Federal Court of Australia

Mbuzi v World Vision Australia [2025] FCA 866

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1    The appellant commenced proceedings in the Federal Circuit and Family Court (FCFCOA) seeking compensation for alleged breaches of the terms of a modern award in contravention of s 45 of the Fair Work Act 2009 (Cth) (the FWA).

2    In Mbuzi v World Vision Australia [2024] FedCFamC2G 651, the primary judge made the following orders:

1.    The Application by the Respondent for leave to be granted to be legally represented is refused.

2.    The Application filed on 8 April 2024 and the application in a proceeding filed on 2 July 2024 are dismissed.

3    The appellant appeals against the second of these orders. The “Application filed on 8 April 2024” was the application commencing the substantive proceeding. The “application in a proceeding filed on 2 July 2024” was an application for review of a Registrar’s decision to vacate existing orders and refer the matter to the primary judge.

4    It is necessary to outline the procedural history of the matter before the FCFCOA.

5    On 8 April 2024, the appellant filed an application pursuant to s 548(1) of the FWA in the small claims jurisdiction of the FCFCOA seeking an order that the respondent pay him the sum of $98,597.

6    The matter was initially case managed by a Registrar. It is common ground that the Registrar had delegated power under s 254(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) to give directions about the programming of the matter to a final hearing.

7    On 15 May 2024, the Registrar made orders requiring the exchange of affidavits and written submissions by the parties and listed the matter for a trial on 6 August 2024.

8    On 21 June 2024, a firm of solicitors filed a Notice of Address for Service. The form indicated that, “I hereby give notice that I have been appointed as the lawyer for the above-named party”. On the same date, the lawyers filed an interlocutory application seeking the following orders:

1.    An order that the Respondent to Proceeding BRG167/2024 be granted leave to be represented by a lawyer.

2.    An order that Proceeding BRG167/2024 be referred to a Judge of the Federal Circuit and Family Court of Australia.

3.    An order that Proceeding BRG167/2024 be stayed until the Federal Court of Australia has determined the Respondents’ application for orders under section 37AO of the Federal Court of Australia Act 1976 (Cth), as sought in proceedings QUD523/2023, QUD24/2024, and/or QUD135/2024.

4.    In the alternative to (3) above:

a.    an order that, pursuant to section 239 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), Proceeding BRG167/2024 is dismissed;

b.    in the alternative to (4(a)) above, an order that, pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, Proceeding BRG167/2024 is dismissed;

c.    an order that, pursuant to section 239 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), Josiyas Mbuzi is prohibited from instituting any proceedings in any Registry of the Federal Circuit and Family Court of Australia against World Vision Australia, or any current or former employee or officer of World Vision Australia, without the leave of the Court; and

d.    an order that Josiyas Mbuzi is to pay the Respondent’s costs of and incidental to the proceeding.

5.    Such other orders as the Court deems fit.

9    On 28 June 2024, the Registrar vacated her orders of 15 May 2024 without notice to the parties and referred the matter to the primary judge. One of the appellant’s complaints is that the respondent effectively obtained the second order without the appellant having had an opportunity to argue against that course. The Registrar’s orders for the filing of affidavits had been complied with by the time the orders were vacated.

10    On 2 July 2024, the appellant filed an application for review of the Registrar’s order of 28 June 2024. The appellant’s application for review and the interlocutory application filed on behalf of the respondent were listed for hearing on 11 July 2024 before the primary judge.

11    At the hearing, the appellant opposed leave for the respondent to be represented by lawyers. Section 548(5) of the FWA provides that, “A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the Court”.

12    One of the submissions made by the appellant was that by filing an application for leave to be represented on behalf of the respondent, the lawyers were, in contravention of s 548(5) of the FWA, representing the respondent without having obtained leave. The appellant argued that there was “no proper application” before the Court and that the Registrar’s order vacating her programming orders were based on the false premise that the lawyers were entitled to file the interlocutory application.

13    The primary judge indicated that whether the application had been filed by the respondent or lawyers acting for the respondent made no difference. However, his Honour refused to allow the respondent to have legal representation because the case was not one which warranted such representation. His Honour did not expressly consider the other orders sought in the interlocutory application.

14    The primary judge then raised with the parties the question of whether the final hearing should proceed that day, even though it had not been listed, given that the parties had filed all of their affidavits. His Honour asked the appellant, “Are you ready for a final hearing on your application regarding your employment with World Vision as far as the classification of your position and the tea breaks”. The appellant responded, “I was ready on 15 May, your Honour”. The primary judge said, “I’m asking you whether you’re ready”, and the appellant responded, “I am, your Honour”. The hearing of the substantive application then proceeded.

15    The appellant alleged that the respondent had contravened s 45 of the FWA by contravening the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) in two ways. First, he alleged he had been underpaid because he was paid at the “Social and Community Services Employee Level 1” rate when he should have been paid at the “Level 5” rate. Second, he alleged that he had not been given the opportunity to take the tea breaks to which he was entitled to under the Award.

16    The respondent relied upon the affidavit of Nathan Callaghan, the respondent’s Chief of People and Culture. Mr Callaghan deposed that the appellant was employed in the position of a fundraising sales promoter and that the respondent classified all new employees in that role at “Level 1”. Mr Callaghan’s evidence was that the appellant’s responsibilities and duties did not fall within those required for a “Level 2” classification, let alone a “Level 5” classification.

17    Mr Callaghan also deposed that he had reviewed the respondent’s business records and believed that the appellant had not previously been employed by the respondent. However, the primary judge accepted that a letter from an employee of the respondent, Jenny Nguyen, indicated the appellant had in fact been previously employed by the respondent. This evidence was relevant to the Level 1 classification description that, “They may include the initial recruit who may have limited relevant experience”. His Honour found that the appellant was still a “new employee” because he was coming into the organisation for the second time and, “he was still, for all intents and purposes, a new employee”.

18    The primary judge observed that the employment agreement signed by the appellant expressly stated that the appellant would be paid at the Level 1 classification. His Honour did not accept the appellant’s evidence that he signed the employment agreement without having read it properly. His Honour found that the appellant was employed in an entry level position. His Honour noted that the appellant had not produced any evidence to show he was actually performing duties at a higher level and that Mr Callaghan’s evidence on that point had not been challenged. His Honour accordingly rejected the appellant’s claim for underpayment of wages.

19    The appellant claimed, “I did not have a paid 10-minute tea break when I worked with WVA”. Mr Callaghan acknowledged that under the Award each employee was entitled to a paid ten-minute tea break in each four hours worked, at a time to be agreed between the employer and employee. Mr Callaghan deposed that he was informed by the team leader, Victor Etse, that the appellant had been advised there was no set time for tea breaks and he was to manage those breaks at a time that worked for him within his rostered hours, and that other team leaders had observed the appellant taking tea breaks from time to time. Mr Callaghan deposed that the first time the appellant raised any concern about tea breaks was on 19 December 2023, nearly two months after the termination of his employment.

20    The appellant relied on a text message from a person named Samuel which said, “…none of us knew we can [sic] take a tea break until two weeks ago in a meeting. Victor mentioned it”. The primary judge considered that the meeting must have been after the appellant brought proceedings against the respondent.

21    The primary judge held:

[50]     When it comes down to it, the question is whether I accept what the Applicant has said, together with the person Samuel, as against what Mr Callaghan has said, followed with what Mr Victor Itzi [sic] has said.

[51]    It is really a matter where the Court is in position where it does not know which of the versions to accept. Where it is that it is in such a position, the onus is on the Applicant to prove that he did not take the tea breaks and was not told of them. Because the Court is in a position where it cannot make a true finding as to whether the Applicant is correct or not, then the unfortunate consequence is that the allegation is not proved.

22    The primary judge accordingly rejected the appellant’s claim in respect of tea breaks that were not taken. His Honour dismissed the appellant’s substantive proceeding.

23    His Honour also dismissed the appellant’s application for review of the Registrar’s decision, although His Honour did not specifically give reasons for doing so. However, the obvious reason for that order was that the review would be inutile because the substantive proceeding had been determined.

24    The appellant’s grounds of appeal in this Court are as follows:

1.    The hearing was the fruit of a poisoned tree and therefore lawfully invalid because:

a.    The application for a referral that resulted in the hearing of the matter was fraudulently made by unauthorised representatives.

b.    The grant of the fraudulently applied for referral was made without service on the appellant.

c.    The grant of the fraudulently sought referral for the hearing was made without participation of the appellant, and therefore in breach of procedural fairness.

2.    The hearing of the referral itself was conducted without due and sufficient notice.

3.    The judge below who conducted the unlawful referral erred in relying on untested evidence for which the deponent refused to comply with notice for cross-examination.

4.    The judge below who conducted the unlawful referral erred in putting the same weight on the untested evidence and the tested evidence by himself.

5.    The judge below erred in determining that “court rules” he failed to identify allowed for a party in a fair work proceeding to be represented by lawyers without consent of the other party, and/or without leave of the court.

6.    The judge below erred in accepting and taking into account the consideration of unidentified sources of untested evidence.

7.    The judge below erred in law in putting the onus of the provision of a copy of the Modern Award on an employee, instead of the employer as mandated by law.

8.    The judge below erred in his determination that “all the material” for the matter was ready.

25    The appellant’s written submissions summarise his case as follows:

a.    That the judge below erred in refusing to accept that the referral to him for the hearing was lawfully invalid because it was a result of an application made unlawfully, fraudulently, illegitimately, and by unauthorised persons. Further, the judge erred in refusing to accept that the decision for the referral was made in breach of procedural fairness.

b.    The issues in point ‘a’ above are enough by themselves for the appeal to be allowed.

c.    If required, the appellant stands ready during the hearing of the appeal to make submissions that although the judge was made aware of the issues in point ‘a’ he openly stated that he didn’t care, as the transcript of proceedings would prove.

d.    The appellant respectfully submits that an order made in circumstances where the presiding judge openly stated not to care about the law and rules, should not be allowed to stand because it would be setting a dangerous precedent of lawlessness in courts.

e.    Other errors by the judge below included reliance on untested evidence, some of it based on unidentified sources, and also putting the same weight on that untested evidence and from unidentified sources as the evidence of the appellant which was tested by the judge’s own cross-examination and also had identified sources.

f.    The other error by the judge below included putting the onus of the provision of a copy of the Modern Award on an employee, being the appellant, instead of the employer, as mandated by law.

26    In respect of the first ground of appeal, the appellant submits that the respondent’s lawyers “fraudulently, unlawfully and dishonestly” filed an application for the proceeding to be referred to a judge and claimed to be “representing” the respondent. The alleged “fraud” seems to be that the respondent’s lawyers, through the Notice of Address for Service and the interlocutory application they filed, claimed to be representing the respondent even though they knew leave had not been obtained. The appellant’s submission appears to be that the fraud deprived the primary judge of jurisdiction to determine the interlocutory application and the substantive application.

27    Section 131 of the FCFCOA Act provides, relevantly, that the FCFCOA (Div 2) has such original jurisdiction as is vested in it by laws made by the Parliament. Section 539(2) of the FWA provides, relevantly, that an application for contravention of s 45 may be brought in the FCFCOA (Div 2). Under s 548(1) of the FWA, proceedings are to be dealt with as small claims proceedings if, relevantly, the application is made to the FCFCOA (Div 2) and the applicant elects to have the matter dealt with under the small claims procedure. Accordingly, the FCFCOA (Div 2) had jurisdiction to hear and determine the proceeding.

28    Section 254(1) of the FCFCOA Act allows the Rules of Court to delegate any of the powers of the FCFCOA (Div 2). Rule 21.01(1) and (2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) delegates certain powers to Registrars, including the power under s 545(2)(b) of the FWA to order a person to pay compensation when dealing with a small claims proceeding. The delegation does not operate to restrict the jurisdiction or the powers of the Court to deal with such a proceeding. There is no doubt that the primary judge had jurisdiction to hear and determine the substantive proceeding and the interlocutory application.

29    The appellant may well be right to submit that the lawyers purported to represent the respondent without having obtained leave to do so by filing the notice of address for service and interlocutory application. Even so, s 189(1) of the FCFCOA Act provides that proceedings are not invalidated by an irregularity unless the Court is of the opinion that substantial injustice has been caused which cannot be remedied by an order of the Court.

30    Even if the respondent’s lawyers filed the interlocutory application in circumstances where the application for leave to be represented by a lawyer ought to have instead been filed by the respondent, the primary judge was entitled to treat the defect as an irregularity that had not caused any injustice, let alone substantial injustice: cf Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd (2007) 35 WAR 412 at 735-736. Section 548(5) of the FWA does not require a lawyer to obtain leave to provide assistance (as opposed to representation) to a party. There could have been no complaint if the lawyers had merely drafted the interlocutory application for the respondent. His Honour was entitled to consider the application that was filed by the lawyers on its merits. His Honour ultimately dismissed the application. Further, the defect did not somehow deprive the primary judge of jurisdiction to determine the substantive proceeding.

31    The appellant’s allegation of fraud against the respondent or its lawyers is overstated and fanciful. The filing of the Notice of Address for Service and the interlocutory application by the lawyers may be attributed to a lack of attention to the terms of s 548(5) of the FWA. However, there is no basis for the allegation of fraud and it should not have been made.

32    The appellant also contends that the decision of the Registrar to set aside her programming orders and refer the matter to the primary judge without giving the appellant an opportunity to make submissions denied him procedural fairness. An obligation of procedural fairness only arises where a decision is adverse to a party’s interests: Kioa v West (1985) 159 CLR 550 at 619; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [66]. The appellant has not explained why the Registrar’s decision to set aside her orders and refer the matter to a judge caused any prejudice to him. Even assuming there was a denial of procedural fairness, that denial was “cured” by the primary judge having heard the appellant’s submissions on the interlocutory application and then hearing and determining (with the appellant’s consent) the substantive proceeding: cf Calvin v Carr [1980] AC 574 at 593; R v Marks; Ex Parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1981) 147 CLR 471 at 476.

33    The appellant’s second ground asserts that the substantive hearing was conducted “without due and sufficient notice”. However, it is clear from the transcript that the appellant was asked by the primary judge whether he was ready to proceed with the substantive hearing and he readily agreed to that course. There was no complaint made of insufficient notice. The second ground must be rejected.

34    The fourth, sixth and seventh grounds concern the substantive decision made by the primary judge. It must be noted that s 548(3) of the FWA provides that in small claims proceedings, the Court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities.

35    It was for the primary judge to give such weight as his Honour considered appropriate to hearsay evidence that was before the Court. It was also a matter for his Honour to give such weight as was considered appropriate to the appellant’s answers to his Honour’s questioning.

36    Further, the appellant did not have any entitlement to cross-examine the respondent’s witness. That was a matter for the discretion of the Court: O’Rourke v Miller (1985) 156 CLR 342 at 353; National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 313-314. In any event, it is far from clear on the transcript that the appellant was seeking any order for the attendance of Mr Callaghan for cross-examination, and the appellant proceeded to make submissions about why Mr Callaghan’s evidence was dishonest.

37    In his oral submissions, the appellant complained the primary judge erred in failing to find that the evidence of Mr Callaghan was dishonest. Mr Callaghan’s evidence that he had reviewed the respondent’s business records and believed the appellant had not previously been employed by the respondent was inconsistent with Ms Nguyen’s letter which indicated that the appellant had in fact been previously employed by the respondent. However, the inconsistency does not necessarily indicate dishonesty and the more natural inference was that Mr Callaghan had simply failed to locate records of the appellant’s previous employment.

38    The appellant has not established the fourth, sixth and seventh grounds of appeal.

39    The fifth ground asserts that the primary judge erred in determining that “court rules” (which were not identified) allowed for a party in a FWA proceeding to be represented by lawyers without consent of the other party or leave of the court. However, his Honour did not make any such determination. His Honour did not permit lawyers to represent the respondent during the hearing of the interlocutory application and ultimately rejected the respondent’s application for leave to be represented by lawyers.

40    The seventh ground asserts that the primary judge erred in law in putting the onus of proof on the employee, instead of the employer. However, there is no general rule that the employer must carry the onus of proof in a proceeding under the FWA. The appellant had the onus of proving that the respondent contravened s 45 of the FWA: see, for example, Ord Minnett Holdings Pty Limited v Theodorou [2025] FCA 721 at [72]. There was no error in his Honour determining that the appellant was required to discharge the onus of proof.

41    The appellant did not make any submissions concerning his eighth ground.

42    For these reasons, the appeal must be dismissed.

43    The respondent accepted there should be no order as to costs.

Associate:    

Dated:    31 July 2025