Ahmed Khan T/as Golden Horn Halal Meat Butchery v Prasad

RESPONDENT Gaya Prasad FILE NUMBER: IRC 4972 of 2002 CORAM: Walton J Vice-President; Marks J; Boland J Appeal - Application for leave to appeal and appeal against decision of Chief Industrial Magistrate - Recovery of wages - Leave to appeal refused - Appeal dismissed - Appellants to pay respondent's costs of the appeal CATCHWORDS : Recovery of wages - Appeal - Application for leave to appeal and appeal against decision of Chief Industrial Magistrate - Recovery of wages - Leave to appeal refused - Appeal dismissed - Appellants to pay respondent's costs of the appeal LEGISLATION CITED : Industrial Relations Act 1996 s 188(1) s 188(2) s 188(3) s 197(1)(a) ss 365 368 372 373 Blue Mountain Disability Services Ltd v Stinson (1999) 92 IR 246 Box Valley Pty Ltd v Price (2000) 97 IR 484 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 CASES CITED : King v State Bank of New South Wales [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Metwally v University of Wollongong (1985) 60 ALR 68 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28 Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 HEARING DATES: 06/04/2003 DATE OF JUDGMENT: 06/17/2003

APPELLANTS Mr R Moore of counsel Solicitor: Mr T Atkinson Paul C Fabian & Co LEGAL REPRESENTATIVES: RESPONDENT Mr D W M Chin of counsel Solicitor: Ms J Wright Jones Staff & Co

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Walton J, Acting President Marks J Boland J Tuesday 17 June 2003

Matter No. IRC 4972 of 2002 AHMED KHAN & ORS T/AS GOLDEN HORN HALAL MEAT BUTCHERY v GAYA PRASAD Application by Ahmed Khan & ors t/as Golden Horn Halal Meat Butchery for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 8 August, 2002 in matter no 1613042/01 REASONS FOR DECISION OF THE COMMISSION [2003] NSWIRComm 183 1 This is an application for leave to appeal and, if leave be granted, appeal from a decision of Chief Industrial Magistrate G Miller ("the CIM") on 8 August 2002, a decision of Magistrate D Reiss of 12 September 2002 and orders of Magistrate Reiss made on 12 and 19 September 2002.

2 The matter before the CIM concerned an application by Mr Gaya Prasad ("the respondent") for the recovery of monies pursuant to ss 365 and 368 of the Industrial Relations Act 1996, interest pursuant to s 372 and costs pursuant to s 373 of that Act. The claim was made against Mr Ahmed Gulam Khan, Mrs Kariman Khan and Mr Ishrar Khan trading as "Golden Horn Halal Meat Butchery" ("the appellants"). Mrs Khan was the wife of Mr Ahmed Khan and Ishrar Khan was his son. The claim was for unpaid wages, overtime, annual leave, long service leave and superannuation contributions amounting to some $99,331.45 plus interest for the period from 22 February 1995 to 3 June 2000.

3 In these appeal proceedings we adopted the usual course of directing the parties to file and serve their written submissions both on the question of leave and on the merits. However, the parties were advised that we would hear them first on the question of leave at a time and date fixed for that purpose and in doing so we would also have regard to the submissions on merit.

4 On 4 June 2003 we made the following orders in this matter: (1) leave to appeal is refused; (2) the appeal is dismissed;

(3) the monies held by the National Australia Bank as security are released to the respondent;

(4) the stay order made by Walton J, Acting President on 30 October 2002 is dissolved;

(5) the appellants shall pay the respondent's costs of the appeal or as assessed in default of agreement. We now give our reasons for that decision.

5 In his decision of 8 August 2002 ("the first decision") the CIM found that Mr Prasad was an employee of the appellants for the period claimed and had been employed as a "smallgoods maker butcher's shop" under the Butchers, Retail (State) Consolidated Award. The CIM made certain findings regarding hours worked and annual leave, long service leave and superannuation owed to the respondent. The CIM adjourned the proceedings to provide the parties with an opportunity to agree on the terms of the orders to be made.

6 On 12 September 2002 the matter came before Magistrate Reiss for the making of orders. At the time, the appellants made an application to have the matter adjourned for seven days "to be able to bring some evidence before the Court to show who the correct respondents are." The application was opposed by the respondent and Magistrate Reiss determined that the Court was functus officio and declined to grant the application ("the second decision"). Final orders as to the quantum of the recoverable monies before interests and costs were then made by consent. The question of interest and costs was deferred to 19 September 2002.

7 On 19 September 2002 it would appear that Magistrate Reiss made a general order as to costs to the effect that the respondents (appellants) pay the applicant's (respondent's) costs as agreed or, failing agreement, as assessed such costs to be paid within 28 days. The question of interest was left to the Registrar although the Magistrate commented that "calculations are generally done on the gross figures" ("the third decision").

8 An appeal brought under s 197(1)(a) of the Industrial Relations Act requires leave under s 188(1) of that Act: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432; Blue Mountain Disability Services Ltd v Stinson (1999) 92 IR 246. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. Section 188(3) provides that the Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. 9 The questions raised by the appellants on appeal were as follows: 1. Whether the respondent was in fact and at law an employee of the appellants in the period 22 February 1995 to 3 June 2000 or at any time within the said period.

Whether under the Award the respondent is to be classified properly as "Smallgoods Maker, Butcher Shop" should the respondent be an employee and the Award apply to the employment.

Whether, should the respondent be an employee and the Award apply, the Respondent be classified other than as a "Smallgoods Maker, Butcher Shop" by way of appropriate classification under the Award.

Whether the Chief Industrial Magistrate erred in determining the credibility of the Respondent, the appellants and their respective witnesses in determining findings of fact in favour of the respondent.

Whether the appellants should have been allowed to lead further evidence before Magistrate Reiss or the court prior to the making of the final order on the issue as to whether the appellants were the persons against whom an order should be made for the period 22 February 1995 to 3 June 2000.

Whether the orders as made and the manner in which interest is to be calculated upon the monetary sums as ordered to the respondent pursuant to s 372 of the 1996 Act was within jurisdiction as a proper exercise of the power conferred by the Act including the proper exercise of any discretion as conferred by the Act.

10 The appellants contended that the CIM and Magistrate Reiss committed jurisdictional errors and errors of fact and law. The jurisdictional errors were said to be the failure of the Local Court to receive evidence as to the "true" employer prior to the making of final orders and the "decision" of Magistrate Reiss regarding interest. The alleged errors of fact and law went to the findings that the respondent was an employee, the period of his employment and his classification as a "smallgoods maker butcher's shop" under the Butchers, Retail (State) Consolidated Award.

11 The leading authority on the grant of leave to appeal is the judgment of the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382: See Robert Gordon King v State Bank of New South Wales [2002] NSWIRComm 353 at [52]; Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at [13]. The raising of a jurisdictional issue by an appellant does not, of itself, justify leave as each case is to be judged according to the statutory criteria. In such situations, the Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. The consideration of leave may also involve a question as to whether the decision appealed from was inconsistent with established law and principles (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381).

12 As to findings of fact or the exercise of discretion, in King v State Bank of New South Wales the Full Bench said at par [54]: As was made clear by the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 the fact that an appeal seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in the form of leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: "In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave."

13 As to the CIM's findings of fact and law in the first decision relating to the respondent's status as an employee, his period of employment by the appellants and his classification as a "smallgoods maker butcher's shop" under the Butchers, Retail (State) Consolidated Award, we consider that those findings were reasonably open and on this basis there is no justification for the grant of leave.

14 The appellants criticised the CIM for not taking a 'balanced' view of the evidence and for having a 'jaundiced' view of the credibility of the appellants' witnesses compared to that of the respondent. It is apparent from the record of proceedings and the CIM's decision that he encountered difficulty with credibility on both sides but ultimately came to the view that the evidence of the respondent was to be preferred where there was conflict. In short, the CIM believed the evidence of the applicant (respondent on appeal) and we consider this conclusion was reasonably open to him. We have considered whether there was an inconsistency between the evidence given and the CIM's findings as to credit and we have concluded in this respect there was no error that would justify the grant of leave. 15 The second decision, in which Magistrate Reiss considered the Court was functus, was in response to an application by the appellants for an adjournment in order to bring new evidence to support the proposition that the appellants were not, at all relevant times, the owners of the registered business name "Golden Horn Halal Meat Butchery" and that from about 1999 the relevant entity operating the business was a corporate entity known as Lahem Halal Meat Exporters Pty Limited. It was explained by the appellants in their oral submissions on leave that, in challenging the second decision, all they were seeking to do was to ensure that if any orders were ultimately to be made in favour of the respondent the orders should be made against the proper employer who, during the relevant period, changed from the respondents so named at first instance, to Lahem Halal Meat Exporters Pty Limited in about 1999.

16 We provided the parties with an opportunity to reach an agreement on an administrative arrangement that would provide for an appropriate apportionment between the appellants and Lahem Halal Meat Exporters Pty Limited but the parties were unable to reach such an agreement. In those circumstances it became necessary to determine whether leave should be granted to appeal the second decision.

17 As the respondent conceded, the Local Court would have had the discretion to re-open the case because CIM Miller had not finally disposed of the matter as he had not made final orders. The appellants submitted that this is where the error lay because in deciding he was functus Magistrate Reiss did not even get to the point of exercising any discretion as to whether he should re-open. 18 Even if the Magistrate had exercised a discretion, the discretion to allow a party to re-open its case after judgment has been delivered may be exercised only in exceptional circumstances. In Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 the High Court (Mason ACJ, Wilson and Brennan JJ) said at 684: [A]s we had occasion to point out recently in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28 the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.

19 In Metwally v University of Wollongong (1985) 60 ALR 68 the Full Court of the High Court said at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so.

20 In this case the appellants' evidence was that, at all material times, they were the proprietors of the Golden Horn Halal Meat Butchery. Moreover, as the respondents submitted, the appellants were on notice of the existence of the company named Lahem Halal Meat Exporters Pty Limited by virtue of a letter from the appellants' accountant annexed to an affidavit of Mr Ahmed Khan.

21 We do not accept there was any denial of natural justice by the decision of Magistrate Reiss to refuse to re-open the case.

22 As to the third decision relating to the question of interest, it appears to us that is a matter yet to be finally determined in the Court below and, therefore, no appeal lies.

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