FEDERAL COURT OF AUSTRALIA

Parker v HG Innovations Pty Ltd (No 2) [2020] FCA 906

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court in Parker v HG Innovations [2019] FCCA 278 made on 11 February 2019 be set aside.

3.    The application filed on 17 August 2018 in proceeding BRG 857 of 2018 be remitted to the Federal Circuit Court for further hearing and determination.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from an interlocutory decision of a Judge of the Federal Circuit Court of Australia in Parker v HG Innovations [2019] FCCA 278. In that decision, the primary Judge granted summary judgment in favour of the respondents, dismissing the appellant’s originating application by which the appellant sought a declaration, compensation and the imposition of pecuniary penalties in relation to an alleged contravention of s 340 of the Fair Work Act 2009 (Cth) (Fair Work Act).

2    On 16 August 2019, I granted the appellant leave to appeal from that interlocutory judgment: see Parker v HG Innovations Pty Ltd [2019] FCA 1291 (Leave Decision).

Background

3    The relevant background facts are set out at [3] – [12] of the Leave Decision:

3    In an application filed in the Federal Circuit Court on 17 August 2018, Mr Parker had claimed declarations and compensation for alleged breach of s 340 of the Fair Work Act 2009 (Cth). Mr Parker claimed, inter alia, that he was an employee of one or all of the respondents because:

•     Mr Michael Gleeson offered him a position of General Manager of the first respondent at a meeting on 18 October 2017;

•    Mr Gleeson and Mr Parker also discussed engagement of Mr Parker as a broker and locum business manager with the second respondent, and on 21 October 2017 Mr Gleeson sent an email outlining a proposal for him to act as a contracted broker and receive a retainer for his employment with the first respondent;

•    Mr Parker caused an email to be sent to Mr Gleeson on 21 October 2017 asking questions of the contractor’s agreement but received no response;

•    Mr Parker began employment and attended work on or about 24 October 2017, and was provided a desk, stationery, access to various documents and a work phone;

•    Mr Parker was directed to answer calls and speak to customers obtaining referrals, and to arrange to rent cars owned by the first respondent to customers that could not be financed by the second respondent;

•    By 2 November 2018, it had become clear that he would not be provided with any opportunity to act as a broker, and that the Rideshare Management role was his sole employment role;

•    In a meeting in the following days Mr Gleeson showed Mr Parker an employment contract of a third party who had been a full time employee of the first respondent, and Mr Parker agreed that that would be the best way forward;

•    On 17 November 2018 Mr Parker and other staff were told by Mr Gleeson that they had no authority to act independently;

•    On 20 November 2018 Mr Gleeson told Mr Parker that he was to be a contractor paid by the second respondent even though the work he was doing was for the first respondent, or his employment would have to be terminated;

•    Mr Parker’s weekly payment continued on a regular weekly basis including sick days, public holidays and personal leave;

•    Mr Gleeson agreed that Mr Parker would be paid a commission each month referable to the total revenue he produced for the first respondent;

•    Mr Parker had access to company vehicles throughout the period of his employment, for the purposes of his role;

•    In his termination email Mr Gleeson said “Sounds like a job to me…”;

•    Mr Gleeson agreed to pay Mr Parker a period of notice; and

•    Mr Parker had no control over the entities controlled by Mr Gleeson which were paying his salary.

4    Mr Parker also claimed:

•    He had complained to Mr Gleeson on 31 May 2018 because he believed that the respondents were unfairly subjecting him to unfair working hours; and

•    He was dismissed because of his complaint, in breach of his workplace rights under s 341 (1)(c)(ii) of the Fair Work Act.

5    On 4 October 2018 the respondents filed an Application in a Case pursuant to s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth). Section 17A(2) provides that the Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if the first party is defending the proceeding or part, and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. The Application in a Case was listed for hearing on 7 February 2019.

6    On 5 November 2018 at the case management hearing in the Federal Circuit Court before another Judge of that Court (case management Judge), the case management Judge ordered that:

(i)    The Applicant to file and serve no later than 4.00pm on 3 December 2018 an Affidavit particularising why he was employed as an employee and not a contractor and annexing any supporting evidence as well as his written submissions; and

(ii)    The Respondent to file and serve any written submissions by no later than 4.00pm than 10 December 2018.

7    At the hearing before me, Mr Parker submitted that, on 5 November 2018 at the case management hearing he was physically handed written submissions by Counsel for the respondents, however Mr Parker returned those written submissions to Counsel in light of the case management orders of the case management Judge. This submission is not disputed by the respondents.

8    Mr Parker filed his written submissions and affidavit with exhibits on 3 December 2018.

9    Mr Michael Green, the solicitor for the respondents, deposed in his affidavit affirmed 10 April 2019 that the respondents filed their joint outline of written submissions on 4 November 2018. Counsel for the respondents submitted, in summary, that those written submissions were the same as had been handed to Mr Parker on 5 November 2018.

10    Mr Parker submits that there is no record of the respondents’ joint submissions ever appearing on the Commonwealth Courts’ Portal. Insofar as my Chambers is able to ascertain, there is no record in the electronic Court file of the Federal and Federal Circuit Courts of any submissions ever being filed by the respondents in the Federal Circuit Court proceedings in this matter.

11    I am not satisfied that any submissions were ever filed by the respondents in these Federal Circuit Court proceedings.

12    Mr Parker further submitted that, at the commencement of the hearing before the primary Judge, the respondents physically handed his Honour and Mr Parker their hard copy written submissions in support of the Application in a Case. Counsel for the respondents submitted that those submissions were the same as had been shown to Mr Parker on 5 November 2018. I am unable to form a view about this in the absence of evidence to this effect.

decision of the primary judge

4    His Honour noted at [1] of the primary decision that the declaration and orders sought by the appellant in his originating application were dependent upon the Court finding that the appellant was, at all material times, an employee, as opposed to an independent contractor, of one or more of the respondents. His Honour determined that the evidence before the Court failed to demonstrate the appellant was an employee, as opposed to an independent contractor, for the following reasons:

6.     In evidence filed on behalf of the applicant, the applicant asserted that the nature of tasks performed by him ought to give rise to an inference that at all material times he was employed rather than acting independently as a contractor. He stated that he was provided with a desk, stationery, a work phone and that he was given access to computing and document systems. He said that he was given instructions as to how to perform various tasks, including the answering of telephone calls, speaking to customers, obtaining referrals, and arranging the rental of cars owned by the parent company HG Holdings Pty Ltd to the subsidiary third respondent and other entities. All of those allegations are not contested by the respondents, but rather, the respondents submit that those indicia alone, with others, are not probative of the applicant being an employee.

7.    It is not contested that the applicant and Mr Michael Gleeson, a director of each of the respondents, first spoke concerning the applicant’s possible involvement in Mr Gleeson’s businesses on or about 11 October 2017. The documentary evidence adduced on behalf of the respondents in the affidavit of Michael Gleeson filed on 4 October 2018 paints a different picture to that asserted by the applicant. The following evidence contained in that affidavit is of note:

…

8.     During the course of the hearing, the applicant:

a)    Admitted that he had received the sum of $1,000.00 per week for the whole of the period of time which he had spent performing work on behalf of one or either of the respondents, that being the ‘retainer’ referred to earlier. He also admitted that he had been paid in full in that regard.

b)    Admitted that the agreement that he had with Mr Gleeson concerning the payment of commission, over and above his weekly retainer of $1,000.00, was that he would be paid an amount equal to 7% of gross turnover from company sales and rentals. He further admitted that he had received all payments relating to his 7% gross turnover entitlement.

c)    Admitted that no superannuation was to be paid to him consequent upon his engagement.

d)    Admitted that he didn’t provide a tax file number to Mr Gleeson for the purpose of the withholding of income tax, or for the purpose of the issue to him of a group certificate after the end of the 2018 financial year.

9.     It is a question of fact, in any given situation, whether a person is an employee or a contractor. In this case, the applicant, during the entirety of his period of engagement with the respondents, either made it clear that he was content to be regarded as a contractor, or actively promoted himself as an independent contractor. He was damned by his own words in that regard. His claims to the contrary are a contrivance. His whole engagement was in the nature of the provision by him of services as part of a personal services business.

10.     To the extent that the applicant, on occasion, adverted to his possibly wanting to arrange his affairs vis-à-vis the company differently, either by utilising a company, trust, or partnership structure, the use of each was inconsistent with him being an employee as opposed to an independent contractor. The arrangement that the applicant had with Mr Gleeson was that he would be remunerated by way of the payment of a weekly retainer, supplemented by the payment of commission, whilst carrying on the business of a sole trader under his registered business name in and for that business as the representative of that business.

5    In light of that conclusion, the primary Judge found (at [11]) that the appellant had no reasonable prospects of successfully prosecuting his claim at trial, and accordingly granted summary judgment in favour of the respondents. His Honour also ordered costs against the appellant on the basis that costs ought properly to follow the event.

appeal to the federal court

6    On 25 February 2019, the appellant filed an application for leave to appeal from the primary decision. That leave was granted on 16 August 2019 in the Leave Decision.

7    On 6 September 2019, the appellant filed a notice of appeal in this proceeding. The appellant’s grounds of appeal as set out in his notice of appeal are as follows:

1.     On the 11th Of February 2019 at the Brisbane Federal Circuit Court [the primary Judge] made a Summary Judgement dismissing the Appellants application for compensation for an alleged breach of section 340 of the Fair work act and awarded the Respondents costs pursuant to the provisions of section 17A(2) of the Federal Circuit Court of Australia Act (Cth) (1999). The appellant wishes to appeal this decision on the basis the following was procedurally unfair in circumstances where

  a.     The respondents’ written submissions were never filed;

b.     This failure was itself in contravention of the orders of the Federal Circuit Court of 5 November 2018;

c.     The primary Judge accepted the respondents’ written submissions on the day of the hearing and proceeded to hear the case having regard to those submissions;

d.     The applicant had no opportunity to examine the respondents’ written submissions prior to hearing and properly address them;

e.     It is not in dispute that the applicant was unaware – and could have no reason to be aware – that the hard copy version of the respondents’ written submissions that he had returned to their Counsel on 5 November 2018 were the same submissions that the respondents would ultimately rely on at the hearing before the primary Judge;

f.     The applicant was not legally represented; and at the hearing the primary Judge was aware of the issue of a contravention of orders by the respondents in respect of their failure to file written submissions.

g.     On the hearing date the 7th of February 2019, the appellant was not given the right to have his case, evidence or argument heard.

h.     The hearing date was delayed accommodating Mr Michael Gleeson’s attendance however Mr Michael Gleeson was absent from the hearing denying the appellant his natural justice to test the evidence of Mr Michael Gleeson.

i.     The primary Judge did not have regard to the applicant’s evidence and/or written submissions supporting the applicants claim of an employment relationship with one or more of the respondents.

2.     The appellant has grounds for appeal because [the primary Judge] has also Erred in law,

a.     His Honour erred at [12] of the primary judgment in finding that “costs ought properly follow the event”. No reference was made by his Honour to s 570 of the Fair Work Act which provides:

Costs only if proceedings instituted vexatiously etc.

(1)     A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569. Note: The Commonwealth might be ordered to pay costs under section 569.

  (2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

    (c)     the court is satisfied of both of the following:

(i)     the party unreasonably refused to participate in a matter before FWA;

(ii)     the matter arose from the same facts as the proceedings.

(Errors in original.)

8    On the basis of those grounds, the appellant seeks the following orders:

1.     That the Orders of [the primary Judge] be set aside

2.     That the matter be set [sic] back down for trial in the Federal Circuit Court

3.     That the respondent pays the appellants appeal costs

consideration

9    As Dixon J observed in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.

10    Similarly, in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J said:

24.    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

    (Citations omitted.)

See also for example General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 and British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47 at [103].

11    In seeking summary judgment, the applicant bears the onus for orders to that effect: Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [127].

12    In summary, the appellant appeals from the decision of the primary Judge on the grounds that:

(1)    The primary decision and hearing before the primary Judge were affected by procedural unfairness; and

(2)    The primary Judge failed to consider s 570 of the Fair Work Act in awarding costs.

13    Submissions of both the appellant and the respondents address the grounds of appeal, as well as grounds contained in the appellant’s draft notice of appeal (annexed to the appellant’s application for leave to appeal) that have not been maintained by the appellant in the notice of appeal filed 6 September 2019. In particular, the appellant did not rely on the following two grounds in his notice of appeal:

    That certain findings of fact made by the primary Judge were unsupported by evidence; and

    That the primary Judge erred in law by either failing to consider if the appellant had a claim under item 3 of s 342 of the Fair Work Act, or failing to make an order permitting the application to be amended to address item 3 of s 342 of the Fair Work Act.

14    As these grounds are no longer maintained, it is unnecessary for me to either consider those grounds or submissions addressing them.

15    I will now turn to each of the two grounds of appeal as set out in the notice of appeal filed 6 September 2019.

Ground 1: The primary decision and hearing before the primary Judge were affected by procedural unfairness

16    The relevant principles concerning procedural fairness were succinctly stated in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [211]:

In Stead v State Government Insurance Commission this Court (Mason, Wilson, Brennan, Deane and Dawson JJ) had to consider whether a breach of the rules of natural justice required in the circumstances that a party be granted a fresh trial. The particular circumstances were that the trial judge said to counsel who was addressing on a relevant issue, among other things, “You needn't go on as to that” in consequence of which counsel discontinued addressing on the topic. When the judge came to give his decision he made findings to the contrary of the clear intimation he had made to counsel in discouragement of any further address on the topic. This Court had no doubt that a breach of natural justice requiring that there be a new trial had occurred. Their Honours' judgment although they were dealing with an appeal and not an application for prerogative relief, is relevant to the question of what type of conduct will involve a breach of the rules of natural justice sufficient to justify a grant of prerogative relief. They said:

“The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board, in these terms: ‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’

That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

(Citations omitted.)

17    In the Leave Decision, I made the following comments in relation the appellant’s first ground of appeal:

20     In respect of the question whether the primary judgment is attended by sufficient doubt to warrant its reconsideration, I note first that there appears to be substance to Mr Parker’s claim that he was denied procedural fairness in circumstances where:

•    The respondents’ written submissions were never filed;

•    This failure was itself in contravention of the orders of the Federal Circuit Court of 5 November 2018;

•    The primary Judge accepted the respondents’ written submissions on the day of the hearing and proceeded to hear the case having regard to those submissions;

•    The applicant had no opportunity to examine the respondents’ written submissions prior to hearing and properly address them;

•    It is not in dispute that the applicant was unaware – and could have no reason to be aware – that the hard copy version of the respondents’ written submissions that he had returned to their Counsel on 5 November 2018 were the same submissions that the respondents would ultimately rely on at the hearing before the primary Judge;

•    Mr Parker was not legally represented; and

•    It is not disputed that Mr Parker had raised the issue of contravention of orders by the respondents in respect of their failure to file written submissions, and fairness, before the primary Judge at the hearing.

21    I consider there to be a reasonably arguable case that the likelihood of prejudice to Mr Parker in those circumstances was high, noting in particular that Mr Parker was a litigant in person who had complied with the Court’s directions and had every reason to expect that the Federal Circuit Court would require the respondents to similarly comply.

18    The appellant submitted, in summary, that he was denied procedural fairness, for the following reasons:

    The primary Judge heard and considered only the respondents’ submissions and evidence, denying him a reasonable opportunity to be heard;

    He was not granted an opportunity to test the evidence of Mr Gleeson or give, and be cross-examined on, his own evidence;

    He was not given adequate opportunity to read, consider and respond to the written submissions of the respondents that were only presented to him at the commencement of the hearing;

    The primary Judge did not put him, a litigant in person, in an informed position in relation to his Honour’s reservation of the decision and the effect of that reservation; and

    The primary Judge did not explain to the appellant that he had “the right to object to a ruling being made before [he was] able to have [his] full argument and evidence heard”.

19    The respondents submitted that the hearing and primary judgment were not attended by procedural unfairness for the following reasons:

    The appellant was given every reasonable opportunity to familiarise himself with the respondents’ submissions.

    The appellant indicated he was content to proceed when the primary Judge asked him whether he was able or prepared to continue with the hearing, despite having only just received the respondents’ submissions.

    The appellant was given an opportunity to add to his affidavit material in response to questions from the primary Judge about the manner in which he undertook his work, the manner in which he was paid and his taxation arrangements.

    The appellant had no difficulty dealing with the factual questions and issues.

    Whilst the appellant may have had difficulties with the relevant legal principles, a self-represented party loses nothing because they cannot process facts in the context of legal principles. There was nothing to suggest the hearing could have been conducted in a manner that would have assisted the appellant to better understand the relevant legal principles.

    It was appropriate that the evidence of Mr Gleeson was not tested in an application for summary judgment.

    Regardless of whether any further additional procedural steps were taken, or further information provided, the determination of the characterisation of the relationship between the appellant and the respondents would have been the same as the issue was susceptible to determination on the basis of the various emails exchanged between the parties and the submissions of the appellant at the hearing.

20    Turning to the submissions of the parties in relation to ground 1, I make the following observations.

21    First, the respondents’ reference to the primary Judge enquiring of the appellant’s ability or preparedness to continue with the hearing, despite having only just received the submissions, appears to refer to the following exchange:

HIS HONOUR: You didn’t include reference to submissions, Mr Parker. No:

File and serve any written submissions by no later than 4 pm on 10 December.

You say you haven’t received any submissions?

MR PARKER: No, no. I’m just receiving those submissions now.

MR GREEN: Well, your Honour, I gave them to Mr Parker on the day, so ---

HIS HONOUR: The submissions?

MR GREEN: Yes, your Honour.

HIS HONOUR: All right.

MR PARKER: ..... obviously returned them as they---

HIS HONOUR: I beg your pardon, Mr Parker?

MR PARKER: I returned them as I assumed that they would be changed based on my own submissions and evidence.

HIS HONOUR: You returned them to whom?

MR PARKER: To Mr Green so that he – so in fairness, just so that he would be able to review my material before making his submissions.

HIS HONOUR: Well, you might have given them to – if that’s the case, Mr Green, you might have given them to him, but he has given them back to you.

MR GREEN: I don’t recall that particular detail, your Honour, but ---

HIS HONOUR: All right. Well ---

MR GREEN: --- in any event, there’s no change to the submissions.

HIS HONOUR: There’s no change to the submissions. And ---

MR PARKER: I have no trouble proceeding on that basis, your Honour.

(Transcript pp 10-11.)

22    To the extent that Mr Parker submitted that his Honour denied him procedural fairness in continuing with the hearing by reference to submissions already provided to Mr Parker (but handed back), it is difficult to see anything but that his Honour gave Mr Parker the opportunity to object to the continuation of the hearing by reference to the timing of the provision of the respondents’ submissions. His Honour noted that Mr Parker had given back to Counsel for the respondents the respondents’ submissions. However, when it was stated by Counsel for the respondents that there was no change to the submissions, Mr Parker immediately stated:

I have no trouble proceeding on that basis, your Honour.

(Transcript p 11 l 5.)

23    Mr Parker stated his position, and his Honour accepted it. No unfairness is attendant on the hearing continuing on that basis.

24    Second, in respect of Mr Parker’s submission concerning the absence of explanation by his Honour of his “right to object to a ruling being made before they were able to have their full argument and evidence heard”, the nature of Mr Parker’s complaint is not entirely clear.

25    There are limitations on the ability of a trial Judge to assist litigants, including litigants in person. This issue was examined in detail by the Full Court of the Family Court of Western Australia in Johnson v Johnson (1997) 139 FLR 384; (1997) 22 Fam LR 141. In that case their Honours said:

115.    In the unreported decision of C and O (Fam C of A, Full Court, 18 March 1996, unreported) the Full Court of this Court, at p 22 held:

This ground does however raise the wider issue as to under what circumstances the Court is able to give assistance to an unrepresented litigant in the course of proceedings before it. Clearly a trial judge would be obliged to inform a litigant in person of the manner in which the trial is to proceed, the order of the calling of witnesses and the right which he or she has to cross examine witnesses. Similarly, I am of the opinion that a trial judge should explain to a litigant in person any matters of procedure relative to the litigation and generally assist him or her by taking basic information from witnesses called, such as, name address and occupation and then indicating to him or her as the trial proceeds when he or she may ask questions, whether in chief or in cross-examination and when final submissions are to be made.

Trial judges in my view should not give litigants in person legal advice, essentially for the following reasons: (a) It would be unfair to the other litigants in the proceedings, and; (b) Such advice may be given without full knowledge of the facts and therefore be of dubious assistance or perhaps even plainly wrong.

116.    The question of the extent to which a Court should give advice or assistance to a self-represented litigant was considered by the New South Wales Court of Appeal in the case of Rajski v Scitec Corporation Pty Ltd (SC(NSW), CA/146 of 1986, 16 June 1986, unreported: see Butterworths unreported Judgments BC8600928).

117.    In that case Samuels JA, after observing that the self-represented litigant in that case was “entitled to that degree of protection and advice which the Court ordinarily affords to litigants in person” and, that the “extent depends upon the assistance to which the litigant appears to stand in need”, proceeded to clarify the position thus:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.

118.    On the same topic, in the same case, Mahoney JA said this:-

When a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.

119.    The above statements by the two learned Justices of Appeal were adopted with approval by McLelland J (as he then was) in the Equity Division of the Supreme Court of New South Wales in Tardy v The Secretary of the Department of Community Services and Health (SC(NSW), McLelland J, 4015 of 1989, 9 October 1990, unreported: see Butterworths unreported judgments BC9001906) and again by McLelland CJ (as his Honour had, by then, become) in the same court in Studer v Konig (SC(NSW), McLelland J, 4900 of 1992, 4 June 1993, unreported: see Butterworths unreported judgments BC9301722). In the latter case his Honour, before referring to the dicta of Samuels and Mahoney JJA in Rajski v Scitec Corporation said this:

There can be little doubt that a litigant in person who has little or no legal training or experience is subject to a serious disadvantage in the effective conduct of legal proceedings, and in recognition of this fact, the Court takes such steps as are reasonably available to it to assist such a litigant to overcome or diminish that disadvantage.

But there are limits to how far the Court can properly go in providing such assistance, and the limits are reached when to go any further would either (a) compromise either the impartiality, or the appearance of impartiality, of the Court, or (b) result in procedural or substantive injustice to the other party.

120.    To the same effect is the statement of Legoe J of the Supreme Court of South Australia in Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 378:

Clearly it is the duty of the court to ensure that unrepresented defendants are given every opportunity to explore the rights which they may appear to have.

…

122.    It is undesirable for legal advice to be given to the litigant in person, essentially for the following reasons:

(a) It may be unfair or have an appearance of unfairness to the other parties; and

(b) The advice given may not be with full knowledge of the fact.

(Emphasis added.)

26    It is clear that his Honour was concerned that Mr Parker understood the nature of the application before the Court. This is apparent from the following exchange:

HIS HONOUR: All right. I will just have to get that application in a case out. Filed the – when was it filed? 4 October.

MR GREEN: 4 October, your Honour.

HIS HONOUR: All right. Here we are. Now, Mr Parker, do you understand what is happening now?

MR PARKER: I do, your Honour.

HIS HONOUR: You’ve brought an application under the Fair Work Act for various declarations and ancillary relief. You understand that?

MR PARKER: I understand.

HIS HONOUR: All right. And Mr Green of counsel, who represents the three companies who you have made respondents to the claim, is making application for dismissal of all of your claim on grounds that we are yet to hear about. All right?

MR PARKER: I understand.

HIS HONOUR: Do you understand that that’s the matter that is before the court today?

MR PARKER: I understand.

(Transcript p 8 ll 3 – 27.)

27    To the extent that his Honour made plain to Mr Parker the nature of the proceedings before the Court, and in circumstances where Mr Parker stated that he understood, the absence of further explanation by his Honour does not constitute procedural unfairness.

28    Third, in respect of Mr Parker’s submission concerning the absence of explanation by his Honour of the effect of the reservation of the decision, I am similarly unable to see any procedural unfairness to Mr Parker. While Mr Parker was a litigant in person, it was not incumbent on his Honour to minutely explain every aspect of the hearing, including the effect of reserving the decision. If Mr Parker understood that the hearing would resume prior to judgment delivery, he was mistaken. However, as the transcript of the hearing before his Honour bears out, Mr Parker received ample opportunity to make submissions to his Honour. At p 38 of the transcript (ll 7 – 31), the following exchange took place between his Honour and Mr Parker:

HIS HONOUR: … All right. All right. I don’t need to hear your further, Mr Green. Mr Parker, is there anything that you want to make in terms of submissions.

MR PARKER: In response to Mr Green’s submissions, your Honour?

HIS HONOUR: Yes.

MR PARKER: Sure, I believe I’ve covered ---

HIS HONOUR: You can stand when you address me, Mr Parker.

MR PARKER: I do apologise. I do believe that I have addressed in my affidavit and outline of argument many of the points raised by Mr Green in respect to – such as, in respect to – when is his ---

HIS HONOUR: Well, you’re asking me to have regard to what’s in your affidavit.

MR PARKER: That’s correct.

HIS HONOUR: All right.

29    After further oral submissions from Mr Parker, his Honour said at p 40 (ll 6 – 14):

HIS HONOUR: All right. Well, what I will do is I will reserve my decision, and my associate will contact each of – I don’t know about your instructing solicitors, Mr Green. They may have disappeared.

MR GREEN: I wish I could give your Honour an answer, but ---

HIS HONOUR: Well, someone will be contacted on your side, Mr Green ---

MR GREEN: Thank you, your Honour.

HIS HONOUR: --- to endeavour to ensure that people are present when I hand down my reasons.

30    Mr Parker made no further submissions. However, there was no apparent reason that he should. It was also plain from his Honour’s comments that his Honour was about to adjourn and upon resumption of the matter, would deliver judgment.

31    Fourth, in respect of Mr Parker’s complaint that he was unable to test the evidence of Mr Gleeson by cross-examination, or be cross-examined upon his own evidence, I note the proceedings before his Honour were an application for summary judgment. As a general proposition, it is inappropriate in such proceedings, which are interlocutory and summary, for witnesses to be cross-examined, such that the parties conduct the case as if it were a dress rehearsal for a trial: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 at [126] per Perram J. As White J further explained in Jin v State of South Australia [2016] FCA 1065, in considering leave to appeal against summary dismissal of proceedings in the Federal Circuit Court:

30.    I do not consider that submission has merit in the present context. It may be accepted, of course, that a litigant has an interest, commonly regarded as a “right”, to test evidence which is adverse to him or her through the process of cross-examination. It is not necessary for present purposes to consider the nature or conduct of the “right”…

31.    Even if there be a “right”, that “right” arises at the time that the adverse evidence is led. The FCC Judge was concerned with an antecedent stage in the litigious process, namely, the determination of whether the proceeding should be brought to an end summarily (and not proceed to trial) because the applicant had no reasonable prospect of successfully prosecuting it. No “right” to cross-examination by an applicant or a respondent’s foreshadowed witnesses arises at that stage. Further, even if the application for summary judgment had failed and the matter proceeded to trial, the applicant would still not have had the right to cross-examine the witnesses foreshadowed by the State until they were actually called to give evidence. Accordingly, I do not consider it reasonably arguable that the FCC Judge erred in the way contended for by this submission.

(Emphasis added.) (Citations omitted.)

32    I do not accept that Mr Parker had the right to test the evidence of Mr Gleeson, or have his own evidence tested, during the hearing before his Honour.

33    Fifth, in response to Mr Parker’s complaint that the primary Judge considered only the respondents’ submissions and evidence, I note that his Honour at [6] said as follows:

In evidence filed on behalf of the applicant, the applicant asserted that the nature of tasks performed by him ought to give rise to an inference that at all material times he was employed rather than acting independently as a contractor. He stated that he was provided with a desk, stationery, a work phone and that he was given access to computing and document systems. He said that he was given instructions as to how to perform various tasks, including the answering of telephone calls, speaking to customers, obtaining referrals, and arranging the rental of cars owned by the parent company HG Holdings Pty Ltd to the subsidiary third respondent and other entities. All of those allegations are not contested by the respondents, but rather, the respondents submit that those indicia alone, with others, are not probative of the applicant being an employee.

34    His Honour also at [8] referred to admissions of Mr Parker during the course of the hearing, namely that Mr Parker had:

a)    Admitted that he had received the sum of $1,000.00 per week for the whole of the period of time which he had spent performing work on behalf of one or either of the respondents, that being the ‘retainer’ referred to earlier. He also admitted that he had been paid in full in that regard.

b)    Admitted that the agreement that he had with Mr Gleeson concerning the payment of commission, over and above his weekly retainer of $1,000.00, was that he would be paid an amount equal to 7% of gross turnover from company sales and rentals. He further admitted that he had received all payments relating to his 7% gross turnover entitlement.

c)    Admitted that no superannuation was to be paid to him consequent upon his engagement.

d)    Admitted that he didn’t provide a tax file number to Mr Gleeson for the purpose of the withholding of income tax, or for the purpose of the issue to him of a group certificate after the end of the 2018 financial year

35    His Honour clearly gave Mr Parker the opportunity to be heard at the hearing, and had regard to the evidence of Mr Parker that was identified in paragraphs [6] and [8] of the primary decision. However, an issue which immediately arises is the stark contrast between his Honour’s detailed recitation of evidence of the respondents at [7] – extending over 5 pages of the primary judgment – and the very cursory reference to the evidence of Mr Parker. Before his Honour was an application to summarily dismiss Mr Parker’s claims against the respondents. It is settled law that such applications must be approached by the Court with caution.

36    There is some overlap in the material filed by Mr Parker in the proceedings in the Federal Circuit Court (in particular, his affidavit filed 3 December 2018) and the material on which the respondents relied, and to which his Honour referred in the primary judgment. Insofar as I can ascertain, that overlap is as follows:

    MG2, an email dated 21 October 2017 from Mr Gleeson to Mr Parker, is exhibit PP3 to Mr Parker’s affidavit;

    Part of MG4, an email dated 24 October 2017 from Mr Gleeson to Mr Parker, is exhibit PP20 to Mr Parker’s affidavit;

    MG5, an email dated 18 October 2017 from Mr Parker to Mr Doug Taylor, is exhibit PP2 to Mr Parker’s affidavit;

    MG9, an email dated 17 November 2017 sent by Mr Parker to West Point Auto, is part of PP12 to Mr Parker’s affidavit;

    MG10, an email dated 17 November 2017 from Mr Gleeson to (inter alia) Mr Parker, is part of exhibit PP12 to Mr Parker’s affidavit; and

    MG11, an email dated 17 November 2017 from Mr Parker to Mr Gleeson, is part of exhibit PP12 to Mr Parker’s affidavit.

37    However, as is apparent from the material before the Court, there was, in addition to these emails, further material in Mr Parker’s affidavit on which Mr Parker relied, including emails, text messages, bank records, an appointment invitation, and a road toll invoice.

38    It may be that this evidence was of little moment. Nonetheless, the view his Honour took of that evidence in Mr Parker’s affidavit is unclear to me, except that his Honour was cognisant of the contrasting “pictures painted” by Mr Parker and the respondents.

39    It is not necessary for the Court in written reasons to refer to every piece of evidence and every contention made by a party: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. Nonetheless, the Court is required to give proper consideration to the evidence before it: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48. Further, as the Court of Appeal of Victoria observed in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189 at [157]:

The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the court’s conclusions. The court need not deal in terms with evidence when its importance falls away because of the manner in which the court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored.

(Emphasis added.)(Citations omitted.)

See also Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 at [44] and New Zealand v Johnston (2011) 274 ALR 509; [2011] FCAFC 2 at [105].

40    On balance, in the absence of explanation by his Honour, I cannot be satisfied that, in giving summary judgment in favour of the respondents, his Honour has given proper consideration to the evidence on which Mr Parker relied. In particular, I cannot be satisfied that paragraph [6] of his Honour’s judgment demonstrates engagement by his Honour with the totality of Mr Parker’s evidence.

41    While the respondents submitted that granting the appeal would be an exercise in futility because the characterisation of the relationship between Mr Parker and the respondents would remain unchanged from that found by his Honour, I cannot be satisfied that that is the case. So finding would be also, in the circumstances, to make findings of fact and rulings in respect of a key substantive issue in the proceedings, namely whether he was actually in an employment relationship with one or more of the respondents. This is not an appropriate exercise of appellate power: Coulton v Holcombe (1986) 162 CLR 1 at 7; [1986] HCA 33; BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17 at [56]-[61].

42    The appeal should be allowed on this ground. However, in the interests of completeness, I will also examine the other ground of appeal.

Ground 2: The primary Judge failed to consider s 570 of the Fair Work Act in awarding costs

43    The appellant submitted that the primary Judge erred in determining that costs ought to follow the event as no reference was made to s 570 of the Fair Work Act.

44    The respondents submitted:

    There is nothing that would ordinarily be regarded as imposing a restriction on the manner in which the discretion to award costs is to be exercised, other than the preconditions identified in the legislation.

    Where a court is satisfied that the relevant threshold has been met, and where the factual circumstances warrant it, the discretion can be exercised: Fair Work Ombudsman v NSW Motel Management Services Pty Ltd [2018] FCCA 508.

    In the context of finding the claim was without merit, the discretion to award costs was exercised unexceptionally and should not be disturbed.

45    Section 570 of the Fair Work Act provides:

Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. State or Territory might be ordered to pay costs under section 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before FWA;

(ii)    the matter arose from the same facts as the proceedings.

46    Section 570 of the Fair Work Act is clear in its limitation of cases where an unsuccessful applicant in Fair Work proceedings is required to pay costs: see for example the following observations of Pagone J in Shamir v Commonwealth of Australia [2015] FCA 1463:

3.    …In Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166 the Full Court at [9] approved the following passage from Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 at [8] summarising the relevant authorities concerning the exercise of the Court’s discretion under s 570(2)(a):

To exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470, 473. The relevant provisions reflect ‘a policy of protecting a party instituting proceedings from liability for costs’ and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission(2006) 156 FCR 275 at [60]. In Kangan Batman Institute it was said by the Full Court at [60] that ‘a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure’. In Kanan v Australian Postal and Telecommunications Union(1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted ‘without reasonable cause’ was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no ‘substantial prospect of success’. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant’s own version of the facts. [See also Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370 at [43]; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2)(2015) 230 FCR 337at 342–3, [13]].

    (Emphasis added.)

47    However, there is no indication in the primary judgment that his Honour turned his mind to s 570 of the Fair Work Act. His Honour did not refer to this section, nor the elements of the section. Further:

    There is no finding by his Honour that the applicant had commenced the present proceedings vexatiously or without reasonable cause, or whether an unreasonable act or omission of Mr Parker caused the respondents to incur costs;

    Honour’s finding of a “contrivance” on Mr Parker’s part in paragraph [9] of the primary judgment does not necessarily mean that his Honour considered costs ought properly be ordered against Mr Parker pursuant to s 570(2) of the Fair Work Act;

    There is no material before me indicating that the respondents had sought costs pursuant to s 570 of the Fair Work Act; and

    His Honour simply ordered at [12] of the primary judgment that: “Costs ought properly to follow the event”.

48    Ground 2 is substantiated.

Conclusion

49    The appeal is allowed, the orders of the Federal Circuit Court in the primary judgment quashed, and the matter remitted for further hearing and determination.

50    Although Mr Parker has been successful in this appeal, he has not substantiated a case within the scope of s 570 of the Fair Work Act. Accordingly, costs are refused. In any event, Mr Parker is a litigant in person and has not incurred legal costs in the course of this appeal: see Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 and Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29.

Associate:

Dated:    30 June 2020