Federal Court of Australia

Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    On or before 4pm on 21 October 2022, the second respondent file and serve any submissions he wishes to make on the costs of the unsuccessful interlocutory application made by the applicant on 4 May 2022.

3.    On or before 4pm on 4 November 2022, the applicant file and serve any submissions in response.

4.    Subject to further order, the question of the costs of the interlocutory application be dealt with on the papers.

5.    The parties otherwise bear their own costs of the proceeding.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant, Jeffrey Robinson, worked with the second respondent, Ian Wright, between March 2017 and approximately May 2020, or November 2020, depending on which view of the facts is taken. Mr Robinson worked under the title of General Manager, BMF Construction. BMF Construction was a business name. Its business was operated by Mr Wright through one or more corporate vehicles, including a corporation called BMF Pty Ltd, which on Mr Wright’s evidence was a corporation of which he had been a director since 1975 or, possibly, since the mid-1980s.

2    Mr Wright described the business of BMF Construction as:

the construction of buildings on land owned or leased by clients of BMF, or by myself or other corporate entities in which I held an interest.

3    The proceeding concerns the cessation of Mr Robinson’s employment. A major issue in the proceeding is who was Mr Robinson’s employer at the relevant times. Mr Robinson contends his employer was BMF. Mr Wright contends it was another corporation, Brandmet Pty Ltd. For reasons that I explain below, the identity of the employer affects the prospects of success of the causes of action, and the failure by Mr Robinson to join Brandmet in a timely way meant the trial also proceeded differently to the way it would have proceeded if Brandmet had been joined.

4    Mr Robinson makes claims under the Fair Work Act 2009 (Cth) and the Australian Consumer Law, as found in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as well as claims in contract and equity. For the reasons set out below, Mr Robinson’s application must be dismissed.

Brief procedural history

5    In accordance with Mr Robinson’s views of the legal situation, the proceeding was commenced in December 2020 against BMF as Mr Robinson’s employer, and therefore as the entity with principal liability. Mr Wright was, and is, alleged to have accessorial liability under s 550 of the FWA in respect of the alleged contraventions of that Act. Pecuniary penalties under the FWA were sought against both respondents. The ACL claims were made directly against Mr Wright as well as BMF, and in the alternative against Mr Wright as a person ‘involved’ in those contraventions, in the sense given to the word ‘involved’ under s 2 of the ACL. The claims in contract were against BMF. The claims in equity were, possibly, against both BMF and Mr Wright.

6    On 2 February 2021, BMF was placed in liquidation. Pursuant to s 500(2) of the Corporations Act 2001 (Cth), the proceeding was therefore stayed as against BMF. BMF’s liquidators formed the view that there were insufficient funds to defend Mr Robinson’s claims or pay Mr Robinson on the relief he seeks. For the reasons given in Robinson v BMF Pty Ltd (in liq) [2021] FCA 1064, the Court refused Mr Robinson’s application for leave to proceed against BMF under s 500 of the Corporations Act. Shortly after the Court’s decision, in September 2021, orders were made to list the proceeding for a trial of three days, commencing Tuesday 8 March 2022.

7    On the Friday before the hearing was scheduled to commence, Mr Robinson applied to vacate the trial hearing because of the unexpected unavailability of his counsel. Mr Robinson sought to have the proceeding referred to a mediation to be held on Wednesday 9 and Thursday 10 March 2022. Given the delays likely in trying to find suitable alternative dates, and the fact the proceeding had taken longer than usual to come to trial in any event, the Court determined that the trial hearing would be postponed for one day and be limited to questions of liability, so that its estimated duration could be reduced to two days. The proceeding was then referred to a mediation to be conducted by 31 March 2022. The reasons for this ruling were published to the parties on Sunday 6 March 2022. The hearing of evidence and opening submissions regarding liability was conducted on Wednesday 9 and Thursday 10 March 2022.

8    Due to the unavailability of counsel who had been briefed in the matter, and the difficulties in securing replacement counsel at short notice, Mr Robinson was represented at the hearing by Glen Bartlett, his solicitor. Mr Bartlett had the assistance in court of a legal clerk from his firm. It was clear that Mr Bartlett knew his client’s case well, and was familiar with the evidence to be tendered.

9    The opening submissions included an exchange between the Court and Mr Bartlett in which he indicated that it was now intended to submit, in the alternative, that Mr Wright (as an individual) was Mr Robinson’s employer, despite that position not forming part of Mr Robinson’s case as it had been pleaded. As recounted in Robinson at [5]-[7], since at least February 2021 Mr Robinson had been aware of Mr Wright’s position in the proceeding, pleaded in his defence, that BMF had not been Mr Robinson’s employer and that Brandmet was his employer. It was plain this was an issue of fundamental importance to the proceeding. Nevertheless, Mr Robinson did not seek to reformulate his case to deal with the possibility that the Court would agree with Mr Wright on this issue. Orders made in February 2021 expressly to permit an amendment to Mr Robinson’s originating application and pleadings in relation to the joinder, removal or substitution of any respondents were allowed to expire without any application to amend, nor any application for joinder, being filed. In opening, Mr Bartlett accepted there was no pleading that Mr Wright as an individual was Mr Robinson’s employer. He appeared to accept an amendment would be required. He embraced the suggestion that if the evidence supported it, this contention would form part of his client’s final submissions. Responsively, counsel for Mr Wright accepted in opening that there would need to be an amendment application, and indicated Mr Wright would resist any such application.

10    After the hearing, and closing of the evidence, and ahead of a scheduled subsequent oral hearing for final submissions, Mr Robinson filed an application for leave to amend his statement of claim, principally to deal with the issue of the identity of his employer. That application was made on 4 May 2022, almost two months after the trial. Mr Wright resisted this application.

11    The proceeding was listed for a case management hearing on 12 May 2022. Mr Bartlett explained that the proposed amendments made allegations about further representations said to have been made by Mr Wright and BMF, allegations that Mr Wright was Mr Robinson’s employer or joint employer, an allegation that Mr Wright had induced BMF to breach a contract with Mr Robinson, and other allegations advanced in the alternative that the Court were to find Brandmet to have been Mr Robinson’s employer. On 13 May 2022, the Court ordered that the application to amend the statement of claim be dismissed, with reasons to be given in the Court’s final decision about liability. The proceeding continued to a hearing of final submissions about liability on 24 May 2022, with supplementary written submissions being finalised on 3 June 2022. The reasons for the Court’s decision to dismiss Mr Robinson’s application for leave to amend his statement of claim are found at [16]-[29], below.

The evidence

12    The parties relied on affidavits from their principal witnesses, Mr Robinson and Mr Wright. Mr Robinson also read and relied upon affidavits from Mr Bartlett. There was a considerable amount of documentary material which was collected into a Court Book. A number of documents were tendered as exhibits during the hearing. After the hearing, the parties were given the opportunity to reflect on what documents they intended, and needed, to rely upon, and were invited to inform the Court of any documents in the digital version of the Court Book upon which they did not propose to ask the Court to rely. This process was designed to avoid any duplication in the evidence before the Court, and to ensure the parties focussed their attention on what they relied upon to prove their respective cases. It was also designed to ensure the hearing process was fair in particular to the applicant, who had experienced some difficulties with the unavailability of his counsel for the evidentiary part of the hearing. The parties cooperated in this process and produced an index to the Court Book indicating what they continued to rely upon, and what they did not. The amended Court Book was then marked as an exhibit. The Court has made its findings and reached its conclusions based on the evidence as reflected in the amended Court Book as submitted by the parties.

13    Both Mr Robinson and Mr Wright were cross-examined. Harry Fung, a man whose role looms large in the events relevant to this proceeding, was not called as a witness by either party. Nor were any of the other people who worked for Brandmet or BMF Construction called as witnesses, despite several such people being mentioned in the documentary evidence, some relatively prominently.

The Applicant’s Interlocutory Application dated 4 May 2022

14    As I noted above, on 4 May 2022, Mr Robinson filed an interlocutory application seeking leave to file an amended statement of claim. This was accompanied by a supporting affidavit of Mr Bartlett, affirmed 3 May 2022, containing the amended statement of claim.

15    On 12 May 2022, I convened a case management hearing. At the hearing, counsel for Mr Wright indicated that his client opposed the interlocutory application. The parties made oral submissions on the merits of the interlocutory application at that hearing. Subsequently (on 12 May 2022), Mr Robinson sent by email to Chambers further written submissions in support of the interlocutory application.. Mr Wright also submitted a short document, with transcript references, on which he sought to rely. At the hearing, and in the interests of the timely resolution of the proceedings given the delays to this point, I indicated that a decision would be made on the interlocutory application, with reasons for that decision being published in the final judgment in the proceeding. The parties were content with that course. Orders were made on 13 May 2022. At [16]-[29] below, I set out my reasons for those orders.

16    In my opinion, Mr Robinson was given ample opportunity to propose amendments to raise alternative contentions about who was his employer, and he failed to avail himself of those opportunities. The most obvious opportunity was given very early on in the process, after Mr Wright’s defence had squarely put the identity of Mr Robinson’s employer in issue. No action was taken, and as I have noted above, the Court’s orders permitting amendment and joinder were allowed to expire. Then, in opening at trial, Mr Bartlett foreshadowed alternative contentions, but made no application during or even at the end of the trial for leave to amend. Instead, an application was made almost two months later. By this time, the evidence had closed, and the parties were about to make final submissions. The proceeding had been on foot by this stage for approximately 18 months.

17    I accept that a key question in the exercise of discretionary powers such as the granting or withholding to a party of leave to amend their pleadings is generally whether, without the amendments, the Court is able to deal with the real issues between the parties. That is one of the Court’s core functions; to ensure it deals as comprehensively as it can with the real issues of law and fact that give rise to the dispute between the parties. Against this however a number of other considerations need to be balanced. This is one of those circumstances where those other considerations support a refusal of leave to amend.

18    The Court’s orders permitting amendment and joinder were made on 8 February 2021. Those orders were extended twice, until 20 April 2021, when the amendment orders were vacated without any opposition from Mr Robinson.

19    The evidence given at trial made it clear it was Mr Robinson’s lawyer at the time of the contract (in March 2017) who inserted Brandmet as the employer into the written employment contract. He did that after a series of communications with Mr Robinson about which entity should be identified as the employer, and he did so on Mr Robinson’s instructions. These facts were known to Mr Robinson at all material times. He deposed to them in his affidavit of 21 June 2021. They were therefore also known to Mr Robinson’s counsel and solicitors in this proceeding. The application to amend did not arise from any new evidence, previously unknown to Mr Robinson and his lawyers, nor to any evidence originating from Mr Wright.

20    On 2 June 2021, shortly before his affidavit was filed, Mr Robinson was given a further opportunity to amend his case, by orders made on that day. No amendments to the statement of claim were proposed. Instead, Mr Robinson pressed an interlocutory application for leave to proceed against BMF despite it being in liquidation, because BMF was the entity he continued to allege was his employer.

21    Some of this procedural history was set out in the Court’s reasons for refusing leave to proceed against BMF, at [4]-[5]. Those reasons were published on 3 September 2021. Mr Robinson was on notice of the Court’s views about the way he had chosen to conduct the proceeding, and the forensic choices he had made. This was approximately six months before the trial was listed to commence.

22    To state the obvious, there would have been considerable prejudice in allowing the amendments to the statement of claim two months after the evidence had closed. The thrust of the proposed amendments was to put two alternative cases about the identity of the employer – first, that it was Brandmet (as Mr Wright’s defence contended); and, second, that it was Mr Wright as an individual. From this, Mr Robinson sought to then add a number of contentions about what flowed from these propositions, including the accessorial liability of Mr Wright for the conduct of Brandmet. That is because Brandmet had also, by this stage, been placed in liquidation. Counsel for Mr Robinson put it this way:

MR O’NEILL: No, your Honour. It really goes to the misleading and deceptive conduct issue and the estoppel issue. It doesn’t go to any contractual issue. Well, sorry, perhaps I’ve overstated that, but that’s the primary purpose of it, but it’s also – when I read it again, it’s to support a submission on the contractual issue that the representation being made that – one way we put our case, is that Brandmet was a mere pay agent, if you like, of either Mr Wright or BMF and that allegation also supports that way of putting our case.

23    There were also entirely new causes of action pleaded, such as the tort of interference with contractual relations. Counsel accepted those allegations were new, although he submitted such representations were:

understood to have been made and contested, and so I can’t explain to your Honour why they weren’t put in the way they now are in the original pleading, but, in my submission, they’ve always been on the table.

24    In reply, counsel for Mr Robinson accepted that some of the amendments would require joinder of Brandmet, at a time after the trial and the substantive close of evidence. He submitted the issues had in a practical sense been “thoroughly canvassed” at trial, and there was no unfairness.

25    Counsel also accepted that some of the proposed pleadings made specific allegations against Mr Wright, which had not been put directly to him in cross-examination – such as the allegation that he deliberately placed Brandmet in liquidation to avoid any liabilities to Mr Robinson. Further, the allegation that Mr Wright was the employer, or joint employer, of Mr Robinson was a matter counsel accepted had not been put to Mr Wright.

26    These matters gave rise in my view to significant unfairness, and prejudice, to Mr Wright. There was no proposal on behalf of Mr Robinson that leave be granted to re-open the evidence, nor that the trial should re-commence. Rather, counsel for Mr Robinson sought to proceed on the evidence as it was, and the written submissions as they were. This introduced significant forensic unfairness to Mr Wright, whose evidence and contentions were adduced and made to meet the case as pleaded against him. Since the primary allegations in this proceeding arise under the FWA, the starting position was that the terms of s 570 of the FWA applied and each party would bear its own costs of the proceeding. The disproportion between the costs and delays in this proceeding on the one hand, and the relatively narrow compass of issues on the other, was increasing.

27    Another unfairness, and prejudice, was the extent to which the new allegations drew further into the forensic contest the role of Harry Fung. Mr Fung was not a party to the proceeding. However, he was the person to whom Mr Wright sold his shares in Brandmet. At the time Mr Robinson’s employment ceased, Mr Fung was the sole director and shareholder of Brandmet. Indeed, it was Mr Fung who stood Mr Robinson down in May 2020. It was Mr Fung who directed Mr Robinson to return to work, which Mr Robinson refused to do. Drawing Brandmet into the proceeding would likely draw Mr Fung into the proceeding in a substantive way. Yet there was no evidence he had been served with the application, or was even aware that his interests might be affected by this proceeding.

28    In my opinion, this application for amendment (and, inevitably, joinder) was made too late, and was likely to cause significant prejudice and unfairness to Mr Wright. It was also likely to result in the trial essentially having to be conducted again. Although, belatedly, Mr Robinson sought to make alternative cases about who was his employer, he had ample opportunity to do this at a far earlier stage, when put on notice of Mr Wright’s expressly pleaded position. He consciously elected not to do so, and in the circumstances of this proceeding he should be bound by those choices.

29    For those reasons, Mr Robinson’s interlocutory application was refused.

Applicable legislation

30    Mr Robinson’s claims under the ACL relate to allegedly misleading or deceptive conduct in trade or commence and allegedly misleading representations in relation to employment.

31    Section 18 of the ACL provides that:

18    Misleading or deceptive conduct

(1)    A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

Note:    For rules relating to representations as to the country of origin of goods, see Part 5‑3.

32    Section 31 of the ACL provides that:

31    Misleading conduct relating to employment

A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:

(a)    the availability, nature, terms or conditions of the employment; or

(b)    any other matter relating to the employment.

Note:    A pecuniary penalty may be imposed for a contravention of this section.

33    Mr Robinson’s claims under the FWA relate to alleged adverse action said to have been taken against him because he exercised a workplace right under the FWA, alleged failures to pay Mr Robinson’s annual leave entitlements, alleged failures to pay Mr Robinson for work he was said to have performed and an alleged failure give Mr Robinson proper notice of his termination as required by the FWA.

34    Relevantly in relation to Mr Robinson’s adverse action claims, s 340 of the FWA provides:

340    Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4‑1).

(2)    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note:    This subsection is a civil remedy provision (see Part 4‑1).

35    The meaning of ‘workplace right’ is given in s 341 of the FWA:

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)    making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3)    A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note:    Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4)    Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

(5)    Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).

36    The meaning of ‘adverse action’ is given in s 342 of the FWA:

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

(2)    Adverse action includes:

(a)    threatening to take action covered by the table in subsection (1); and

(b)    organising such action.

(3)    Adverse action does not include action that is authorised by or under:

(a)    this Act or any other law of the Commonwealth; or

(b)    a law of a State or Territory prescribed by the regulations.

(4)    Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

(a)    engaged in protected industrial action; and

(b)    employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

37    In relation to Mr Robinson’s claims about annual leave, s 90 of the FWA provides:

90    Payment for annual leave

(1)    If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

(2)    If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

38    In relation to Mr Robinson’s claims for payment for performance of work, s 323 of the FWA provides:

323    Method and frequency of payment

(1)    An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

Note 1:    This subsection is a civil remedy provision (see Part 4‑1).

Note 2:    Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a)    incentive‑based payments and bonuses;

(b)    loadings;

(c)    monetary allowances;

(d)    overtime or penalty rates;

(e)    leave payments.

(2)    The methods are as follows:

(a)    cash;

(b)    cheque, money order, postal order or similar order, payable to the employee;

(c)    the use of an electronic funds transfer system to credit an account held by the employee;

(d)    a method authorised under a modern award or an enterprise agreement.

(3)    Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

Note:    This subsection is a civil remedy provision (see Part 4‑1).

39    In relation to Mr Robinson’s claims about the notice given in respect of his alleged termination, s 117 of the FWA provides:

117    Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1)    An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1:    Section 123 describes situations in which this section does not apply.

Note 2:    Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a)    delivering it personally; or

(b)    leaving it at the employee’s last known address; or

(c)    sending it by pre‑paid post to the employee’s last known address.

Amount of notice or payment in lieu of notice

(2)    The employer must not terminate the employee’s employment unless:

(a)    the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b)    the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

(3)    Work out the minimum period of notice as follows:

(a)    first, work out the period using the following table:

(b)    then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

(4)    A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

(Note: Tthis subs (4) came into effect only on 26 March 2021, but in any event continuous service is not an issue in this proceeding.)]

40    As noted above, Mr Robinson advanced his case against Mr Wright on the basis that Mr Wright was ‘involved’ in BMF’s alleged misconduct for the purposes of the ACL and the FWA. However, he also advanced his ACL claim directly against Mr Wright: see [47] of the statement of claim, and cf [49] of the statement of claim.

41    Under the ACL, a person ‘involved’ in misleading or deceptive conduct in trade or commerce in contravention of s 18 may be liable to pay damages, required to comply with orders made to redress that conduct and disqualified from managing corporations: ACL ss 236-239, 248. The same liability can arise in respect of a person ‘involved’ in misleading conduct in relation to employment in contravention of s 31: ACL ss 236-239, 248. The definition for ‘involved’ is given in s 2 of the ACL in the following terms:

involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced, whether by threats or promises or otherwise, the contravention; or

(c)    has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d)    has conspired with others to effect the contravention.

42    Similarly, s 550 of the FWA provides:

550    Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note:    If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

43    Section 323 and s 340 of the FWA are civil remedy provisions. Section 90 and s 117 are not.

Findings of fact about the relevant events

44    In this section, I set out my findings of fact on the series of events that led to the ending of Mr Robinson’s employment. Much of the chronology, and the background facts, was not controversial or the subject of specific challenge, but what was to be made of the events that occurred was where some of the factual disputes between the parties arose.

45    Where necessary, I make further findings of fact in the sections of these reasons where I consider each of Mr Robinson’s causes of action.

Mr Wright’s establishment of BMF Construction

46    Mr Wright is in his sixties. He has a long history in building and construction, beginning as a boilermaker when he was 14 years old and continuing in the construction industry ever since. In June 1975, Mr Wright registered a business name for the entity that would become BMF. According to his evidence in cross-examination, he became the managing director of BMF in the mid-1980s. He remained the sole director and company secretary of the corporation until it entered liquidation in February 2021, using it to operate a construction business in Australia. This involved employing site workers, project managers and contract administrators to manage the construction of buildings on land owned or leased by BMF’s clients, or on land that BMF or Mr Wright’s other corporate entities owned.

47    BMF was not the only business that Mr Wright owned or controlled during the time of the events relevant to this proceeding. It was Mr Wright’s evidence that, during this time, he conducted various different enterprises through a number of corporate vehicles. Mr Wright owned a company named Slinky Bob Pty Ltd, which was the part owner of a wine store and a bar trading in South Melbourne under the name ‘Magnum + Queens’. He also owned W Merchant Pty Ltd, a company that operated a restaurant in Prahran called Wilson & Market. As I explain, Mr Robinson undertook work for both these businesses.

48    In terms of his method for conducting his building and construction businesses, Mr Wright gave the following evidence:

the majority of the companies are set up when you acquire a property. And then when that property is sold, after a year or so, just so we don’t have to pay the ASIC fees, then we let that company lapse.

49    Mr Wright was the sole director of the corporation named Brandmet Pty Ltd, from 4 January 1994 to 1 May 2020. According to Mr Wright, up until April 2020, Brandmet was a company that provided management and administrative services to other businesses in which Mr Wright held an interest, including BMF, Slinky Bob and W Merchant. The change in Brandmet’s business in April 2020 is described below.

Mr Robinson’s employment history prior to working in the business of BMF Construction

50    Mr Robinson is also in his sixties. Prior to his work in the business of BMF Construction, he was the Group Manager of Procurement, Logistics and Projects at PAS Group, a corporate entity that holds several Australian apparel and sporting brands. Mr Robinson’s employment with PAS Group was longstanding. In 1987, he commenced employment with an Australian apparel company named Yarra Trail Pty Ltd. Mr Robinson was responsible for this business’s logistics and procurement, and the management of its projects. He continued to work at Yarra Trail after its acquisition by PAS Group in 2004, although at some point he was transferred to the head office of PAS Group. Mr Robinson’s work for PAS Group included the management of a project to consolidate the offices of the group’s subsidiaries into a single location. According to the affidavit Mr Robinson affirmed on 21 June 2021, this project ran from about July 2008 to the end of 2010.

51    It does not appear to be disputed, and I find, that Mr Robinson first came into contact with Mr Wright around this period in 2009 or 2010. Each of Mr Wright and Mr Robinson gives slightly different accounts of how they first met, and under what circumstances during Mr Robinson’s work for PAS Group, but the details do not matter for the purposes of resolving the issues in the proceeding. Mr Robinson continued to work for PAS Group after the office project was completed, although some correspondence then began between Mr Robinson and Mr Wright about the prospect of Mr Robinson working for one of Mr Wright’s businesses. Nevertheless, Mr Robinson’s evidence was that his employment at PAS Group was well remunerated and secure, and that he would have been content to continue in his role there until his retirement. He was not seriously challenged on this evidence in cross-examination and I accept it, in the sense that in my opinion Mr Robinson was not unhappy in his previous employment. However, his evidence supports the proposition, and I find, that he did see an opportunity presented by Mr Wright’s offer, and he was keen to take it.

The offer by Mr Wright to Mr Robinson to work in BMF Construction

52    According to Mr Robinson, Mr Wright’s pursuit of him continued over a period of several years, culminating in a formal offer of employment in early 2017. In his June affidavit, Mr Robinson asserts that from 2009 to 2017 Mr Wright told him on three occasions that he wanted Mr Robinson to work for him. Around January 2017, the two men met so that Mr Wright could explain the work of BMF and how Mr Robinson’s skills in procurement and project management could be put to good use in its business. Mr Robinson then emailed Mr Wright a four-page ‘position overview’ to set out his qualifications for employment with Mr Wright. None of these aspects of the narrative was disputed by Mr Wright and I accept them.

53    A few days afterwards, in late February 2017, Mr Wright invited Mr Robinson to a dinner at a restaurant in Southbank. Mr Robinson sought a five-year fixed term contract at a salary of $300,000 per annum. There is a debate between the men whether this was sought at the dinner or after it by email, but the detail does not matter. In their evidence both men agreed, and I find, that Mr Robinson sought a contractual term of this kind. Mr Robinson’s evidence was that he sought to impress upon Mr Wright that he was unwilling to leave PAS Group for anything less. Mr Wright admitted in cross-examination that this term was a “dealbreaker” for Mr Robinson.

54    On Mr Robinson’s version of events, Mr Wright made it clear to him at the dinner that he would be working for BMF, although Mr Robinson also knew that he would be working for other businesses run by Mr Wright. In his evidence, Mr Robinson was adamant that there was no mention of Brandmet at the dinner at all.

55    It is not necessary to make a finding about whether or not Brandmet was mentioned at the dinner. However, I do accept the following evidence given by Mr Wright in cross-examination:

Sorry, Mr Wright?---What was also made abundantly clear, apart from the fact that Mr Robinson worked for Brandmet, which is why the contract was done in the name of Brandmet, was that he needed to work for those five years. And that’s what the agreement was. He would be there for five years. If he chose to leave before, he would not receive all that renumeration [remuneration]. That is absolutely crystal clear. There is no way I would agree to pay somebody if they’re not – they’re no longer there. Because I would have to - - -

Yes?--- - - - pay somebody else to be there.

56    In other words, in my opinion both Mr Wright and Mr Robinson knew that Brandmet was the corporate entity which would be identified in the employment contract as Mr Robinson’s employer. The evidence I refer to below supports that finding.

The drawing up of Mr Robinson’s employment contract

57    Following the dinner, Mr Robinson engaged a lawyer to draft the employment contract that Mr Wright had requested. The series of communications between Mr Robinson and his then lawyer, Mr Milicevic, is an important aspect of the evidence.

58    On 27 February 2017, Mr Milicevic advised Mr Robinson that he was unable to verify that Mr Wright operated a business registered with a name like ‘BMF Constructions’, but the following day he did find an extract from the Australian Security and Investment Corporation’s register of organisations for a company named ‘BMF Pty Ltd’ that listed Mr Wright as its director. Mr Milicevic noted that there had been an application to wind up BMF Pty Ltd in 2010 that was later dismissed, and emphasised that “there is always a risk that an employer will not manage their affairs and end up in liquidation/winding up, leaving employees in the lurch”. He also explained that, in his experience, it is not unusual for property development and construction companies to be liquidated if there is a downturn in the market.

59    At his lawyer’s suggestion, Mr Robinson asked Mr Wright to clarify which name he should enter as the counterparty to his employment contract. On 28 February 2017, Mr Wright replied that the entity that would employ Mr Robinson was ‘Brandmet Pty Ltd’.

60    At this point, the sequence of communications should be emphasised. On 28 February 2017 at 5.55am, Mr Robinson sent Mr Wright the following email:

Good morning !

I have a draft copy of the employment contract which I will go through and then pass on so we can [can] discuss (although it is pretty straight forward) but prior to that my legal has advised on the following.

Can you advise on the below ? ( I advised the name was BMF Construction P/L)

There is an issue with the name you provided for the employer. You need to get the name of the actual company that is operating the business, that is, the name of the company that will employ you. Why you ask?

I did a business name search for “BMF Construction” and there is no registered business name. I did an ASIC search, there is a company called “BMF Constructions Pty Ltd”, but this has a different director and is operating out of NSW (see attached ASIC search).

So, your new boss basically needs to get some advice about the name used on their website (bmfconstruction.com.au). It is against the law to operate a business under a name other than your own, unless it is registered! Your new boss also has the issue that someone else has registered a company with a very similar name and may be passing off his good will.

Regs

Jeff

(Original emphasis.)

61    It was to this inquiry that Mr Wright replied on the same day at 2.12pm:

Wow

Solicitors !

The entity that will employ you is Brandmet Pty Ltd.

Amanda will provide you with the can and any other details.

BMF is also a very large marketing/public relations firm

Cheers and thanks

Much for you to do.

62    Mr Robinson’s evidence is that he then telephoned Mr Wright to discuss Brandmet and Mr Wright “made it apparent to [Mr Robinson] that Brandmet was nothing more than a payment vehicle, and that all the work [Mr Robinson] would do was for BMF or other related development and investment entities”. In cross-examination, Mr Robinson elaborated that Mr Wright had told him during this phone call that “the work was going to be in one company and the payment was in another”, which he took to mean that Brandmet was nothing more than a payment vehicle.

63    Mr Wright denies that he told Mr Robinson that Brandmet was merely a payment vehicle. According to Mr Wright, he explained to Mr Robinson on that telephone call that Mr Robinson would be performing work for BMF and “other development and investment entities in which [Mr Wright] had an interest”, and that Brandmet had been established to employ people who provided services across those entities.

64    On 1 March 2017, Mr Robinson advised his lawyer that the counterparty to his employment contract was to be Brandmet. In his affidavit, Mr Robinson deposes that he:

emailed Mr Milicevic and advised him that I had been informed that Brandmet was a payment vehicle.

65    That is however, not what Mr Robinson’s email said. Rather, his email to Mr Milicevic stated:

Good morning,

1/ Can you please finalise and send through in word format ? leave out company name and ABN/ACN.

2/ Important - He came back and said the company [the company] he wants to pay me in is called "bandmet pty ltd" [sic] -

asic site is down until 8am . I will check this morning. I think it is important I ask him for some insight into the financials of that company. I don't care who pays me but to have a contract with a company that has no assets or income is useless is it not ? I need to ensure that if it all goes pear shaped the company that my agreement is able to pay me out.

Regs

Jeff

66    Mr Robinson emailed Mr Milicevic a little later, at 8.28am:

Good morning,

You can include the company name and ACN - one question. It looks bona fide to me but the obvious question is " hope the best, prepare for the worst" - what should i ask to see to satisfy myself that if the relationship goes belly up this company has some asset backing to pay me out ?

Ask him for assets in the company ? I think it may be overkill to ask for P&L's or balance sheet as i am prepared to risk him going broke but i want to know that the company name on the agreement is a company of some substance and holds some assets of value.

Regs

me

67    The emails between Mr Robinson and his lawyer indicate that a telephone call between the two ensued. In an email after that conversation, Mr Milicevic advised Mr Robinson that, “as discussed, no matter what you get now, there is nothing preventing assets being moved etc later”.

68    Mr Milicevic then suggested that Mr Robinson could ask for a personal guarantee from Mr Wright, or restructure the agreement to require a signing-on fee and a lower annual salary, or the holding of funds in trust. To these suggestions Mr Robinson replied, “To be honest – [I] wouldn’t hire me under those conditions – I know I have to […] try and mitigate the risk but the only problem with signing on fees and money held in trust is it displays a complete lack of trust.”

69    On this basis, Mr Robinson finalised the draft employment contract prepared by Mr Milicevic, and sent it to Mr Wright later that same day. That draft identified Brandmet Pty Ltd as the employer. In the covering email, Mr Robinson wrote:

My legal asked me the question “does Brandmet have any assets or financial standing as you want to be sure that your contract sits in a company with assets behind it”. Obviously any good relationship is based on trust and I trust you on this.

70    In cross-examination, Mr Robinson conceded that his exchanges with his lawyer reveal that he understood the risks associated with the choice of Brandmet as the entity that would employ him. He also admitted that he never sought confirmation from Mr Wright that his trust in Brandmet’s assets and financial standing as stated in his 1 March 2017 email was well placed. Ultimately, Mr Robinson maintained in cross-examination that he decided not to seek greater assurance from Mr Wright because he considered it imperative to maintain a mutual sense of trust between the two of them.

71    The finalisation of Mr Robinson’s employment contract continued over the following days. A person called “Amanda Roberts”, whose email signature described her title as ‘Manager Legal & Property’ at ‘BMF Construction’, emailed Mr Robinson on 7 March 2017. I infer she had reviewed the draft contract forwarded by Mr Robinson a few days previously. I also infer this is the “Amanda” to whom Mr Wright referred in the email I have extracted above. This email should be set out in full.

Good Morning Jeff

Further to your email, the areas for discussion around the Employment Agreement (the agreement) are as follows:

As it is presently drafted, it is heavily weighted in favour of the employee. The agreement is for a 5 year Fixed Period (the Fixed Period) and there are various obligations attached to this period which are onerous for BMF.

Term – Clause 3

The agreement is for a Fixed Period which seems fine in principle, but in practice can result in serious financial burdens for BMF if the appointment doesn’t work out, if BMF ceases to trade or for any other unforeseen circumstances.

Probationary Period – Clause 9

There is no probationary period. Further, if the appointment is terminated before the end of the Fixed Period, BMF is required to pay all entitlements up to and including to the end of the Fixed Period. This exposes BMF to having to pay out 5 years of salary plus entitlements even if the appointment lasted as little as one day. The entire Clause 9 should be deleted.

Suggest a probationary period of 3 months. This benefits both parties. An appointment at this level requires a probationary period.

Redundancy – Clause 22

Clause 22 (b) (ii) should be deleted. Again, BMF is exposing itself to having to pay out 5 years of salary plus entitlements in the event the position becomes redundant.

Employment law principles provide fair and reasonable payouts for redundancy.

Termination – Clause 23

Clause 23 is problematic. (a) and (b) must be deleted.

Currently, termination can only be carried out if both parties agree. Further, BMF is exposing yourself [sic] to having to pay out 5 years of salary plus entitlements in the event the position is terminated.

I am confident we can work around these issues and look forward to seeing you tomorrow at 3 PM.

Regards

Amanda Roberts

Manager Legal & Property

BMF Construction

(Original emphasis.)

72    A point emphasised by Mr Robinson was that Ms Roberts refers throughout this email to “BMF”, rather than to Brandmet, including when she is describing her views on the liabilities assumed by the employer. That is correct. Ms Roberts was not called as a witness and I do not consider much can be made of her use of this terminology in the circumstances.

73    Mr Robinson responded with the following email. The first line of his email might suggest he had had a telephone discussion with Ms Roberts, but there is only a 30 minute gap between the two emails. Whether or not there was a phone call is not material to my findings.

Hi both

Thanks for discussion.

I will look at this at home tonight and happy to discuss tomorrow.

I will make the comment that the 5 year term is indeed well in my favor by design and some of the discussion points are a retreat from what I thought I made very clear.

I am a 29 veteran at my current job and whilst there are no guarantees, I have more than enough work and credits earned that I can work at PAS until retirement. I am not unhappy in my current position both in terms of financial arrangements and work expectations.

I did explain to you, Ian, that one of my deal breakers was a safety net. I will not jump from this very safe harbor without a safety net. There is no way I will agree to a probationary period as once I walk out of this job I am very exposed.

Redundancy is also problematic for me.

As we discussed Ian, I am excited about the change of industry and moving to a more intimate and nimble environment.

But I also need to think about at my stage of my working life – if the size of the risk for you is too large, then I absolutely understand that but without a safety net I can’t contemplate a move.

Regs

Jeff

74    This contemporaneous email supports and confirms Mr Robinson’s evidence about the degree of assurance he was seeking before leaving his long-term employment with PAS Group. However, ultimately he signed an employment contract with the corporation Brandmet. The appropriate inference is that he was satisfied with the terms of that contract, including the ones favourable to him upon which he had insisted. I draw that inference in large part because of his own representation that he would stay with PAS Group if his conditions of employment, especially the five-year payout term, were not met.

75    On 8 March 2017, Mr Robinson executed the employment agreement. The other contracting party was expressed to be Brandmet. Brandmet was identified as the employer. Mr Wright signed the employment contract as the sole director of Brandmet.

76    In cross-examination, Mr Robinson stated that he considered the terms of this contract to be wholly consistent with the discussion that he had with Mr Wright over dinner in Southbank.

77    The agreement was expressed to be between Brandmet as the ‘employer’ and Mr Robinson as the ‘employee’. The recitals provided that Brandmet “conducts the business known as BMF Construction”. Mr Bartlett placed some emphasis on this feature in argument but, as I explain, I consider it does not assist Mr Robinson’s contentions. In the course of cross-examination, Mr Wright confirmed that this recital was drafted by Mr Robinson’s lawyer, and agreed in cross-examination that the recital was “false”. He was re-examined on this point, and he gave the following answer about whether the recital was correct or incorrect:

I would say it partly does it [ie conduct the business of BMF Construction] because it does all its administration. But BMF runs the day-to-day operations. The actual construction work. So probably not. Partly – partly correct. Partly incorrect.

78    Mr Bartlett also seized upon Mr Wright’s answer in cross-examination, in support of his client’s case. However, as Mr Wright clarified in the next section of his cross-examination, the recital was “false” because Brandmet conducted the business of “administrative services for entities owned by…. The Wright Group”. Mr Wright accepted it was BMF Pty Ltd, which conducted the business of BMF Construction. That evidence is consistent with the evidence he gave in re-examination. On the issues presented for resolution by the Court, this evidence does not have the significance Mr Bartlett sought to attribute to it in submissions on behalf of Mr Robinson, or that Mr Robinson sought to attribute to it in aspects of his own evidence.

79    There was no probationary period stipulated, as Mr Robinson had insisted, and, also as he had insisted, the contract was for a fixed period of five years.

80    The employment agreement provided:

3.    Term

This agreement shall come into force on the date it is signed by both parties and shall remain in force until renegotiated or terminated pursuant to any provision of this agreement.

The term of this employment agreement is for a fixed period of five (5) years from the date it comes into force ("Fixed Period").

…

22.    Redundancy

(a)    A 'redundancy' occurs where the employer decides they no longer want the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour.

(b)    Where a termination of employment occurs due to a redundancy:

(i)    any entitlement to redundancy pay will be in accordance with the National Employment Standards; and

(ii)    the employer will pay the employee all unpaid salaries, wages, commissions, bonuses and any and all other employment entitlements from the date of the redundancy up to and including to the end of the Fixed Period, as the employee directs.

23.    Termination of employment

(a)    The employee[’]s employment may only be terminated by mutual agreement.

(b)    In order to terminate the employment of the employee, the employer will provide the employee with eight (8) weeks[’] notice and the employer shall pay the employee all unpaid salaries, wages, commissions, bonuses and any and all other employment entitlements from the date of termination up to and including to the end of the Fixed Period, as the employee directs.

(c)    In addition to the notice above, where the employee is over the age of 45 years and has at least two years service, the employer will give an additional week’s notice or payment in lieu.

(d)    Payment in lieu of notice must be made if the required period of notice is not given. In calculating any payment in lieu of notice, the ordinary time rate of pay for the employee concerned will be used.

(e)    Where the employee elects to terminate their employment with the employer, the employee will give a minimum of eight (8) weeks[’] notice to the employer. Where the employee fails to give the required period of notice, the employer may withhold money due to the employee equal to the pay for the period of the notice.

(f)    Upon receipt of a request by the employee, the employer will provide a written statement specifying the period of employment and the classification or type of work performed by the employee.

(g)    Upon termination the employee shall immediately deliver up to the employer all records, equipment, credit cards and any other property belonging to the employer to [the remainder of this paragraph was obscured in the Court Book].

81    Mr Robinson’s title was expressed as “General Manager” and his duties were “broadly management, negotiation and procurement”, although the agreement stipulated that Mr Robinson was required to carry out other duties reasonably required by “the company”. This term was not defined in the agreement. The agreement also contained a term (cl. 4(a), read with the Schedule to the agreement) that Mr Robinson must:

perform duties from time to time on a permanent or temporary basis for the employer’s (or Director[’]s) related entities.

82    The Schedule specified that Mr Robinson reported to Mr Wright.

83    Brandmet was also entitled to amend Mr Robinson’s duties from time to time, after consultation with him (clause 4(c)).

84    The agreement included an acknowledgment by Brandmet that it was obliged to act fairly and in good faith, as required by law, equity or statute (clause 4(e)(i)). It also included a provision requiring Brandmet to provide Mr Robinson with a phone, a laptop with business software, a credit card for business expenses, a carpark at “the South Melbourne office, or other locations where [Mr Robinson] is required to work” and economy domestic and business class international flights “if any” (clause 7).

85    Relevantly, the agreement obliged Mr Robinson to work from 9am to 5pm from Monday to Friday (clause 6(a); Schedule). Clause 6(d) provided that, if Mr Robinson were late for work or unable to attend work, he was to personally advise his supervisor as soon as practicable. Mr Robinson was also obliged not to engage in any paid or unpaid employment that might, in Brandmet’s opinion, adversely affect the performance of his duties with Brandmet (clause 19(c)).

86    There is no doubt the employment contract contemplated Mr Robinson would, or could, perform work under the contract in the business of BMF Construction. There is also no doubt that Mr Robinson’s employer was the corporation named in the contract, Brandmet. I explain in more detail why I have reached these conclusions later in these reasons.

The work performed by Mr Robinson after his employment commenced

87    Mr Robinson commenced his new role on 18 April 2017. The evidence demonstrates that he worked closely with Mr Wright, receiving written directions via emails from iwright@bmfcon.com.au or iwright@bmfconstruction.com.au with the signature ‘Ian Wright Managing Director BMF’. He was issued with a business card with the ‘BMF’ logo and provided with an email address at the @bmfcon.com.au and @bmfconstruction.com.au domains. Mr Wright agreed in cross-examination that it was BMF that provided Mr Robinson with the equipment described in clause 9 of his employment contract, and reimbursed him for the expenses he incurred in connection with his employment. At the website bmfcon.com, Mr Robinson was listed as BMF’s General Manager, with a photograph of him in front of the BMF Construction logo. One important piece of work that Mr Robinson delivered was the implementation of an accounting program called ‘Sage Accounting’, which controlled the income and expenditure of BMF, as well as the payroll of BMF and Brandmet.

88    Mr Robinson also performed work for Mr Wright’s other companies, including Wilson & Market and Magnum + Queens. In cross-examination, Mr Robinson agreed with the characterisation in Mr Wright’s affidavit that he “regularly” worked at the Wilson & Market restaurant on Friday afternoons, and, at least during some periods of time, he worked for “several hours each week … providing marketing, finance and administration services” for Magnum + Queens.

89    In his affidavit evidence, Mr Robinson stated that he never did any work for Brandmet, except for creating one invoice dated 1 April 2020. Mr Wright disputed this assertion. His evidence was that all of Mr Robinson’s work was work for Brandmet, as the vehicle for providing his services to BMF, Wilson & Market, Magnum + Queens and other businesses. This of course reflects the parties’ competing views on the question of who was Mr Robinson’s employer.

Mr Wright’s decision to change his business structure

90    The narrative of events from this point coincides with the commencement of the COVID-19 pandemic in Australia, and around the world. That coincidence is not irrelevant to the course of events which unfolded. In the first half of 2020, the evidence suggests the relationship between Mr Robinson and Mr Wright began to change. Mr Wright proposed to enter into a joint venture with a property developer named Harry Fung. Mr Wright had commenced discussions with Mr Fung about this proposal in late 2019. Adam King, an individual who had been working with Mr Wright (including for some period of time apparently through Brandmet), had (on Mr Wright’s affidavit evidence) previously worked with Mr Fung and his company Base Group Property Pty Ltd on a number of property development projects for which Mr Fung had arranged funding through his business connections. Mr Wright was introduced to Mr Fung by Mr King. I accept Mr Wright’s affidavit evidence on these matters. He was not cross-examined on these issues.

91    Mr Wright deposed that his intention was that Mr Fung’s connections and expertise in property development could help Brandmet expand from its role as a company providing administrative and support services and improve BMF’s chances of securing building contracts through that expansion. I accept that evidence, and Mr Wright was not cross-examined to suggest that evidence was untrue.

92    A memorandum of understanding was executed between Brandmet and Base Group on 11 February 2020. The memorandum provided that Brandmet would be used as the vehicle for a joint venture in which Mr Wright and Base Group (or another entity nominated by Mr Fung) would each invest $500,000, apparently to service existing tax liabilities in Mr Wright’s group of companies, which had been consolidated in the Brandmet entity. Clearly, this was one of the key benefits Mr Wright sought to secure through the joint venture. Mr Fung was also to be appointed a director of Brandmet, which occurred on 15 February 2020. The proposal was for Brandmet to operate as the joint venture vehicle between Mr Fung and Mr Wright, providing project management services to Mr Wright’s businesses and Mr Fung’s businesses (chiefly, Base Group). According to Mr Wright, Mr Robinson was to continue as an employee of Brandmet, with his services to BMF or other businesses being charged out at an hourly rate from 20 April 2020. In other words, it was envisaged Mr Robinson would play a key role in the joint venture.

93    So much is apparent from an email sent by Mr Wright to Adam King on 5 April 2020. It is worthwhile setting out this email in full as it is a contemporaneous account by Mr Wright, unaffected by these proceedings, about what he sought to achieve by the joint venture, how he saw it working, and what he considered Mr Robinson’s role would be:

Adam

Further to my meeting with Harry and our many discussions about the J/V here is a very broad summary of where I see the cash flow and where we go from here.

We have no liabilities in Brandmet, as we have cleared them all with the exception of the tax liability and Jeff’s monthly wage. We get enough revenue at the moment to cover Jeff’s wages and some spare. This is without project management income, which we are able to get and will start pursuing. The reality for us is that I can[’]t run BMF building operations and manage tenants for the properties we own and also project manage for others. You are doing a great job with the tenants and financial management, but it’s hard to see how we could work any[ ]more hours. We also have to think about [if] one of us gets ill or can’t be at work, what our fallback position is. If Harry directs Jeff and another staff member we can then expect to;

1.    Get our own projects, where we choose to, managed at a fixed price. (while we are not required to have a project manager by our financiers at the moment, this may be a requirement in the future)

2.    Direct clients who want project management to Brandmet, declaring our 50% interest, and being able to get BMF to tender. In the past we have passed the project management on to others such as Mark Byrne, Gallagher Jeff’s and Andrew who left GJ and formed his own consultancy. All these people gained substantial fees from our clients and in less than half the instances BMF got a building contract. So we missed out on the management fees as well as the building work.

3.    Be able to get Jeff to assist, on a set fee, for other projects or ventures. This may be a revamp of MQ or the proposed container hire business.

Current liabilities are the tax which is $885k, there is no wage liability until mid-May for Jeff. If we are unable to work because of Covid 19 ( unlikely because the project management can be done remotely) Jeff would be stood down until work can start again.

Monies in – We will have contributed in cash $430K and Harry $500k = $930k more than enough to pay the tax liability. I think Harry is expecting to immediately pay half the tax and ask the ATO for relief on interest and pay the remaining amount in 4-5 months. I don’t see why we would do this, I accept asking for relief on any interest that may be levied.

Expected income for the next 3 months, would be $110k from us for the setting up and management of lot 1 Dunmore. As this is a $7.5M build, this is a 1.5% fee. Harry questioned this and said he thought that 2- 2.25% would be the normal expectation. I explained that the fee proposed was reasonable given the type of project, being an industrial warehouse and Jeff’s exposure to these projects over the last 2.5 years. I also discussed with him that we believed our budget was realistic and we would expect to be able to “get back” the management fee by savings in procurement.

Harry accepted this was a normal and reasonable premise. Remember we get 50% of the profit from income generated.

We also have projects for our clients who have expressed an interest in project management where we wouldn’t be interested in the building. Residential apartments and commercial fit outs. Based on last year I would have thought we could raise at least $420k in fees. I note our fees to date for Paramount are over $140K and we will still be able to tender the works for BMF. As discussed we need to hand the works over at tender stage and end our management at that point. The developer will manage the tender process using the tender package we have prepared. This scenario is great for us, but most people see you either as a builder or a PM not both.

My understanding is Harry currently has 5 projects he requires assistance on and will start these with Jeff on the 20th. Some are his own and some for clients. We need to agree on what the fees will be, however I think over a 5 month period, the fees will be in the order of $380K.

I think the best way to view this, as we have discussed, is that we have the opportunity to generate revenue without having to take on the full liability of more staff. Harry has spare office space for 4 staff at his offices. No need to rent premises or hire accountancy staff. I will let you work out the details of BAS returns and monthly reporting with Harry.

Harry and I have agreed to review distributions after 6 months. After we quit the current liabilities and manage liabilities going forward, I would think a reasonable expectation is for there to be an excess of $350k to $400k in the first 12 months of operation.

This will give us at least $150k plus. Hopefully around $250K

It is important to note that neither Harry or myself will charge for our time, as with all our J/V, however Harry will bill his staff[’]s time as will we.

Once we get clarity on fees and capacity I will get you to work on a cash flow with Harry. This won[’]t take much to do.

I appreciate your comments that if we kept Brandmet in its new configuration we could get more revenue, but I think you can see over the last 6 months how much work it has taken to get BMF into a lean, well managed business. The devil is always in the detail. There is only so much work we can do. I am sure Harry would be interested in buying us out of our 50% share once he knows what income he can generate. If this was $350k, I would consider this.

Jeff has spent 40% of his time on delinquent debtors. We will not be in that position going forward. He can direct these energies into revenue raising activities. I think he and Harry will be a good fit. Matt, Nick and Alex are happy on most levels I am running the day to day operations of BMF, especially Matt.

Cheers mate.

Be well keep safe x

Ian Wright

Managing Director

BMF

94    Consistently with this understanding as expressed by Mr Wright, Mr Robinson was to be the only person remaining on the payroll of Brandmet. Before the joint venture commenced, all the other individuals who had been on the payroll of Brandmet (I make no findings about whether they were employees of Brandmet) were moved. Adam King, BMF’s Chief Financial Officer, was transferred from Brandmet’s payroll to BMF’s payroll. Dale Hardy, an accountant (or “bookkeeper”, as Mr Wright described him), was also transferred from Brandmet’s payroll to the payroll of another entity owned by Mr Wright. The fate of Amanda Roberts was not disclosed in the evidence. Little evidence was led about the changes to Brandmet’s payroll in anticipation of the joint venture, and none of the other people who had previously been paid by Brandmet was called to give evidence by either party.

95    Mr Robinson’s evidence was that he had no contemporaneous knowledge of these changes and only became aware of them through discovery in this proceeding.

96    Mr Wright was cross-examined on these circumstances. It was suggested to him that Mr Robinson knew nothing of these changes at the time, and he rejected any such suggestion. Some of Mr Wright’s evidence under cross-examination was to the following effect:

Well, Mr Robinson’s evidence was he wasn’t aware of these people being – he didn’t do the payroll runs. He wasn’t aware these people had been ceased to be paid by Brandmet. He only became aware of that in these proceedings. Is that possible?---It could be possible, but that would concern me because Mr Robinson’s role at BMF and at Brandmet and all the other entities he – that he worked for was to always ensure that my moneys were not being expended incorrectly.

….

Let’s take an Adam King, and then he became being paid by BMF. Yes? And there are others?---Well, Mr King is a consultant and sometimes he’s paid by other entities, but yes.

Mr Hardy?---Mr Hardy is the bookkeeper, and he would have – Mr Hardy continued on at BMF.

Yes. So he was being paid by Brandmet up until December 2019?---Correct.

And then BMF commenced paying him from the January 2020; correct?---That would be my understanding.

Yes. And was a new offer of employment put in place, a contract in relation to that?---Well, I’m not aware of that. Mr Robinson would have done that, would have done both.

….

You’re the MD and he was the GM?---I can’t comment on what Mr Robinson would have known or not, but he was employed there. I would have attended the office one to two hours a week.

Right. But his evidence is he only became aware in these proceedings about the movement of those people from Brandmet to BMF, and you’ve conceded that’s entirely possible?---I’m not conceding that what Mr Robinson is saying is accurate at all. I’m – I’m stating clearly that that would be surprising seeing his employment was to administer those things.

97    I find Mr Wright is likely to have known more about the circumstances of various individuals moving on and off Brandmet’s payroll than this evidence discloses. The joint venture was a matter in which he was personally involved, and that he personally directed, at least at the start. I find that, considering the evidence as a whole, Mr Wright deliberately arranged the joint venture in a way which left only Mr Robinson on the payroll of Brandmet. There was nothing unlawful in him doing so. The evidence demonstrates at least he and Mr Fung envisaged Mr Robinson would play a key role in the joint venture. I accept this intention may have been communicated to Mr Robinson as an afterthought. I find that neither Mr Fung nor Mr Wright gave any real consideration to Mr Robinson’s personal interests, but rather treated him as an employee who was subject to direction about the performance of his duties. Mr Robinson’s evidence was that he understood that he would remain under the supervision of Mr Wright once the joint venture had been implemented.

98    After this restructuring, Brandmet was left with only a significant tax liability and – according to Mr Wright – the liability to honour Mr Robinson’s employment agreement.

99    On 4 April 2020, Mr Wright emailed Mr Fung to set out the details of the proposed joint venture, including that Mr Robinson was “ready to start under [Mr Fung’s] supervision on the 20th of April 2020”. He told Mr Fung that Mr Robinson understood that he would have a desk at Base Group’s office. Mr Wright also noted that some of the projects of BMF and Base Group could be impacted by the COVID-19 pandemic. Mr Fung replied to Mr Wright’s email on 6 April to confirm that Base Group was in agreement with those details, and Mr Wright transferred 50% of the shares in Brandmet to Mr Fung later that day.

Mr Robinson’s knowledge of, and reaction to, the joint venture and to the role assumed by Mr Fung

100    As I have described, Mr Robinson was not directly involved in the joint venture arrangements. Mr Robinson agreed in cross-examination that Mr Wright discussed the prospect of the joint venture with him at some stage prior to 4 April 2020.

101    On 17 April 2020, Mr King emailed Mr Robinson, copying Mr Wright and Mr Fung, to summarise how the joint venture was proposed to work and what Mr Robinson’s role would be. It is worthwhile setting that email out in full:

Hi Jeff,

This email gives a bit of a summary of the Brandmet JV with Harry and how it is going to work.

The broad structure on how the JV will function is set out below:

1.    The JV is focused on providing Project Management services to property developers and investors.

2.    The JV will commence on 20 April 2020.

3.    You will be responsible for managing the JV.

4.    If BMF or any of our entities require your services on or after 20 April 2020, you will be charged to us at a rate of $190.00 (ex. GST) an hour limited to 8 hours a week. This applies for the first 6 weeks of the JV, which is a total of 48 hours.

5.    After this the rate for your services will be $235.00 (ex. GST) per hour.

6.    The rates and terms in points 4 and 5 will also apply to any work done for Harry’s entities

7.    Work on our property projects will be done on a fixed fee quote. The same will be the case for Harry’s projects.

8.    The JV will be run from Harry’s office at 1 Alfred Place, South Melbourne.

9.    A Brandmet account for the JV has been opened and all expenses will be met from this account.

10.    Equity contributions from both Ian and Harry are being made into this account.

11.    Harry will manage the cash flow of the JV.

Monday’s meeting will go through more detail on what projects you will be working on and what, if any assistance you may need.

The idea is that Brandmet will manage some of our projects (our principle projects, not BMF projects) going forward and win other business from 3rd parties, i.e.:

1.    We will get our projects, where we choose to, managed at a fixed price ( while we are not required to have a project manager by our financiers at the moment, this may be a requirement in the future).

2.    Direct clients who want project management will be referred to Brandmet, although we will declare our 50% interest, thus allowing BMF to tender. This will allow us to earn PM fees and also, hopefully, win the build job. In the past we passed the PM work on to others and in most cases we missed out on the PM fees and build job.

Our understanding is Harry currently has a number of projects he requires assistance on and will start these with you on the 20th. Some are his own and some for clients.

We forecast that fees will be in the order of $380K over the first 5 months.

The expectation is for there to be an surplus of $350k to $400k in the first 12 months of operation, which will be distributed 50/50 between Ian and Harry.

I hope this helps for now.

Regards

Adam King

Chief Financial Officer

BMF

102    Mr Robinson’s evidence was that he was apprehensive about this proposal and felt that Mr Wright had provided him with no real understanding of the joint venture’s origin or purpose. Mr Robinson had the impression that he had been ‘by-passed’ in the arrangement of the venture, and requested a meeting with Mr Fung, Campbell McLeod (a director of Base Group), Mr Wright and Mr King to discuss the proposal. This meeting was held at Base Group’s office on 20 April 2020, and was foreshadowed in Mr King’s email extracted above. Mr Robinson’s evidence was that this was the first time that he and Mr Fung met, and I accept that evidence.

103    Again, it should be recalled, as Mr Robinson accepted in cross-examination, that by this stage, one effect of the pandemic was, amongst other things, that people were working from home, including Mr Robinson. He was not required to attend work at the Base Group offices as the joint venture arrangement contemplated.

104    There are conflicting accounts of what transpired at the 20 April 2020 meeting. According to Mr Wright, Mr Fung told Mr Robinson about the projects he would be working on, an account which Mr Robinson denies. According to Mr Robinson, he was told by Mr Fung that his office had not yet been set up, and therefore the joint venture could not yet commence, and then he was told by Mr Wright that there was plenty of work relating to BMF to keep Mr Robinson busy. It is not necessary to resolve these conflicting accounts in order to resolve Mr Robinson’s causes of action. I do not consider either Mr Wright or Mr Robinson had a clear recollection of what was actually said at that meeting.

The collapse of the joint venture

105    It did not take long for the joint venture to collapse. Mr Wright had contributed $370,000 to the joint venture account, but Mr Fung was yet to make his investment. Mr Wright deposed that he continued to make contributions to the joint venture, but in early May he decided that it was likely to collapse, because Mr Fung’s investment was not forthcoming. He was not challenged on that evidence and I accept it. There were several references in his cross-examination to the effect of the pandemic on his businesses. In his affidavit at [24] he deposed:

As with many other businesses, my business activities were badly affected by the onset of the COVID-19 pandemic, from about March 2020. The hospitality business partly owned by Slinky Bob (Magnum + Queens) experienced financial difficulties at this time and the businesses of BMF and Brandmet were also affected by the close-down of non-essential businesses.

106    In his affidavit at [56], Mr Wright gave this general explanation for what occurred:

Due to the COVID-19 pandemic, Mr Fung also had problems getting funding for Base Group’s contribution to the Brandmet JV. Given the uncertainty around Base Group’s position on the Brandmet JV, Mr King and I discussed with Mr Fung in early May 2020 the prospect of Base Group acquiring the remaining 50% of my shareholding in Brandmet.

107    In his affidavit evidence, Mr Wright described opting out of the joint venture, but did not explain why. He deposed:

Although it had been anticipated that Brandmet would operate as a joint venture between myself and Mr Fung, by the end of April 2020 I had decided to transfer the remaining 50% of Brandmet to Mr Fung. This occurred on 1 May 2020.

108    He was not cross-examined any detail about the reason he opted out as suddenly and quickly as he did. He was asked why it did not proceed and gave this answer:

It fell over because he [Mr Fung] didn’t put his money in, and I didn’t want to be in a position where I was the one putting money in all the time and then simply to get half of it back. We – you know, it – at that point it was either I buy Mr Fung out, or he bought me out.

109    He also gave this evidence:

Why it was done?---And in effect, I think, in our discussions we hadn’t put a deadline or been unreasonable in any way. But we really had expected to see moneys late March or early April, because the tax debt would have been coming due in April or May of 2020.

Right?---And the expectation was the tax debt would be cleaned up, and we would funds [sic] in there. We would get the savings of having a single office, me not needing to have – you know, those administrative staff, Mr King could take those duties on. And then we would be able to charge clients for a consultancy service, which effectively they had been getting [at] no charge for many years.

110    In my opinion, it is more likely than not that these were at least part of the explanations for Mr Wright’s sudden departure, combined with the uncertainties being produced by the pandemic. From my observations of Mr Wright, and my consideration of his evidence as a whole, I find he is an experienced businessman, who is adept at putting his own interests first. He is astute to attempt to arrange his business affairs in a way most advantageous to him. As in the circumstances which give rise to this proceeding, sometimes the decisions he makes may adversely affect others. I find he is not overly troubled by that. He looks after his own interests. There is nothing unlawful in him behaving in that way.

111    On 11 May 2020, Mr Fung made the following offer to Mr Wright:

Dear Ian,

My investment group has advised that we need to adjust our original position with the Brandmet JV due to the current economic climate.

As per our recent discussions, we now hereby provide the following offer for Brandmet Pty Ltd for you to consider:

1.    An immediate appointment of a new director by our investment group.

2.    All intellectual property of Brandmet to remain within the Company.

3.    All current banking account funds to remain with the Company.

4.    All current outstanding creditors to remain with the Company.

5.    All [existing] employees are to remain with the Company.

6.    The resignation of Mr Ian D Wright within 7 days.

7.    The sale of any and all shares in Brandmet Pty Ltd held by Mr Ian D Wright, and/of his associated entities to be transferred to the newly appointed director for $1 within 7 days.

This offer is valid until close of business on 13 May 2020, should you require any further clarification, please do not hesitate to contact me.

Regards,

Harry Fung

Head of Acquisitions Base Group

112    It is to be noted that this offer expressly included the retention of Brandmet’s existing employees. That can only be a reference to Mr Robinson. While it is far from decisive, the fact that Mr Fung’s offer was based on Mr Robinson being an employee of Brandmet is not without significance, and is consistent with the written contract.

113    On 12 May 2020, Mr Wright responded to Mr Fung in the following terms:

Harry

Thanks for setting out the terms of the offer to acquire my 50% share of Brandmet. As you are aware from our recent discussions, Adam and I believe the company is worth more than its current liabilities, which is what your offer represents. I understand your investment group[’]s position has changed since our agreement in early December 2019. We too are noticing concern amongst our existing clients and some joint venture investors. So we do appreciate the level of uncertainty for some development projects over the next few months.

I have spent most of today discussing the offer with Adam, appreciating it is the most you are prepared to offer and after much deliberation will accept the terms as you have set out below.

For clarity, please note the following;

1.    I have already resigned as a company director, effective on the 1st of May 2020. I appreciate you know this already. This was agreed earlier so as to avoid any possible conflict of interest from our existing BMF clients seeking project management services.

2.    We will pay the invoice to Brandmet for services provided in May 2020.

3.    We expect we can still have a discounted rate for services as per our agreement. We appreciate there are now 52 hours left in total at the reduced rate.

4.    Adam will attend to the banking requirements as soon as we have a signed agreement.

While it isn’t on the basis I would have hoped, I wish you every success and hope some of your projects come back on line sooner than later. I am sure the Covid19 era will pass sooner or later, hopefully sooner. Adam and I will be in contact tomorrow and discuss what works we currently need assistance with and arrange to sign documents and transfers.

Stay well.

cheers

Ian Wright

Managing Director

BMF

114    Mr Wright sent an email to Mr King on 12 May 2020. He sent this email at 7.34pm, minutes after he had responded to Mr Fung’s offer, at 7.26pm, as I set out immediately above.

Adam

Thanks for spending so much time discussing this today. The points you made were very salient.

1.    We don’t have the capacity to manage the building works and project manage.

2.    Geoff Carroll is now 74 and can[’]t be expected to work full time anymore and still has 2 months left on existing projects and his time is needed on BMF estimating.

3.    People will always see a conflict of interest if we have a fiscal position in an entity we recommend. While it seems an obvious conflict to some, I don’t see an issue if it is declared, however I concede the point.

4.    If there is going to be little or no income for up to 6 months, there is no point in remaining in the entity, as there is the possibility of the liabilities increasing.

5.    We still need to push forward with MQ and get some management assistance there in the next 6 months.

6.    The building and development works need to be carefully monitored and we have thinned BMF enough, so myself and Matt need to focus on this.

I did discuss trying to get a $100k credit towards management fees to be used within 1 year, but Harry was adamant his investors wouldn’t come at it. I think they were worried we might use the services and not pay for them. I appreciate this is a risk you put forward.

At least we tried.

Maybe we can project manage when I retire from building!!!! Lol

Cheers mate

Ian Wright

Managing Director

BMF

115    Mr King sent an email to Mr Wright the next day, 13 May 2020:

Hi Ian,

This is a disappointing end to what was a promising beginning, but I guess that’s how many businesses turn out.

To be honest though, I am not sure if we have any other options at this stage.

If they can’t raise the money then maybe we are better off not partnering with them anyway.

We have had too many recent JVs, such as M & Q and Wilson and Market where we rely on others to do the work and we provide all of the capital, and these have all been financial disasters. We cannot afford another one of these.

I can tell you from my personal perspective, I don’t have much time that I can put into the Brandmet JV, and I know it is the same for you, so maybe we just let them give it their best shot and see how they go.

I overlay the above comments with the fact that we will need to monitor that Harry keeps to his word with you to share some of the fees earned by Brandmet Pty Ltd. We will need to keep close to him on this issue.

After all, we did everything we were required to do for this JV, including making our equity contribution above all.

I will tidy up all of the administrative formalities with Andrew.

Regards

Adam King

Chief Financial Officer

BMF

116    It is notable that Mr Wright did not communicate with Mr Robinson at all, let alone in this detail. Mr Wright accepted as much in cross-examination. That is consistent with the observations I have made at [97] above. Mr Wright, I find, considered Mr Robinson would be Mr Fung’s “problem”, not his. Legally, he was correct, because Mr Robinson remained an employee of Brandmet. Nevertheless, it was not an appropriate way to treat Mr Robinson in any human or professional sense.

117    On 13 May 2020, Mr King provided documentation to an external accountant for Mr Wright to resign as a director of Brandmet and for his remaining shares in the entity to be transferred to Mr Fung at a price of $1, effective 1 May 2020.

118    Although as I set out below, by 12 and 13 May 2020, Mr Robinson had become suspicious about what was happening with the joint venture, it was not until a few days later, on 15 May 2020, when he did not get his pay, that he realised something was badly wrong.

The increasingly strained relationship between Mr Robinson and Mr Fung

119    Notwithstanding his exclusion from the discussions about the direction in which the Brandmet joint venture was heading, I find that Mr Robinson was aware that something was awry in his employment. Thus, on 8 May 2020, he requested a further meeting at Base Group’s offices. Mr Fung and Mr Wright did not attend this meeting, but Campbell McLeod did. Mr Robinson’s evidence was that Mr McLeod at this time was the Director of Base Group. I accept that evidence. Mr McLeod told Mr Robinson that the joint venture had no work coming in. Mr Robinson deposes that he called Mr Wright “immediately after the meeting”, and that the two men agreed that Mr Robinson would continue with his usual work for BMF and Magnum + Queens.

120    On 14 May 2020, Mr Robinson telephoned Mr Wright to ask Mr Wright to confirm that he would receive his monthly wage the following day, being the monthly pay date that was prescribed by Mr Robinson’s employment agreement. In his statement of claim, Mr Robinson particularised that he made this enquiry because he had been told by BMF’s internal accountant that BMF would not be paying Mr Robinson’s monthly wage, but no evidence about this conversation was led at trial. Mr Robinson’s evidence is that Mr Wright told him that the “Joint Venture” would pay Mr Robinson’s wage, and that Mr Wright would “chat with Mr Fung” about Mr Robinson’s pay.

121    Mr Robinson was not cross-examined about this account, and Mr Wright gave no evidence about it. There is no reason not to accept Mr Robinson’s account. I find it is more likely than not to be consistent with the self-interest I have found drove Mr Wright’s conduct at the time; it is unlikely Mr Wright wanted to say anything further to Mr Robinson about his then imminent plans to divest himself of his shares in Brandmet.

122    Mr Robinson’s evidence was that his monthly salary on 15 May 2020 was not paid as it usually had been. His evidence on this was not challenged and I accept it.

123    In his affidavit evidence, Mr Robinson described the sequence of events which occurred over the next few days. His evidence of these events was not challenged in cross-examination and I accept it. Omitting the references to the annexures exhibiting the relevant emails, his evidence was:

On 18 May 2020, I received a stand down notice from Brandmet (the stand down notice) via an email sent to my BMF email address. The stand down notice advised that Mr Wright was no longer involved in Brandmet and that there were significant changes to the Joint Venture. The email was signed by Mr Fung as Head of acquisitions, Base Group. [….]

On 18 May 2020, I forwarded the stand down notice to Mr King, CFO of BMF, and then immediately called him. Mr King told me that the contents of the email were false as Mr Wright was still a 50% shareholder in Brandmet.

On 18 May 2020 at 2: 15pm, I received an email from Mr Wright. He said that he was 'shocked' by the stand down notice and would discuss with Mr Fung the next day. He did not mention that the Joint Venture was proceeding without him. [….]

On 18 May 2020, I spoke with Mr Wright on the phone. I told him that someone must pay me for my work at BMF, which was due on 15 May 2020. I also told him that I had never done any work for the Joint Venture and was only working for BMF and sometimes M&Q. Mr Wright reconfirmed that I would get paid.

On 19 May 2020, I called Mr Fung. In summary, Mr Fung told me that:

(a)    things are on hold as they are trying to get funding;

(b)    Mr Wright has nothing to do with Brandmet; and

(c)    he will know more next week about my pay.

On 19 May 2020 at 11:23am, I summarised my phone call with Mr Fung in an email to Mr Wright. [….]

On 19 May 2020 at 11:45am, Mr Wright responded to me by email and said that he will talk with Mr Fung. He also advised for the first time that he was no longer a director or an employee of the Joint Venture, but that he was only a client. At this point I still believed Mr Wright owned 50% of the Joint Venture. [….]

On 19 May 2020 at 12:02pm, I sent a follow up email to Mr Wright explaining that I should not be caught in the middle of his arrangement with Mr Fung. I reiterated that I am working for him and BMF and was not getting paid for my work. […..]

(Original emphasis.)

124    The “stand down notice” from Mr Fung should be reproduced in full:

Dear Jeff, Campbell and Joe,

I am writing to advise that there have been some significant adjustments to Brandmet in the past few weeks.

Firstly, Ian Wright is no longer a director or shareholder of Brandmet and we thank Ian for his extended efforts and contributions to Brandmet over the years.

The Base Group projects have been hindered with issues relating to council, builders and finance, hence these projects are currently on standby which does not provide Brandmet with any work.

Brandmet has also appointed a new director in Mrs Chun Fong Leung. Mrs Leung is an experienced businesswom[a]n with various investments in the property development and financial services sectors.

We are now awaiting for funding to continue operations of which we anticipate will be complete within the next few weeks.

Therefore, effective immediately, all staff and management are to be stood down until further notice of when funding will be available to continue with Brandmet’s operations.

Should you require any further clarification, please contact me directly.

Regards,

Harry Fung

Head of Acquisitions

Base Group

125    Although this “notice” was addressed to three people, the parties’ oral evidence did not focus on whether other people were also stood down. However, some of the documentary evidence before the Court, from the Fair Work Commission, might have suggested that other people received similar notices purportedly on behalf of Brandmet.

126    Nevertheless, Mr Robinson continued to perform work, but it was work related to Mr Wright’s business activities. There is also evidence of Mr Robinson’s concerns being conveyed to Mr Wright. Finally, there is evidence that at this point Mr Robinson had accepted the reality of a change in his duties, and of his work moving to work for the joint venture, with Brandmet as the vehicle for that work. However, he was clearly (and correctly) concerned about his financial situation and who was going to pay him, especially after the purported “stand down notice” issued by Mr Fung.

127    In an email sent early in the morning of 22 May 2020, Mr Robinson wrote to Mr Wright:

Good morning,

I have been giving my situation some thought and I think everyone is overthinking it.

1.    The JV with Harry is obviously on hold at the moment - he does not have any work to put into it right now and by the same token, [n]either do you.

2.    I have never stopped working full time for BMF and M&Q and continue to do so. You have asked me to so and I have done exactly that

The simple solution is

1.    Kick the brandmet JV off when there is something to kick off with

2.    I continue to do my work for BMF/M&Q (as there is a still enormous amount of work to do, mostly with M&Q) and get paid by whatever entity Adam and Dale are getting [paid] by

I am not sure why we are relying on Harry to pay me when it is clear that I have done zero work for the JV and all my time has been spent on your stuff. Freeze the JV until it has work to do.

I ask respectfully that you consider this and action it immediately. I have been working away at your behest and all I ask is that I get paid for my work by the company that I am doing the work for.

I know you are aware of what I am doing at present ( and have been doing) but [in] an email following I will detail work plans.

Kind regards

Jeff Robinson

General Manager

BMF

128    Shortly after the first email, the same morning, Mr Robinson wrote to Mr Wright in the following terms:

Good morning,

Whilst you are aware of the work I am doing I thought it helpful to give you a quick run down on what I am doing/have been doing/will continue to do

M&Q

1.    Getting Virginia out of the business - with SBA-thankfully all over but there will be a little clean up

2.    Marketing -this will drive growth

a.    Working with Michelle Campbell to get the marketing plan complete

i.    This plan includes all opportunities that need to be prioritized, fleshed out and costed

ii.    Establish the overview marketing calendar and the detailed marketing calendar

b.    Work with Andrew S on SEO and other digital solutions to drive traffic to the site (sales)

i.    create multiple landing pages to narrow the focus to specific customers

ii.    work on returning customers

iii.    I have spent time investigating our google analytics and it is poorly set up. This tool is fantastic if set up correctly as it can allow us to see where our sales are coming from ( and not coming from) in terms of channels ( insta, adwords, etc), in terms of demographics ( where and who), in terms of customers - (new or returning), It even gives information as which pages are liked. When we do a new campaign we[ ]are not defining it in GA so we cannot gauge its success as it just gets lost in the mix of all online sales. It has not been optimised so we are not really getting enough useful information as to what we should and shouldn’t do

3.    Financial and procurement

a.    The books are in a state and therefore it is difficult to give you meaningful reports or do good analysis to further drive the business. This is being corrected as we speak.

b.    Procurement targets are required. We need to get our creditors up to date so we know who we buying what from and also better sales and stock control so we know exactly what we are selling rather than relying on intuition

c.    Business calendar to be created so we do forget things like BAS ( they are late), super ( just recently up to date), workcover (forgotten) etc

4.    Stock - I am bringing a guy into the business next week to see our set up and meet Kirsten who specialises in RFID stock solutions. We are missing sales and are under and over buying stock as our stock control is very loose and acting intuitively. We have no idea on shrinkage.

BMF

1.    I know this is a bug bear of yours but we both have to agree that when my time reduces on your stuff you want your existing staff to be able do my work efficiently and accurately. It has been handed over and there are teaching notes I have given on all my tasks but to expect the team to be experts straight away on stuff they have not done before is just folly. When they do ask for help I do not do the work for them, I show them what to do or how to fix so they will be able to do it themselves competently.

2.    Legals- hopefully most are behind us now but there are two legal matters that are bubbling away that I 100% believe I should still be involved with[.] This is not because I am cleverer than anyone else. It is simply because I have lived and breathed these matters and put so many hours into them that I know them intimately. I answered a four square question for SBA in 10 minutes that would have taken you hours – again – not because I am clever but because I am so familiar with the material that I know exactly where to find what they are looking for

a.    Walsh st -there is a jurisdiction hearing - mid June. If VCAT find for us then we will move to final wash up and there is a solid chance of more money but there will be a far amount of work - not from our end as this has been done but Walsh st will obviously put in [their] own figures for the wash up which need to be compared to what I have presented and refuted

b.    UA- retention and final wash up - same as above - our figures have all been done but UA will present a completely different set of figures and I am best placed to defend our position because I have done so much preparation work.

I’m sure there are other bits and pieces.

Kind Regards

Jeff Robinson

General Manager

BMF

129    This was almost a week after Mr Wright had signed documents surrendering his shares in Brandmet, and had extricated himself from the joint venture. The only reply Mr Robinson received from Mr Wright was the following:

Thanks for the emails. I told you I am having today and the weekend off mate.

I will chat to you re this on Monday.

Don't forget the emails are off today- server being moved.

Cheers

Ian Wright

Managing Director

BMF

130    Notwithstanding that dismissive communication, Mr Wright did communicate with Mr Robinson on Saturday 23 May 2020.

131    At 11.14am he wrote:

Jr

Thanks for the email. I can[’]t afford to pay for you to work on BMF and MQ – I will sort BMF out and get on with MQ – I am going to hire someone I trust to get the tasks done and have a system in place to do so.

I will talk to Harry re your situation.

I don’t expect you to do any work that you are not getting paid for.

Will chat to you mid-week without fail.

We need to get the BMF equipment returned, so if you could do this it would be appreciated.

Thanks a heap. I am sure Harry will get his act together soon. We have 2 projects that are proceeding to chat to him about.

One via UP group and [1] by clement lee.

Cheers

Ian Wright

Managing Director

BMF

(Emphasis added.)

132    In my opinion, in this email Mr Wright was clearly intending to wash his hands of Mr Robinson.

133    Mr Robinson replied:

Thanks for the email.

So we are clear.

-    I understand that I am longer to do work for BMF. Period.

-    are you saying discontinue any work on M&Q? Please advise.

Also you have said that you don’t expect me to do any work that I am not paid for but that is exactly what has happened. I have not been paid my last month[’]s salary and to be clear. It was 100 % BMF/ M&Q work which you have told me to do.

Harry at the meeting we had, said he was not ready to proceed immediately with the venture and you acknowledged that I had plenty to go on with so you asked me to continue doing mainly M&Q work which I have done. I think we would both agree that I need to [be] paid now and I should [not] have to wait for you and Harry to sort out details. That is between you and him.

Please do the right thing by me and pay me what is owed now.

Regs

Jeff

Sent from my iPhone

134    Mr Wright responded:

Will speak Harry am Monday – we have already paid him for early May works – will sort out monies for the works you have done for us.

Thanks mate

Ian Wright

Managing Director

BMF

135    This occurred after the change of company details for Brandmet was lodged with the Australian Securities and Investments Commission, which occurred on 21 May 2020.

136    Mr Wright maintains that the entity paying Mr Robinson did not change over the course of his employment: it had always been Brandmet. He also deposes that, after ceasing to be a director of Brandmet, he was “not a party to any decisions concerning [Mr Robinson’s] employment”. Together with the findings at [120] and [121] above, which indicate some positive conduct to disassociate himself from any future matters concerning Mr Robinson, I accept that evidence. Mr Wright took no steps to prevent Mr Robinson doing work that was useful to Mr Wright and BMF, and other entities in what he calls “the Wright Group”. He was content, I find, to take advantage of Mr Robinson’s situation in that way. This is consistent with the attitude I have found drove Mr Wright. However, there is also no evidence to suggest that Mr Wright was involved at all in any decisions about Mr Robinson’s employment with Brandmet; those decisions were made by Mr Fung, as the contemporaneous evidence extracted above demonstrates.

137    In his email extracted at [131] above, Mr Wright had suggested Mr Robinson to return the equipment that BMF had purchased for him. On 3 June 2020, Mr Robinson’s access to his work emails and IT system was removed.

138    Mr Robinson deposed in his affidavit evidence (at [52]):

I continued to work for BMF up until on or about 3 June 2020 when my email and server access was removed. Around this time, I commenced looking through ASIC company searches on Brandmet. I discovered that Mr Wright had transferred his shares in Brandmet to Mr Fung in two instalments of 50% on 22 April and 1 May 2020. [….] At no stage during any of my communications with Mr Wright, discussed in paragraphs 37-51 above, did he mention that he was no longer a shareholder of the Joint Venture.

139    Mr Robinson was not challenged on this evidence in cross-examination and I accept it.

140    By this time, Mr Robinson had retained Mr Bartlett as his solicitor. By a letter dated 5 June 2020, Mr Bartlett wrote to Mr Wright about the salary and other monies Mr Robinson claimed were owed to him, and the stand down direction he had received. The letter also set out Mr Robinson’s contended position that his true employer was BMF. There was no correspondence sent to Mr Fung. The letter foreshadowed an application to the Fair Work Commission.

Mr Robinson’s application to the Fair Work Commission

141    Having received no response to the 5 June letter, on 19 June 2020, Mr Robinson commenced a proceeding in the Fair Work Commission against Mr Wright and BMF in relation to the stand down notice he had received and the money he claimed was owed to him. He commenced a second proceeding in the Fair Work Commission against Mr Fung and Brandmet on 24 July 2020, apparently after discussions in the Commission. In these proceedings, Mr Robinson sought, among other things, a declaration that his true employer was BMF and not Brandmet, and orders requiring BMF to provide him with work under the contract and to make payments for wages he claimed to be owed. The Fair Work Commission dealt with these proceedings in five conferences between the parties which were on 23 June, 3 July, 25 August, 8 October and 24 November 2020. The first four conferences were by telephone. Mr Wright claims that he was represented at the first four telephone conferences by his lawyer, which Mr Robinson appears to accept, at least in relation to the 25 August and 8 October conferences.

142    The chronology regarding the Fair Work Commission proceedings is unclear, and is no doubt complicated by the without-prejudice nature of some of the communications. Nevertheless, it is apparent that, at some point prior to 11 August 2020, Brandmet agreed to pay Mr Robinson at least part of the money he claimed was owed for the work he had performed up to 18 May 2020. Mr Wright deposed to this at [65] of his affidavit. It remains unclear whether Mr Robinson now says there are any monies by way of salary and entitlements owed for the period up to 18 May 2020 (that is, when the “stand down notice” was issued by Mr Fung). On the basis of the affidavit evidence, it seems that Mr Robinson was paid for work up to 30 April 2020 on 15 April 2020, and then he was paid for work from 1 to 18 May 2020. However, the Brandmet payroll history in evidence shows his wages usually being paid at the end of the month, not in the middle of it. Mr Robinson’s written contract of employment does not specify whether his wages are paid in arrears or in advance. This level of detail was not addressed in Mr Robinson’s submissions, perhaps because the Court had split liability off from the question of relief. Therefore, this is not a criticism so much as an observation.

143    I note that Mr Wright deposed, and Mr Robinson accepted, that the payments made as a result of the Fair Work Commission proceedings were made by Brandmet.

144    Mr Fung purported to revoke the stand down notice by an email sent on 11 August 2020, apparently before the conclusion of the Fair Work Commission proceedings. That email stated:

Dear Jeff,

I am writing to advise that Brandmet has a requirement for you to be reinstated back to perform work duties as at 18th August 2020.

Please be available to return to work as of next Tuesday 18th August 2020. As we are in a time of government social and travel restrictions, the majority of the work will be performed on an off site basis, however there maybe a requirement for you to conduct site visits.

If there are any issues with your return to work, please advise, otherwise we expect that you will available to return to work as of 18th August 2020.

Thank you.

Regards,

Harry Fung

145    That there was some connection between what had occurred in the Fair Work Commission and the request to re-attend work was made clear in an email from Mr Fung on 26 August 2020:

Dear Jeff,

As per the Deputy Principals [sic] instructions in today’s conference, I hereby confirm that you were requested to be back at work as at 18 August 2020, as per the details in the below email trial.

Your return to work order is as per your employment contract as General Manager of Brandmet Pty Ltd.

(Emphasis added.)

146    In the email exchanges that followed, however, Mr Robinson asked Mr Fung to clarify whether he was being directed to return to the position he was employed in by his contract, and whether Brandmet would pay his wage for the period from 18 May to 18 August 2020. Mr Fung confirmed that Mr Robinson would no longer be receiving instructions from Mr Wright and would be required to perform tasks at his (and Brandmet’s) direction. Mr Robinson’s responses made it clear that he considered these to be beyond the scope of the duties set out in his employment agreement.

147    On the basis of Mr Fung’s communications, Mr Robinson formed the view that he was not being directed to return to the position he was employed in by his contract, and he did not agree to, and did not, return to work. His position was set out in an email to Mr Fung on 18 August 2020 (one of several exchanges around this time):

Harry,

I am not resistant to coming back to work. I was enticed 3 years ago to work for BMF as a BMF’s General Manager for a fixed term of 5 years. I am more than prepared to do this.

My contract is clear and also performance over the last 3 years undeniably support the fact that my work is with BMF. Brandmet is and always has been nothing more than a bank account with an ABN. What is being purported to be done now cannot erase over 3 years where this entity was used as a payment vehicle and nothing more. It has never conducted work, period.

The idea that a contract that is so clear can be “transferred” without any recognition of the terms and clauses within the contract is factually wrong and wrong at law.

•    I have been given a stand down notice by Brandmet which is invalid;

•    I have been stood-down from work with BMF which is also unlawful;

•    I am owed 3 months back pay by BMF which has still not been addressed and you, Brandmet as agent for BMF Construction, have continually ignored my request for this to be paid.

•    The misrepresentations, duplicity and poor behavior by both Ian Wright and yourself has been staggering

So to reiterate I am employed to conduct the work of BMF under the direction and reporting to Ian Wright. If you have temporary work for me to do which is supported by Ian Wright as a Director of a related entity I of course will do it. Please be specific if this is what you are really asking me to do.

I will do such work that is within my skills and capability which is safe to do. Please note I have not done quotations or feasibilities before and wouldn’t know where to start but I am prepared to give it a go subject to what I say above.

A simple solution would be the movement of my contract of employment to your new entity. As my contract states the employer “conducts the business, BMF Construction” appoints me as General Manager reporting only to Ian Wright then this would require written release from the existing contract by Ian and myself on terms which are acceptable and a new contract negotiated with yourself, or a variation agreed with all parties.

Please also note that my lawyer has written to your lawyer with a “without prejudice” proposal to resolve the “stand-down” dispute.

Regs

Jeff

148    The parties returned to the Fair Work Commission for a conference on 25 August 2020. Afterwards, Mr Fung emailed Mr Robinson again to direct him to return to work as the General Manager of Brandmet. Mr Robinson again declined to return to work. In cross-examination, he gave evidence that by this time he was engaged as a consultant by a footwear company. Mr Robinson conceded that he had not obtained Mr Wright’s or Mr Fung’s consent to perform this work. However, he maintained that his consulting work would not have adversely affected the performance of the duties in his employment agreement, since he was able to “disengage [him]self immediately” from the consultancy if given the opportunity to return to his former role. The proceedings before the Fair Work Commission remained on foot throughout August and September 2020.

149    On 9 October 2020, Mr Fung sent Mr Robinson what was described as a ‘Final warning letter’ directing him to return to work by 13 October 2020. If he did not return, Brandmet would terminate his employment on the basis of abandonment or repudiation of the employment agreement. In response, Mr Robinson provided medical certificates stating that he was unfit for work from 12 October to 18 November 2020. In cross-examination, Mr Robinson conceded that he continued to perform his other consulting work during this period, but explained that his medical certificates were granted on the basis of his psychologist’s opinion that he should avoiding interacting with Mr Fung, because the conflict was causing him great distress. He maintained that his other consulting work did not prevent him from performing his duties under his employment agreement, if his former role were made available to him. I accept Mr Robinson’s evidence that this was the approach he took, and that from his perspective he considered this a rational approach.

150    The fifth and final Fair Work Commission conference was conducted on 24 November 2020, in person, with Mr Wright in attendance. There was some evidence given by Mr Robinson about what occurred at this conference. It should not have been given because the conference was conducted on a confidential and without prejudice basis, but again that is more of an observation than a criticism. Suffice to say the parties did not settle their outstanding disputes, and Mr Robinson never returned to work for Mr Fung and Brandmet.

151    On 25 November 2020, Mr Robinson sent a letter to Mr Wright advising him that he considered Mr Wright to have repudiated the employment agreement, and that he accepted this repudiation. The letter was in content also a letter of demand. The proceeding in this Court was commenced shortly afterwards.

152    Thus, it was Mr Robinson himself who brought the employment relationship to an end.

The liquidation of BMF Pty Ltd and the liquidation of Brandmet

153    BMF was placed in liquidation on 2 February 2021. Mr Robinson was not listed as a creditor on the report that Mr Wright was required to provide to the liquidator; rather, Mr Robinson’s claim against BMF was considered to be contingent on the determination of the proceeding he had commenced. In any event, the liquidator formed the view that, after the costs and expenses of the liquidation were accounted for, there would be no return to BMF’s creditors. The resolution of Mr Robinson’s application for leave to continue this proceeding against BMF despite the liquidation is set out at [6], above.

154    In his affidavit, Mr Robinson deposed that Mr Wright had told him on two occasions that, if BMF were to incur a large liability in a construction dispute, he would “tip BMF over”. Mr Robinson noted in his affidavit that judgment had been awarded against BMF in 133 Walsh Street Pty Ltd v BMF Pty Ltd [2020] VSC 650 in the sum of $436,736.58. The case as reported suggests the figure might be different, but that difference is not material. Mr Wright was not cross-examined about any relationship between what he is alleged to have said to Mr Robinson and this judgment.

155    By resolution dated 19 January 2022, Brandmet was put into voluntary liquidation. The report to the liquidator indicates that Brandmet has no substantial assets (other than a current account with the Bank of Melbourne worth approximately $11,000), and a tax liability of approximately $1 million. Mr Wright was not cross-examined about the liquidation of Brandmet.

Resolution

156    In making the findings I have made to this point, and the findings I make below, I have given careful consideration to my observations of each of Mr Robinson and Mr Wright when they gave evidence, and of course to the content of examination, cross-examination and re-examination, and have compared that with the documentary evidence.

157    My impression of Mr Robinson is that he is clearly very personally invested in this case, and this led to him being somewhat inflexible in some of his answers – he was keen to contradict or qualify what the questioner was putting to him if he perceived any slight inaccuracy. I consider he felt he knew the narrative, and the documentation, better than anyone else. That might be so in one sense, and his conviction is understandable, but of course he approached all the evidence, including his own narrative, from his own perspective. Generally, he had a more complete recollection than Mr Wright, which is hardly surprising, given their different circumstances. On some occasions however, I find he tended to reconstruct conversation or events rather than give evidence from his active recollection.

158    Mr Wright was careful in his evidence, and made some reasonable concessions about Brandmet and what it did and what it did not do. He also made reasonable concessions about the joint venture. However, his evidence remained at a relatively general level and at times I had the impression he was reconstructing rather than giving evidence from any active recall that he had. His pursuit of his self-interest was, as I have found elsewhere in these reasons, the main driver for much of his conduct. My impression during his evidence was that there may well have been more to the narrative than he was disclosing, but I did not find his evidence dishonest or dissembling.

159    In general, I consider each witness displayed some tendencies to reconstruct and generalise. Where possible, I prefer to rely upon the contemporaneous evidence as revealed in the large number of emails between them, and with Mr King and Mr Fung. I consider these contemporaneous emails give a more reliable insight into the position each man was taking, and why. They occurred at a time before the proceeding. By and large, there are few if any factual issues which need to be resolved by a comparison of the credibility of each witness. The contemporaneous documents resolve most of the factual issues, in my opinion.

Who was Mr Robinson’s employer?

160    Mr Wright’s submissions should be accepted on this issue. Brandmet was Mr Robinson’s employer, from start to finish.

161    The parties both submitted the Court should take the same approach as that set out in Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163; 80 ACSR 56. The main issue in Gothard was whether the respondents were priority creditors in respect of employment entitlements owed by the company in receivership. At [52]-[64], Edmonds J discussed previous authorities’ approach to identifying an employer, where there was more than one possibility about who was the employer. At [54], Edmonds J referred with approval to the summary set out by Finn J in In the matter of C&T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd (In Liquidation) (Controller Appointed) [2004] FCA 1148. In what Finn J described as “far from a satisfactory proceeding”, a liquidator had applied for a determination under s 511 of the Corporations Act as to the employer of three groups of employees.

162    In terms of applicable principles, Finn J said at [20]:

The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:

(1)    A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (Administrators appointed); McCluskey v Karagiosis (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee’s consent must be a real one whether express or implied and is “not to be raised by operation of law”: Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443.

(2)    The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

(3)    Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider “the reality of purported contractual arrangements”: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties[’] relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.

(4)    Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

(5)    In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:

“… it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.”

See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.

(Original emphasis.)

163    Relevantly, as Finn J emphasised in the way his Honour applied these principles to the evidence before him, the Court must look at the “reality of the purported contractual arrangements”. That is phrase used in other cases, such as Pitcher v Langford (1991) 23 NSWLR 142 at 161. That is because, as all these cases explain, the “reality” of the arrangements may need to be considered with an argument that the arrangements as they appear are a “sham”. However, Handley JA went on to say in Pitcher:

But independently of the sham principle the courts can consider what the parties to a contract have done, in order to see whether it has been ignored or abandoned.

164    Finn J also refers to the decision of Ryan J in Textile Footwear & Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465, a decision which, with respect, I have found insightful and helpful. Indeed, it is Bellechic which might be said to have the most similar circumstances to the present ones.

165    In my opinion the following factors support the conclusion that Brandmet was Mr Robinson’s employer:

(a)    The written contract of employment, which contained all the terms and conditions of Mr Robinson’s employment, expressly identified Brandmet as the employer. Brandmet was named after express and considered communications about which entity should be identified as the employer.

(b)    Mr Robinson sought to rely on other terms of this contract. In other words, he did not contend the contract as a whole was a sham, or wholly ineffective because he was misled, or because any fraud had been committed on him. Rather he sought to enforce several terms of the contract. The other terms had been just as carefully considered and negotiated as the term about the identity of the employer (for example, the absence of a probationary period and the fixed-term nature of the contract).

(c)    There was an equality of bargaining power in the entry into this contract. Mr Robinson was an experienced businessman. That is why Mr Wright wished to have him working in his group of companies. Mr Wright was an experienced businessman. Mr Robinson had secure ongoing employment, and was making a conscious choice to leave that employment, for what I find on the evidence he considered to be an attractive opportunity. He negotiated particular terms which were attractive for him, and insisted upon them. He went into this contract with eyes wide open. Perhaps his misstep was to place too much trust in Mr Wright.

(d)    The parties, especially Mr Robinson, took legal advice. Mr Robinson was aware of the potential for the corporation employing him to be wound up or placed in liquidation. His correspondence with Mr Milicevic discussed this, and Mr Milicevic expressly warned him of these risks. At no time did Mr Robinson suggest, or instruct his lawyer to suggest, that he should be employed by a different corporation.

(e)    Mr Robinson did not communicate or correspond with Mr Wright at the time of the contract in any way which suggested he thought, or intended, that BMF would be his employer, in the sense that he would only be performing work for that corporation. Rather, he well understood he would be performing work for a group of corporate entities controlled by Mr Wright. One was BMF, but there were others. There was Slinky Bob Pty Ltd and W Merchant Pty Ltd, and the businesses operated by those corporations which were not even in the construction industry. As I have described above, it was some of these other corporations, and their respective businesses, that Mr Robinson performed services for right up until the effective end of his working period. BMF Construction was a business, but not a corporate entity.

(f)    Mr Robinson was issued with PAYG statements by Brandmet. His payslips recorded Brandmet as the employer. While the authorities make it clear such matters are not decisive, they also make it clear such matters are relevant.

(g)    More significantly, Brandmet was nominated as Mr Robinson’s employer on his own tax returns for 2018, 2019 and 2020. While Mr Robinson’s unchallenged evidence was that these forms were generated by BMF, he signed them. I infer he signed them knowing it was important they were correct and accurate. That is, to an external, government third party (the Australian Tax Office), Mr Robinson represented that Brandmet was his employer. Mr Robinson strikes me as an honest man. If declaration that the respondents were not priority creditors in respect of employment entitlements owed by the company in receivership the time, he thought his employment by Brandmet was a sham or a façade, I do not consider he would have agreed to the nomination of that corporation on his tax returns.

(h)    Even once the joint venture arose, Mr Robinson did not ask or seek to be moved out of Brandmet and to have a new contract with BMF (or any other entity remaining in the sole control of Mr Wright).

(i)    While Mr Robinson mostly continued to interact with Mr Wright in seeking a solution he found satisfactory, he accepted in cross-examination he did so knowing (at least after 23 May 2020) Mr Wright was no longer a director and shareholder of Brandmet. In other words, he sought assistance from Mr Wright in negotiating with the corporation he continued to treat as his employer, and Mr Fung as director of that corporation.

(j)    Mr Robinson accepted he performed work for a number of entities associated with Mr Wright. Even after the joint venture commenced, he agreed in cross-examination that the workings of the joint venture made it clear his time was to be billed out to services that he provided to the various businesses, including Mr Fung’s businesses. He did not suggest these changes affected the identity of his employer, or that he became employed by Mr Fung personally or one of his companies, simply because it was envisaged he may provide services to that company.

166    My finding in (c) above is confirmed by evidence given by Mr Robinson in cross-examination. He was asked about his concerns, as the emails reflect, that Brandmet might not have sufficient assets to cover his entitlements as an employee:

Pausing at that point, you had toyed with the possibility of asking for a personal guarantee?---No.

Well, it appears that you had at least discussed it with Mr [Milicevic]?---No, Mr [Milicevic] discussed it with me.

Well, he has raised it. He has told you, “Maybe it would be a good idea to get a personal guarantee”?---

I understand the suggested personal guarantee could be seen as a lacking of trust.

It was brought up. It was dismissed straight away.

Well, it was brought up by him. So it was suggested to you by your lawyer - - -?---Correct.

- - - and you said no?---No. Correct.

But you knew that a personal guarantee might be some way of making sure that you were not exposed to risk with the financial arrangements that were being entered into; agree with that?---In – in retrospect, or if I had asked for a bank guarantee.

Yes. But you knew that that was something you could have done and decided against it?---Yes.

And at 1258 on the next page there’s an email from you, where you say:

To be honest, I wouldn’t hire me under those conditions.

And just pausing at that point, by those conditions, do you mean under conditions of asking for a personal guarantee or the like?---Yes, correct.

167    Mr Robinson had options to seek better security and elected not to take them. He gave rational reasons for doing so. But it was clear from this evidence he knew, and intended, that Brandmet was to be his employer.

168    It is true that in some of the contemporaneous documents, Mr Wright’s own language focusses on the work Mr Robinson was doing for his business of BMF Construction. It is also true that Mr Robinson’s business card, and contact details (including his email address) all referred to BMF Construction. However, that, the parties agreed, was a business name at best. There may have been any number of marketing or commercial reasons for that description on emails and business cards. In my opinion, what that reflects is the structural reality under which Mr Robinson was employed – namely that he was employed to provide services to a number of different entities, operating in different industries, at that time all controlled by Mr Wright, and he and Mr Wright, at that time envisaged the business activities of BMF Construction would occupy most of his time.

169    It is also true that the evidence supports the proposition that Mr Wright was the person with whom Mr Robinson initially desired to work. Mr Wright had a central role in the businesses he controlled. However, he was not running these businesses alone. On the evidence, there were also people such as Mr King and Ms Roberts, who were until shortly before the joint venture also on the payroll of Brandmet.

170    One of the findings of Ryan J should be extracted, because of its relevance to the present issues. His Honour said:

In the present case, none of the employees recruited after March 1995 stipulated for a particular entity to be her employer. There was no apparent reason to do so since all of the companies in the Joosse group had minimal paid up capital and none was apparently financially stronger than the others. In those circumstances, in which the employees were engaged to work in a business in which a number of separate corporate entities participated otherwise than as partners, it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham. The evidence compels the conclusion that Mr Joosse selected Bellechic Pty Ltd to be the employer of the relevant employees recruited after March 1995.

(Emphasis added.)

171    In my opinion, this is what Mr Wright did in March 2017, as the person controlling what he described as “the Wright Group”, including Brandmet and BMF, and the business of BMF Construction. He did so quite transparently and expressly with Mr Robinson, who sought his own legal advice and ultimately agreed to Brandmet being nominated as his employer in the written contract. Mr Wright could have selected BMF, but he chose not to, and he offered Mr Robinson employment on the basis of a specific choice he had made. Ultimately, Mr Robinson accepted that offer. As it turned out, both companies ended up in liquidation.

172    Mr Robinson sought to rely on the decision of Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; 198 FCR 174. Ramsey was a case about who was the true employer, in circumstances where a labour hire company (Tempus) was interposed between the workers and the operating company. Buchanan J’s conclusion is set out at [2]-[3] of his Honour’s reasons:

I have had no difficulty in concluding that the arrangements made for the inter-positioning of Tempus between Ramsey Food Processing and the employees who performed work in the operations of Ramsey Food Processing were legally irrelevant to the identification of their true employer. In the relevant period, the employer was, in my view, Ramsey Food Processing. Furthermore, although the conclusion just stated rests upon an independent footing, the purported inter-positioning of Tempus was a sham, intended to disguise the true position.

The creation of those arrangements (so far as they involved Tempus) was conceived as part of arrangements made to avoid payment of penalties ordered by this Court, in other proceedings, to be paid by companies associated with Mr Ramsey and under his direct control. The arrangements were also intended, I am satisfied, for the purpose of avoiding direct legal responsibility by Ramsey Food Processing for the wages and entitlements of employees at the abattoir. A purpose of that kind does not mean, necessarily, that arrangements are ineffective, much less illegal. The arrangements appear to have been put in place on the basis of legal advice and certainly with legal assistance. However, in my view, on the facts of the present case, for the reasons I will explain, the arrangements made by the respondents were wholly ineffective to deflect responsibility from Ramsey Food Processing with respect to payments due to the complainant employees. Mr Ramsey was not only an active participant in those events, but was a key decision-maker. Responsibility for them, and their consequences, is to be attributed to him equally with Ramsey Food Process.

173    A number of observations should be made about those conclusions, to distinguish the circumstances in Ramsey from the present circumstances. The purpose of the arrangement with Tempus was plainly a material issue in the proceeding, and the “sham” allegations were front and centre in the parties’ evidence and contentions. The purpose was for Mr Ramsey to avoid liabilities imposed on his companies through an earlier decision of this Court: see Ramsey at [11]. That is not the case here. Although as I explain below, Mr Bartlett eventually did make submissions based on the concept of a “sham”, he never really articulated what the “sham” was. It certainly was not of the kind undertaken in Ramsey. No allegation was squarely put to Mr Wright about what kind of sham behaviour he had engaged in, in expressly nominating Brandmet as the employer for Mr Robinson.

174    Second, in Ramsey the controlling minds, and officers, of the corporations were different. The scheme conceived by Mr Ramsey, the controlling mind of the Ramsey companies, was to create a shelf company (Tempus) of which another person, Mr Considine, would be the director, although Mr Considine and Tempus were to be wholly indemnified by Mr Ramsey and his group of companies for their role as “employer” of the abattoir workers. Here, Mr Wright controlled both Brandmet and BMF (and the other Wright group companies) at the time of the contract with Mr Robinson. In other words, and to use Buchanan J’s language at [9] of Ramsey, Mr Wright as the “effective decision maker” at the time of the contract, in respect of all the businesses in the Wright group. Far from assisting Mr Robinson’s arguments, in my opinion, this tends against them. Mr Wright was, in those circumstances, able to choose which corporate vehicle should employ Mr Robinson. That is what he did, openly and transparently with Mr Robinson who, after having sought legal advice, accepted the proposal put to him by Mr Wright about which corporation was to be his employer.

175    I accept that the financial arrangements described by Buchanan J at [10] appear similar to those the evidence reveals about Brandmet – namely, that its income depended on payments and transfers from other Wright entities, at least until the time of the joint venture. However, that was but one factor considered by Buchanan J. In principle, it was not submitted in this proceeding, nor could it be, that arrangements of that sort within groups of companies were unlawful or inevitably evidence of a “sham”. That is the point later made by Buchanan J in Ramsey at [75]-[78], concluding at [78]:

Nevertheless, it must be possible to identify a rational explanation for the arrangement and the explanation must be satisfactorily related to an intelligible business objective. That is so because otherwise, doctrines of agency, at least, may operate to defeat a bare claim of independence and isolated liability, supported only by a bare reference to separate incorporation. That is particularly likely to be the case when: the separate employing company is completely reliant upon a company to which it purportedly supplies labour; it has no assets and no management structure of its own; and it exists only as a corporate shell to protect another company, which does have assets, from liability to employees. In such a case a court might not hesitate long before pronouncing the arrangement ineffective or, in a more serious case, a sham.

176    For the period from when Mr Robinson commenced working under the arrangement with Mr Wright until the commencement of the joint venture with Mr Fung and his businesses, Mr Robinson has not proven that it is more likely than not that Brandmet was no more than a “corporate shell” protecting another company (and if so, which company). While I accept the evidence suggests Brandmet relied on funds being transferred from other entities to pay its liabilities, including its liabilities to employees, the evidence also demonstrates that it did operate as a company providing corporate and administrative services to companies controlled by Mr Wright, and for a considerable period of time, including when the contract was made, had a number of individuals on its payroll. It had an intelligible business as an administration and services company. A similar point was made by White J in Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391; 99 SASR 461 at [91]:

It is not uncommon within a corporate group for the employees to be engaged by an entity which is not involved in the ownership of assets or in the group’s trading operations. This may be done for perceived taxation advantages or to distance the group’s assets from claims by workers in respect of unpaid entitlements. When properly implemented, it cannot be said that such an arrangement is a sham in the sense described above. On the contrary, such arrangements are often quite transparent, and the apparent effect is precisely the actual legal effect sought to be achieved by those arrangements.

177    In my opinion, those observations apply to the evidence about the way Brandmet operated within the group of Mr Wright’s companies, until the joint venture. After that, the ownership of Brandmet changed, its purpose changed, but not in a way which affected the reality of Mr Robinson’s employment by that company, a reality that on the evidence he accepted at least at the start of the joint venture.

178    The making of the joint venture with Mr Fung fundamentally changed the use to which Brandmet was to be put, but not in a way which establishes the use of the corporation to that point had been a pretence, or that its proposed use in the joint venture was for purposes other than those disclosed by the contemporaneous evidence between Mr Fung and Mr Wright. Indeed, I accept the following submission made on behalf of Mr Wright in closing submissions (with footnotes omitted, although I accept the evidence referred to supports the submission):

Mr Wright ceased to be a director of Brandmet on 1 May 2020. It is however clear that Mr Robinson’s employment continued after that date. He was paid by Brandmet after 1 May 2020. He was providing services to other entities after that date. He was directed by and corresponded with the director of Brandmet, Mr Harry Fung, about return to work arrangements. He was issued with a written warning by Brandmet on 9 October 2020, some seven weeks before he contends the employment relationship was brought to an end on 25 November 2020. He submitted medical certificates to Mr Fung for the period 12 October to 2 November 2020. Consistent with the written employment contract, Brandmet remained the employer through until the end of the relationship.

179    Ultimately, the authorities referred to, and this case, turn on their particular facts and the evidence adduced. What the Court might find is the ‘reality’ of the arrangements in one case, or in another, will depend on these factual matters.

180    I raised with the parties whether they submitted any change in the Court’s approach was required because of the decisions of the High Court in WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 96 ALJR 89, and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144. Rossato concerned the principles for the identification of a worker as a casual worker for the purposes of s 86 of the FWA, although the Court also considered what identified a casual employee at general law. Personnel Contracting and Jamsek concerned the principles applicable to determine if a worker is an employee or an independent contractor.

181    In Rossato at [62], the plurality said:

To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.

(Footnotes omitted.)

182    While these emphatic observations were made in a different context, they unmistakably require courts to focus on the contractual relationship between the parties as reflected in a written employment contract, where it is clear (as here) that it is the written contract which constitutes the bargain between the parties: cf the observations by the plurality in Personnel Contracting at [42]-[43]. That is so even where the court perceives some unfairness: see Rossato at [63].

183    In Personnel Contracting at [43], the plurality said:

In cases such as the present, where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.

(Footnotes omitted.)

184    As I have explained, in terms of the identity of the employer, there is no estoppel operating in Mr Robinson’s favour in the present circumstances. There was no “sham”, for reasons I explain below. Mr Robinson not only accepted the contract was valid, he sought to rely upon it and enforce it in these proceedings. The observations I have just set out are directly applicable. As are the observations at [45]-[46] of Personnel Contracting. There is no allegation of a variation to the written contract to change the identity of the employer. Mr Robinson’s case is that it was always BMF. That case must be rejected.

185    There is one further passage in the plurality’s reasons in Personnel Contracting that should be extracted. It is at [61]:

The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider “the totality of the relationship between the parties” by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.

(Emphasis added, footnotes omitted.)

186    The passage in bold strikes me as descriptive of much of the approach taken on behalf of Mr Robinson. There was a desire to demonstrate how his job, and his relationship with Mr Wright, had played out in practice, especially once it soured somewhat. From that, there was a reconstruction of what was intended by an otherwise perfectly clear contractual document, reflecting a carefully negotiated bargain between the parties.

187    Unsurprisingly perhaps, counsel for Mr Wright embraced what was said by the majority of the High Court in those cases about the centrality of what is said in written terms, where a contract is reduced to writing. Mr Bartlett submitted the cases were distinguishable because they were dealing with the method for ascertaining whether a person was an employee or an independent contractor, and here there was no debate that Mr Robinson was an employee.

188    In Bellechic, Ryan J did seek to distinguish cases dealing with the employee/independent contractor distinction, because his Honour considered that:

the choice has to be made primarily by reference to the nature of the business in which the employee was required to work and what was said and done at the time of his or her engagement.

189    That statement can be accepted, but what in my opinion does need to be considered from the recent High Court cases is the overwhelming emphasis by a majority of the Court on the express terms of the written contract, where there is a written contract. As a single judge, in light of the emphasis in these three recent decisions, it is difficult to see any principled distinction which would make those statements, at least as obiter, inapplicable to the present circumstances: BCR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1043 at [21]. See also Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 at [25] as to the position for an intermediate appellate Court. The position should therefore be all the firmer for a single judge.

190    What their Honours are emphasising, in my respectful opinion, is the primacy a Court must give to the precise way in which the parties have chosen to express their bargain, having elected to reduce it to writing. I consider I should apply the approach set out in these recent decisions, including by according at least considerable primacy to how the parties, both relatively equal in terms of bargaining power and being legally advised, chose to express their bargain with each other.

191    The approach in these three recent High Court cases has been applied in this Court: see JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 at [17]-[27], and Murphy v Chapple [2022] FCAFC 165 at [28]-[30].

192    On behalf of Mr Robinson, Mr Bartlett submitted that the circumstances in Re Spitfire Corporation Ltd (in liq) [2022] NSWSC 340 were analogous to the present case. He submitted that case stands for the proposition that courts can still look beyond the terms of the contract to determine who is a person’s employer in certain circumstances, notwithstanding Personnel Contracting, Jamsek and Rossato. In my opinion, Spitfire is distinguishable because it concerned the identification of the ‘true’ employer among a group of related corporate entities for the purpose of proving and determining the priority of creditors’ claims in the winding of up of a corporation under Pt 5.6 Div 6 of the Corporations Act. In Spitfire at [74]-[79], Black J considered a line of authorities permitting courts to look beyond the written terms of an employment contract to identify a ‘true employer’ for the purposes of Pt 5.6 Div 6 of the Corporations Act. His Honour found that the specific terms, functions and policy of Pt 5.6 Div 6 of the Corporations Act, particularly s 561 of that Act, mean that Personnel Contracting, Jamsek and Rossato should not be taken to have overruled impliedly that line of authority. As pleaded, Mr Robinson’s application does not invoke Pt 5.6 Div 6 of the Corporations Act. Moreover, the propositions expressed by the High Court are emphatic and (other than as I have explained above) relatively unqualified, and now present in three sequential decisions of that Court. Unless and until they are further qualified or explained it is, with respect, appropriate for a single judge to follow and apply them.

193    Finally, this is not a case of an impermissible or ineffective assignment of a contract of employment; cf Bellechic. There was no assignment by Brandmet of Mr Robinson’s employment contract to another corporation or person. The identity of Mr Robinson’s employer remained the same. There was a change of ownership in Brandmet. That is quite a different matter. This is one of the instances where Mr Bartlett’s submissions about “piercing the corporate veil” and his encouragement to the Court to look at the individuals behind the corporations, and to the change in individual shareholding and the directorship of Brandmet, must be rejected.

The “sham” argument

194    In Ramsey at [111], Buchanan J set out a description of a “sham” which his Honour considered applicable, taking into account some cautions and limitations which his Honour set out at [112]-[113].

In a passage which has often been quoted, Lockhart J after reference to a number of authorities, said in Sharrment Pty Ltd v Offıcial Trustee in Bankruptcy (1988) 18 FCR 449 at 454:

A “sham” is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.

195    In Rossato at [55], the plurality also used the language of “sham transactions”, going on to explain what their Honours understood by that, in the circumstances of Rossato, as being “a disguise”. This language also employs concepts of some kind of deception.

196    In Personnel Contracting at [54], and also [59], the plurality explained why an allegation of an agreement as a sham may permit examination by a Court of conduct subsequent to a written contract. This again emphasises that underlying the concept of a sham is deception and disguise.

197    Eventually, as the arguments developed orally, Mr Bartlett did press some submissions that the use of Brandmet as an employer for Mr Robinson was a sham. In closing oral submissions, after referring to Ramsey, he contended:

It is and holding out that Brandmet operated the – which is conceded – operated the business known as BMF Construction is false; it was a sham. It was a guise to avoid liability. And we say the law needs to put an end, a line, through these sort of arrangements.

198    And as to how it was contended Mr Wright knew the arrangements were a sham, including the joint venture:

So, your Honour, the consequences of the adverse action should not be underestimated, and Mr Wright was involved in all of it, in fact, had control of all of it, could have stopped the – even the stand down at any point in time, could have – it was all within his control. He controlled everything. Now, your Honour, if - - -

HER HONOUR: How do you put that?

MR BARTLETT: Sorry?

HER HONOUR: How do you put the proposition that Mr Wright could have prevented the stand down?

MR BARTLETT: He was the employer. He could, at any point, he could have said, “Forget about that. You’re working with me. Come back to the office. Don’t worry about how – it doesn’t matter. It’s a – that’s a complete sham. That’s of no effect, that notice, because you work for me, and I haven’t authorised Harry to do that.”

199    And then as to what was deceptive about the contract:

The – a couple of final points I would make, your Honour, is that the applicant shouldn’t be penalised for being very diligent in preparing a comprehensive employment contract that the respondent, as managing director, signed and I believe the parties initialled on each page but the point is it was clearly signed and binding on the managing director.

That he was told and represented that Brandmet was the entity that operated BMF Construction. It’s in the recital. It’s in recital A and recital B. That was a sham. That was a guise, we say, to escape liability and it was misleading and deceptive conduct.

200    Mr Wright was not cross-examined to that effect, and that is sufficient for the Court not to entertain the late raised (and unpleaded) argument because of the potential prejudice and unfairness to Mr Wright.

201    Counsel for Mr Wright submitted:

The arrangements here are quite different from those found to be a sham in the Ramsey Food Processing case by Buchanan J because that was all about inserting a labour hire intermediary as an artifice as a construction, which portrayed the employment relationship to be something quite different. That was found by his Honour quite clearly to have been a sham. But having a separate company providing administrative support in the way that my client did here through Brandmet, in my submission, is entirely unremarkable. It is a commercially common arrangement to enter into and particularly because, I think, the evidence also is that every time a new project was embarked upon within the group of companies operated by Mr Wright, so any time there was a new building constructed, a new property development underway, a new company would be formed that would conduct that development but the services would still be provided through Brandmet.

Brandmet was the service entity provided services across the group rather than the entity providing, say, construction services where if a tradesman was employed, that person might be employed by BMF but with someone in Mr Robinson’s capacity, he was employed with Brandmet, which was the administrative support vehicle.

HER HONOUR: But it really stopped having that function at some point, didn’t it, Mr Millar? Because, otherwise, it makes no sense for it to have been sold to Mr Fung, who had nothing to do with Mr Wright’s companies. It stopped having a function of being an administrative service company for Mr Wright’s businesses.

MR MILLAR: Well, it acquired a degree of independence when Mr Wright sold his stake in that it became an external service provider rather than a purely internal one.

202    Counsel then continued at some length through the evidence to explain that the proposal for Brandmet was, on the contemporaneous documentation:

that Brandmet is going to be providing project management services to businesses. It’s going to be a commercially active company providing services to perhaps the commercial world more generally rather than just to entities within Mr Wright’s orbit.

203    That description conforms in my opinion to the evidence I have set out earlier in these reasons. I accept that submission.

204    The evidence does not support a finding that either the insertion of Brandmet as the employer of Mr Robinson was a sham on the part of Mr Wright, or that the creation and entry into the joint venture was a sham on the part of Mr Wright and Mr Fung.

205    As to the contract, I have set out above all the evidence which supports the finding that each party (Mr Wright as the controlling mind of Brandmet) carefully considered both the identity of the contracting parties and the terms and conditions of the contract. There was negotiation, and eventually a bargain was reached, with Mr Robinson being legally advised at all relevant times. Mr Wright was quite transparent about which of the corporate vehicles he controlled should be Mr Robinson’s employer. He was quite transparent that Mr Robinson would provide services to all of his businesses, which he conducted through a number of different corporate entities. There was no deception, no disguise. Mr Robinson considered insisting on extra safeguards, such as a personal guarantee, but decided not to. He now wishes to enforce aspects of that contract. The transaction was not a sham on the part of Mr Wright.

206    As to the joint venture, I have set out above all the evidence which supports the finding that the joint venture was seen as a business opportunity by both Mr Wright and Mr Fung. Each saw they, and their respective business interests, had something to gain by it. They were introduced through Mr King. Each negotiated the terms of the joint venture from the position of what suited their respective interests. Brandmet was consciously selected as the vehicle for the joint venture, and Mr Robinson was envisaged as having a central role in how the joint venture would operate and what services it would provide. It is true that Mr Wright was not interested in how this change might affect Mr Robinson. It is true he did not consult him. By this point he was treating Mr Robinson as an employee who could be directed about what work to perform. His treatment of Mr Robinson was somewhat callous. It was, as I have found, borne out of a singular sense of self-interest. None of those characterisations indicate deception or disguise in the joint venture transaction itself, or in the use of Brandmet. They indicate pursuit of self-interest. That is not unlawful. As soon as Mr Wright sensed Mr Fung would not put up his financial contribution, Mr Wright sought to get out. Mr Fung apparently cooperated in that occurring, albeit the two men had to negotiate terms to some extent. It seems the COVID-19 pandemic played a role, but what else was operating on the men’s decision making is not revealed by the evidence. Neither appeared concerned for the situation of Mr Robinson. Again, that does not render their conduct deceptive or turn the joint venture into a sham.

207    Mr Fung, as the controlling mind of Brandmet at the relevant time, did not dismiss Mr Robinson. He sought for him to return to work for Brandmet. Mr Robinson refused to do so. That sequence of events is not consistent with Brandmet being nothing but a sham after it was transferred to Mr Fung.

208    If there is a circumstance in which a written contract of employment, representing the whole of the parties’ bargain, should not be construed as reflecting the true reality between the parties because it is, or aspects of the bargain are, a sham and so should not be recognised by a court, then the evidence in this case is not such a circumstance.

“Piercing the corporate veil”

209    A number of times during opening and closing submissions, orally and in writing, Mr Bartlett contended that what needed to happen in this proceeding was for the Court to “pierce the corporate structures”. I understood him to be referring to other phrases such as “pierce the corporate veil”. Mr Bartlett submitted in closing written submissions on behalf of Mr Robinson:

It would be a miscarriage of justice, manifestly unfair, inequitable if the Second Respondent is allowed, by the law, to hide behind corporate veils and escape out the “back door”, given his level of involvement and obvious intentions to avoid liability.

210    Piercing or lifting the corporate veil is a familiar phrase, but as Allsop CJ has demonstrated in his Honour’s recent paper, it is generally an inapt expression.

211    In “Piercing the corporate veil: recent international developments” (paper given to the 38th Annual Conference of the Banking & Financial Services Law Association on 26 August 2022), Allsop CJ explains (at [3]) what is encompassed in the expression “piercing [or lifting] the corporate veil”:

The metaphor in piercing or lifting the corporate veil assists in appreciating what might be occurring within the legal doctrine. The “corporate veil” assists us to visualise the status of corporations as being legally distinct and separate from their directors, shareholders and employees. A veil has transparency, we can see that corporations are indeed run by people, but a veil is also a physical barrier and imports the notion of protection. The “corporate veil” has been cast over corporations by reason of public policy, that public policy being the prioritisation of the economic and social advantages of corporations enjoying separate personality and limited liability. To “pierce” the veil suggests destruction or renting of the veil: thus of the policy. To “lift” the veil suggests removal to disclose reality. We will see shortly how the UK Supreme Court in the first of the cases which I wish to discuss, Prest v Petrodel Resources, deployed the differently expressed metaphors in clarifying the doctrine.

(Footnotes omitted.)

212    After what is with respect a comprehensive consideration of comparative authorities arising in respect of a variety of different common and statutory claims, Allsop CJ concludes (at [66]-[67]):

I have sought to show how the metaphor of “piercing the corporate veil” has been circumscribed to its proper place. In company law, the “corporate veil” is a metaphor for public policy grounded in statute. We recognise that separate personality and limited liability promote efficiency in the economy and entrepreneurial behaviour and hence that it is in the public interest for corporations to enjoy these characteristics. The law on “piercing” that veil is a testament to the fact that these public policy benefits cannot be pursued at any cost. There are limited circumstances, albeit perhaps ill-defined, when separate corporate personality and limited liability cannot be maintained. Courts are more likely to reach this conclusion and pierce the veil where the corporate form is being abused for an improper purpose, such as to perpetrate fraud and avoid extant legal duties.

However, we may dispel the “mists of metaphor” when considering corporate liability resulting from the application of the law of agency and the law of tort. The veil remains undisturbed when a company is found liable as a result of agency or the imposition of a duty of care in tort because in such circumstances a company is being found directly responsible for the consequences of its own actions, or of a real relationship of agency between parent and subsidiary not one said to arise from the existence of control and identity of interest in two separate corporate forms.

213    Although he did not develop this submission to any great level of detail, Mr Bartlett invoked of the concept in support of Mr Robinson’s application in a way that falls within what Allsop CJ describes at [66], referring to Mr Wright’s conduct as involving dishonesty and deception. Again he did not confront him with these allegations directly.

214    These submissions were in my opinion another way of expressing the sham argument I have dealt with above, and rejected. If there are circumstances in which a court might set to one side the usual principles of corporate responsibility and liability, this is not one of them.

Conclusion on the identity of the employer issue

215    Therefore, Mr Robinson’s causes of actions must be assessed on the basis of my finding that at all material times, Brandmet was his employer. Since Brandmet is not a party to the proceeding, any claims for breach of Mr Robinson’s employment contract at general law cannot succeed, and need not further be considered.

The FWA claims

216    In section E of the statement of claim filed in this proceeding, a number of claims are made by Mr Robinson based on various provisions of the FWA.

217    Key amongst them are Mr Robinson’s adverse action allegations. These occupy paragraphs [53]-[64] of the statement of claim.

218    The second set of claims, dealt with at [65]-[71] of the statement of claim, concern the non-payment of annual leave entitlements to Mr Robinson, which are alleged to be payable for annual leave accrued but not taken to the time of the cessation of his employment. This is alleged to amount to $26,312.18.

219    The third set of allegations concerns an alleged failure to pay Mr Robinson on a monthly basis, contrary (it is alleged) to s 323(1) of the FWA. These allegations are dealt with at [72]-[74] of the statement of claim, and are premised on Mr Robinson being entitled to all of his salary and entitlements until the end of the fixed five year period, but not being paid after May 2020.

220    The fourth set of allegations concerns the alleged required notice period prior to the alleged termination of employment, or payment in lieu of notice, and an alleged contravention of s 117 of the FWA, leading also to a contravention of s 44(1) of the FWA. This is dealt within paragraphs [75]-[79] of the FWA.

221    Each of these allegations is, as the statutory provisions require, an allegation made against an employer. In the statement of claim, they are pleaded against BMF. From [80] to [83], Mr Wright is alleged to be liable pursuant to s 550 of the FWA as an accessory.

222    I have found that BMF was not Mr Robinson’s employer. Therefore, all these allegations against BMF fail at the outset.

223    It is appropriate to note some of the further difficulties which stand in the way of Mr Robinson proving the FWA allegations, aside from the finding that Brandmet was at all material times his employer.

Adverse action allegations

224    As part of his final submissions on behalf of Mr Robinson, Mr Bartlett handed up an “adverse action table”, which identified ten alleged instances of adverse action. Broadly, the adverse action alleged by Mr Robinson is all alleged to have occurred after the joint venture commenced, and falls into the following categories:

(a)    Mr Wright failing or refusing to “engage” with Mr Robinson about his employment after the joint venture and failing or refusing to provide ongoing work for Mr Robinson on BMF projects;

(b)    the removal (alleged to be by BMF but under the direction or with the consent of Mr Wright) of Mr Robinson’s BMF Construction email address and website profile, and his access to BMF computer systems;

(c)    the failure of Mr Wright (personally) to attend, or engage in the Fair Work Commission processes as Mr Robinson alleges he should have; and

(d)    the non-payment of remuneration and entitlements from around 23 May 2020, including on the basis of what Mr Robinson contends was an unlawful stand-down notice issued by Brandmet and Mr Fung.

225    The additional difficulties with these causes of action are sufficient for the Court to make a positive finding that Mr Robinson has not proven his allegations made against Mr Wright under s 550 of the FWA. That is so even if it might be accepted (at least for the purpose of this analysis) that a person can be liable under s 550 for conduct engaged in by an employer where the employer is not a party to the proceeding, and where that person was neither a director nor a shareholder of the employer.

226    The first difficulty is the causal link required by s 340(1). The adverse action must occur “because of” a workplace right enjoyed by an individual, or exercised or proposed to be exercised by an individual. Much has been written in the authorities about what kind of link is required, and what an applicant must prove, as well as the role of s 361 in this aspect of the legislative scheme. All of these matters were barely addressed in submissions on behalf of Mr Robinson, except at a factual level, which meant the submissions failed to grapple with the legal requirements for these causes of action to be made out.

227    I explained my understanding of the link required by s 340 in Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [55]-[61]. I adopt the same approach here. See also Rumble v The Partnership (T/as HWL Ebsworth Lawyers) [2020] FCAFC 37; 275 FCR 423 at [34]-[39].

228    The workplace rights identified by Mr Robinson rely on the definition in s 341(1)(c) of the FWA, and are all alleged to be complaints or inquiries “in relation to” his employment. In my opinion there is nothing in the evidence that established it was more likely than not that the conduct identified by Mr Robinson as adverse action was because of any complaint or inquiry in relation to his employment. Rather, on the evidence before the Court (recalling it is incomplete because of Brandmet not being a party, and Mr Fung not being a witness), the conduct occurred, assuming favourably to Mr Robinson’s case that it did occur, because of the decision by Mr Wright and Mr Fung to enter into a joint venture using Brandmet as the corporate vehicle for that joint venture, and then the collapse of the joint venture.

229    There is no evidence at all to even suggest that any of this conduct occurred because Mr Robinson made complaints or inquiries about his ongoing position with Brandmet. It is of course understandable and unsurprising that he made such complaints and inquiries in the circumstances, but there is no basis in the evidence to conclude that those complaints and inquiries became activating reasons for the stand down notice, for his removal from the public-facing manifestations of BMF Construction and for the non-payment of remuneration after 18 May 2020. As I have noted, the evidence on these matters is far from complete because, to secure more complete evidence, an entirely different trial would have needed to be run. One that joined Brandmet from the outset, and gave Brandmet an opportunity to lead evidence. One that called Mr Fung as a witness, and probably joined him as a party, and gave him an opportunity to lead evidence.

230    A second difficulty is, as counsel for Mr Wright submitted, that much of the conduct alleged to be adverse action was not on its face capable of falling within the definition of adverse action in s 342 of the FWA. Mr Robinson’s submissions appeared to accept that Item 1 of the table in s 342 was the applicable aspect of the provision. That of course concerns action taken by an employer against an employee, and runs straight into the Brandmet difficulty. Putting that to one side:

(a)    There is no allegation of dismissal in this proceeding. I accept the closing written submissions on behalf of Mr Wright on this point at [47]; and

(b)    failures to attend a Fair Work Commission conference, or rejecting settlement offers at a Fair Work Commission conference, do not fall within Item 1 – they are insufficiently connected to the performance of work by an employee, or the terms and conditions of an employee’s work. The same is true about the debate over who was Mr Robinson’s employer.

231    In principle, it can be accepted that the (wrongful) issuing of a stand down notice, and the failure to pay remuneration and other entitlements as an employer is obliged to, are clearly within Item 1 of s 342(1). However they are far from the majority of the conduct alleged to be adverse action. In turn, they suffer from the identification of the wrong employer, and the failure to establish any causal link as required to the existence or exercise of a workplace right. Any findings about them would also involve a denial of procedural fairness to Brandmet and to Mr Fung, who, through the forensic decisions made by Mr Robinson, were not joined to this proceeding at the appropriate time. Those forensic decisions skewed the evidence and issues in the trial in a way which could not be cured by the late application made by Mr Robinson to change course.

232    A further matter which should be addressed is the submission on behalf of Mr Robinson at [55] of his written submissions in chief that:

The “adverse action” identified again has been established and correctly conceded by the Second Respondent.

233    The footnotes give references to the evidence where Mr Wright did not dispute at least some of the factual conduct alleged to constitute the adverse action. That is a far cry from any concession that the conduct alleged constituted adverse action, as Mr Wright’s own defence and submissions make very clear.

Accrued annual leave entitlements

234    These allegations fail because they are not made against Mr Robinson’s employer. There has been no contradictor to Mr Robinson’s allegations about the leave he has accrued. There has been no exploration of whether Mr Robinson himself should be found to have brought the contract of employment to an end. As Mr Wright submits, other aspects of cl 23 of the employment contract might then come into play.

The s 323 allegations

235    These allegations fail because they are not made against Mr Robinson’s employer. There has been no contradictor to Mr Robinson’s allegations about the operation of s 323. Mr Robinson relies on Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 and Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878. Mr Wright’s submissions point out there are other, conflicting authorities, and point to Coote v Mainline Access Pty Ltd & Anor (No 3) [2019] FCCA 383; 344 FLR 1 at [39]-[57].

236    It can be accepted, as Mr Robinson submits, that the decisions in both Murrihy and APESMA accept that s 323 extends to entitlements arising under contracts of employment. Ordinarily, those being decisions of single judges of this Court, a single judge would follow those decisions unless persuaded they were incorrect. However, the premise of s 323 is described by Buchanan J in APESMA at [30]:

The ordinary language of s 323 is apt to identify, and provide for the enforcement of, an obligation to pay amounts which have become payable, as well as the more specific obligation to pay such amounts in full, in money and at least monthly (subject to the statutory exemptions which accompany the obligation). It does so by permitting the imposition of a civil penalty for contravention of the obligation.

(Emphasis added.)

237    In other words, the premise or precondition for the operation of s 323 is that there is a contractual entitlement which has not been paid. For the reasons given above, there is no proper contradictor in this proceeding about that proposition, and neither Brandmet nor Mr Fung have been heard on Mr Robinson’s allegations. The Court cannot decide them, nor grant any relief in respect of them. Especially so since s 323 is a civil remedy provision and, if made out, the penalties would be imposed on Brandmet. They cannot be imposed because first, it is not a party; second, it has not been heard; and third, it is in liquidation.

The s 117 allegations

238    Again, these allegations face the insuperable difficulty of Mr Robinson having nominated BMF as the employer. Putting that to one side, so far as the evidence goes (and I repeat the findings I have made about it being incomplete and there being no proper contradictor), I otherwise accept the written submissions put on behalf of Mr Wright (at [54]), which in my opinion properly reflect the limited evidence before the Court. The footnotes are omitted, but I accept the evidence referred to supports the submissions made.

The evidence before the Court on the circumstances in which employment came to an end is largely undeveloped – essentially because Brandmet is not a party to the proceeding. However on the material before the Court it is apparent that it was Mr Robinson who brought employment to an end, particularly given that Brandmet had sought to have Mr Robinson return to work in order to fulfil the contract. Mr Robinson had started his own business under the name of ‘Solutions Strategies’ in July 2020, and has been performing consultancy work for other businesses since that time. He was submitting medical certificates notwithstanding that he was clearly well enough to be performing work for other businesses.

It is submitted that it was quite apparent that Mr Robinson had no intention of returning to work for Brandmet. He had been sent a letter by Mr Fung, seeking his return to work, or prospectively face termination for abandonment. He made a conscious decision to bring employment to an end by sending a letter dated 25 November 2020. It was Mr Robinson who failed to provide the requisite period of notice, and he has no basis for making a claim under this section.

239    The s 117 allegations must be rejected.

The s 550 allegations against Mr Wright

240    As the submissions made on behalf of Mr Wright contend, all the FWA allegations also involve conduct alleged to have occurred after 1 May 2020, at which point Mr Wright had ceased to be a director and shareholder of Brandmet. As Mr Wright’s submissions correctly recognise, that does not in principle prevent a conclusion of involvement under s 550. Section 550 is in terms directed at “a person” and its language should not be construed unduly narrowly.

241    Nevertheless, the contraventions alleged (if any) must, on the Court’s finding, be contraventions by Brandmet of a civil remedy provision of the FWA. Relevantly, that means contraventions of ss 44(1), 323 or 340(1).

242    Once again, these allegations must fail because Brandmet is not a party, and has not been heard on the allegations that should have been made against it from the outset. Brandmet was not in liquidation when this proceeding commenced.

243    The allegations must also fail because there is no evidence Mr Wright “intentionally participated in the contravening conduct, with actual knowledge of the essential facts which constituted the contravention”: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59], citing Yorke v Lucas [1985] HCA 65; 158 CLR 661 at 667. The notion of participation is essential, as Flick J pointed out in Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 at [116]. Flick J’s approach was endorsed by the Full Court in EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261 at [13]. More recently, see Tamu v World Vision Australia [2021] FCA 333 and McCardle v Johnson (No 2) [2022] FCA 168. The applicable principles are also summarised by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]-[179], endorsed by the Full Court in EZY. Inherent in all these descriptions is the requirement that for a person to be liable under s 550, they must have actively engaged in conduct that demonstrates a sufficient link to the contravening conduct, and sufficient knowledge of it: see also EZY at [15].

244    As I have noted, all of the alleged contravening conduct which might be capable of constituting adverse action (eg the stand down notice, and the failure to pay remuneration and entitlements) occurred well after Mr Wright had ceased his involvement with Brandmet. The person who, at least on the incomplete evidence before the Court, appears to have taken all these steps was Mr Fung.

245    I do not consider it is putting it too highly to say that the evidence as a whole discloses that in his pursuit of his self-interest, Mr Wright washed his hands of Brandmet, and of Mr Robinson. He might be criticised for that, but none of the alleged causes of action are made out even if that is the correct characterisation of his attitude, which I consider it is.

246    Mr Robinson has not proven his case against Mr Wright under s 550 of the FWA.

The ACL claims

247    In chief, Mr Robinson’s written closing submissions made no contentions about his ACL claim. Nor did his written reply submissions. In oral submissions, Mr Bartlett addressed the ACL claims, but only as to factual issues.

248    The ACL claim is pleaded, as I have noted, against BMF and against Mr Wright directly. Insofar as it is made against BMF, first it is misconceived as it is based on the premise that BMF was Mr Robinson’s employer, contrary to the findings the Court has made. Insofar as anything remains of such a claim directly against BMF (and it is not suggested there necessarily is anything left, but allowing for the possibility), it is stayed by reason of s 500(2) of the Corporations Act.

249    Therefore the ACL claim need only be considered insofar as it is pleaded against Mr Wright directly.

250    The representations alleged to have been made by Mr Wright are in form and substance the same as those alleged to have been made by BMF. That is because Mr Wright is identified as the representor.

251    As pleaded the alleged representations comprise representations by Mr Wright to Mr Robinson that:

(a)    If Mr Robinson commenced employment with BMF,

(b)    then his employment would be for a fixed period of 5 years; and

(c)    If the employment lasted for less than 5 years, Mr Robinson would be paid an amount equal to 5 years at a rate of $300,000 plus superannuation per year.

252    The representations are alleged to have been made by Mr Wright during his dinner conversation with Mr Robinson at the Bellota Wine Bar on or around 23 February 2017, and in an email chain between Mr Robinson, Mr Wright and Amanda Robertson from 7 March 2017.

253    By [44] of the statement of claim, the representations are alleged to be in relation to future matters, and therefore to engage the terms of s 4 of the ACL. That is the only way the representations are pleaded. I dealt with the meaning and operation of s 4 in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 at [219]-[223].

254    I adopt that approach in my reasoning here.

255    For the purposes of determining these allegations, I am prepared to assume in favour of Mr Robinson that the representations are actionable under either s 18 of the ACL because they were made in trade and commerce, or under s 31 of the ACL because they related to matters of employment. The submissions of Mr Wright did not submit otherwise.

256    Therefore, the key issues are:

(a)    Were the representations as alleged in fact made?

(b)    Were they representations as to future matters for the purposes of s 4 of the ACL?

(c)    If they were representations as to future matters, did Mr Wright have reasonable grounds for making the representations, noting the effect of s 4(2) of the ACL?

257    Mr Robinson has not proven Mr Wright made any representations about what would happen if Mr Robinson commenced employment with BMF. As I have found, Mr Wright expressly nominated Brandmet as Mr Robinson’s employer. The evidence does not establish that at any stage Mr Wright represented to Mr Robinson he would be employed by BMF. The premise of the ACL pleading has not been made out.