if one view appears to be the more compelling, then ordinarily that should not form part of the basis for summary dismissal. The primary judge was entitled to assess whether or not there was any arguable case for the factual substratum that Hemali needed to establish for her case to have any reasonable prospect of success. His Honour was entitled to reach an adverse conclusion as a result of that assessment, and thereby find that the test for summary dismissal in Spencer had been met.

38    The submissions by counsel for the respondents on what he described as the second limb advanced on behalf of the applicant as to why Spencer was said to have been misapplied, namely the assertion that the primary judge had failed to draw all inferences favourable to Hemali, was described as crossing over with proposed ground 4 of appeal. The substance of the submissions for the respondents was that the primary judge was not required to draw all inferences favourable to the applicant, but rather only reasonable inferences in her favour. It was further submitted that none of the inferences now relied upon were urged on the primary judge. Be that as it may, counsel for the respondents then addressed the inferences that it was said on behalf of Hemali should have been drawn.

39    The first inference was to the effect that Vikram was in fact a part-owner of the restaurant and therefore had a capacity to bind the restaurant in contract with Hemali. Quite apart from the assertion by the respondents that the drawing of this inference was not sought below, which appears to be correct, the basis for the inference was not a fact, but rather only a belief, that Vikram was a part-owner of the restaurant. It was therefore submitted that it was not even an available inference, let alone a reasonable inference, in the absence of any proven factual substratum. That submission must be accepted. Putting aside any issue as to the primary judge not being asked to draw such an inference, it should be observed that even if asked, his Honour would have had no proper factual foundation to do so. Inferences must have a factual foundation in the evidence to be adduced at trial before they may properly be drawn. That is all the more so when Hemali brought a case against the restaurant and against Harihar, but did not bring a case against Vikram. The primary judge could not have been asked to draw an inference in support of a case that was never advanced and that, in any event, lacked the necessary factual substratum being deposed to.

40    The second inference that was said not to have been drawn by the primary judge was that there were features in Hemali’s evidence that suggested that there was a commercial context to the relationship by which she performed work at the restaurant. It was submitted on behalf of the respondents that the problem with this suggestion is that it involved combing through the primary judge’s reasons for snippets of evidence that were not specifically referred to, rather than paying heed to the conclusions that his Honour reached to the effect that he was not satisfied, even taking the evidence at its highest, that evidence establishing any such commercial relationship was available. His Honour referred to the absence of any evidence that Hemali had made any approach seeking employment and there being no evidence of any offer of employment being made. Hemali had been told to work at the restaurant by her husband, Vikram, but there was no suggestion of any discussion about payment, hours worked, or any other terms or conditions. That view of the evidence is supported by reading Hemali’s affidavit in full. There is simply not the slightest hint of any commercial relationship to be had when the affidavit is read as a whole, rather than in parts taken out of context. The only conclusion able to be reached on the evidence taken at its highest, and not even constrained by a threshold of reasonableness, was that there was no proper foundation for inferring the existence of any commercial relationship at all. The primary judge simply had no proper basis for a conclusion to the contrary. The harsh treatment of Hemali in a family context cannot change that.

41    The so-called second limb of this proposed ground must therefore fail.

42    The submissions by counsel for the respondents on what he described as the third limb advanced on behalf of the applicant as to why Spencer was said to have been misapplied, namely the assertion that his Honour appeared to have regarded the material before the primary judge as though that was all the evidence upon which Hemali would rely at trial, took issue with that characterisation. It was pointed out that the pleadings had closed almost a year before the summary dismissal application was made and that no evidence in reply had been filed or foreshadowed. Counsel for the applicant indicated that there had been disputes about subpoenas, and that the filing of reply evidence had not been ruled out. The position as to reply evidence, and therefore the completion of evidence upon which the primary judge could adjudicate, seemed to be intractably neutral in these circumstances, in that it did not appear to have been either expressly foreshadowed or ruled out. However, given that the position as to reply evidence is not crystal clear, it is best not to place any reliance on the reply evidence aspect of the argument for the respondents.

43    Counsel for the respondents further submitted that the primary judge did not, in any event, proceed upon any concluded view that this was all the evidence that might be led at trial. Rather, his Honour stated at [59] of his reasons that the determination of the summary dismissal application should proceed with caution and focus on two things: first, Hemali’s pleadings and evidence; and, secondly, whether she had been given a fair and reasonable opportunity to present her case. It was submitted on behalf of the respondents that if there was further evidence that she would have relied upon at trial, including by way of reply evidence, then she had ample opportunity to advance that between the date of the summary dismissal application being filed on 18 May 2016 and that application being heard on 13 July 2016, but did not do so. In effect, the respondents were submitting that neither the primary judge, nor this Court, should proceed upon the basis of nothing more than speculation as to what further evidence might have been adduced at trial, provided the applicant had sufficient opportunity to demonstrate, or at least refer to, any further evidence that would or might be relied upon. That simply did not happen.

44    This aspect of the submissions for the respondents should be accepted. There was nothing wrong, in all the circumstances, with the primary judge assessing the prospects of Hemali’s case succeeding based on what she had put forward at that time, given she had ample opportunity to at least indicate that further evidence might be adduced at trial, with some indication as to what that evidence might be, or what it might prove. That is especially so as there was not even a submission before his Honour as to any further evidence that was going to be relied upon, let alone any indication of what that evidence might be or might establish. At the hearing of this application, vague suggestions were made of further evidence to indicate the capacity that Vikram had to bind the restaurant in employing Hemali. However, as counsel for the respondents pointed out, it had only ever been pleaded that Harihar was the person responsible for allegedly retaining her as an employee. No part of the case as pleaded suggested such a role for Vikram.

45    No error on the part of the primary judge in the application of Spencer has been demonstrated. Leave therefore cannot be granted to rely upon this proposed ground of appeal.

Proposed ground 2 – application of the onus on the applicant for summary dismissal

46    The substance of this proposed ground of appeal is that the primary judge incorrectly imposed an onus upon Hemali to show why summary dismissal should not take place, rather than correctly imposing the onus on the party seeking that outcome to show that the case for summary judgment had been made out. The cornerstone of this submission is the lack of an express reference to the respondents bearing that onus. Reliance is placed on the primary judge reproducing an argument advanced before his Honour on behalf of the respondents to the effect that Hemali bore the burden of proof of the objective intention to create a contract between herself and the restaurant.

47    A careful and thorough consideration of the entirety of the primary judge’s detailed and careful reasons (which total 131 paragraphs over 32 pages) does not support the conclusion urged upon this Court. While it is true that there was no express statement of the onus for the summary dismissal application being borne by the respondents, that ignores the fact that his Honour clearly stated a number of times that it was the respondents who were seeking summary dismissal and equally clearly stated the test of absence of a reasonable prospect of successfully prosecuting the proceedings that had to be met.

48    There is no reason to doubt that his Honour fully appreciated that the respondents had to convince him that the test had been met. The competing arguments were considered and the necessary conclusions were reached. There is no foundation for the suggestion that his Honour inverted the onus for establishing that the basis for summary dismissal had been made out. Leave therefore cannot be granted to rely upon this proposed ground of appeal.

Proposed ground 3 – error as to intention to create legal relations (employer-employee)

49    The substance of this proposed ground of appeal is an assertion that the primary judge had incorrectly regarded the existence of a family or domestic relationship as something that Hemali needed to exclude at the interlocutory stage of a summary dismissal application. This was said to have occurred despite his Honour correctly directing himself on this issue in his reasons at [93], where his Honour said, directly after reproducing [25]-[26] from Ermogenous:

In this light, both parties before the Court agreed that the intention of the parties is to be assessed on an objective basis as derived from the state of affairs between the parties, to ascertain whether there was any intention to create a binding contract of employment.

50    The paragraphs of the primary judge’s reasons that followed the above passage show that his Honour conscientiously carried out that objective assessment by reference to the material before him. There is nothing that in any way supports the proposition that his Honour imposed any obligation on Hemali to exclude the existence of a family or domestic relationship. Indeed, his Honour rejected a submission made on behalf of Harihar, citing Ermogenous at [26], to the effect that Hemali had to, at that stage, meet a burden of proof that a contract of employment was formed between her and the restaurant. His Honour said at [94] that the relevant question was whether there were reasonable prospects of her being able to discharge such a burden based on her pleadings and statements. His Honour carefully considered the evidence and concluded that this did not stand in the way of summary judgment. His Honour found at [101] that there was nothing in Hemali’s evidence that provided a basis for arguing that she entered into any agreement with the restaurant or Harihar (it never having been her case that any such agreement was entered into with or via Vikram).

51    There is simply no foundation for the suggestion that the primary judge made any error that is express, implied, or able to be inferred, on the question of Hemali’s intention to enter into contractual relations, in the sense of assessing whether there was a reasonable prospect of that aspect of her case being able to be made out. This proposed ground of appeal is therefore without merit. Leave cannot be granted to rely upon it.

Proposed ground 4 – failure to draw reasonable inferences in favour of the applicant

52    The substance of this proposed ground of appeal was amply addressed above at [38]-[40] as part of the second limb of proposed ground 1. The further written submissions on this proposed ground listed the adverse inferences said to have been drawn by the primary judge, and then listed the positive inferences that it was said were open to his Honour to have drawn. This approach misconceives the role of this Court in dealing with an appeal and thus with a proposed appeal. It does not address the need to demonstrate error. It is not to the point that his Honour might have reached different factual conclusions by drawing different inferences, noting that the conclusions his Honour reached are, in fact, difficult to fault. To go anywhere, this proposed ground has to show error in the approach taken by the primary judge. No real attempt was made to surmount that hurdle, as opposed to suggesting alternative conclusions his Honour might have reached, which is not of itself any basis for finding error.

53    It has not been established that there was any failure, either in the required legal error sense, or at all, on the part of the primary judge to draw reasonable inferences in favour of Hemali.

Conclusion

54    The decision of the primary judge was fairly open to his Honour. Indeed, it is difficult to see how any different conclusion could safely have been reached in light of the evidence and pleadings before his Honour, which did not come close to being able to support any realistic prospect of establishing at trial the case she needed to make out that she was an employee. That conclusion overwhelms any issue of substantial injustice arising from a theoretical supposition that his Honour had erred. The application for leave to appeal must therefore be dismissed.

55    The respondents did not seek an order for costs in either written or oral submissions. I would not, in any event, have been inclined to entertain such an application, as the circumstances are not sufficient to overcome the limitation contained in s 570 of the FW Act. The appropriate order is that there be no order as to costs.

Associate:

Dated:    21 December 2017