[1999] HCA 2
Jankovic v Director of Public Prosecutions (2020) 281 A Crim R 378[2020] NSWCA 31
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390[2010] HCA 32
R v District
Judgment (11 paragraphs)
[1]
JUDGMENT
Mr Azeem successfully pursued the defendants, referred to as Mr and Ms Zafar in the Local Court where Mr Zafar swore an affidavit. They having employed him in December 2014 as a customer service manager in a business which they then conducted in partnership, known as Metro Sports, after he had obtained a 457 visa which permitted him to be employed by them.
Mr Azeem sought to recover unpaid wages, superannuation, notice payments, annual leave, redundancy pay, as well as visa related costs and fees. The defence, that he had been paid all that he was owed when his employment ceased in 2017, did not succeed entirely, Brender LCM ordering that Mr Azeem be paid a total further sum of $3,628: Azeem v Mahmood and Zafar (Local Court (NSW), 28 July 2023, unrep).
In issue in the Local Court was whether the employment had ended in 2017 or had continued until early 2019, as Mr Azeem claimed. Whether various documents and records in evidence were false, was also then in issue.
Earlier in these proceedings, Dhanji J refused a motion by which Mr Azeem had sought to lead further evidence on his appeal. His Honour concluded, given the provisions of the Local Court Act 2007 (NSW) which govern appeals to this Court, that it was not possible to see how the orders which he sought in the motion "would elucidate either an error of law or a denial of procedural fairness". To the contrary, the proposed further evidence did not appear to be relevant to the limited questions which were available to be agitated on this appeal: Azeem v Mahmood & Zafar (t/as Metro Sports Australia) (Supreme Court (NSW), Dhanji J, 9 February 2024, unrep).
That was because the Local Court Act does not give parties to proceedings in the Local Court the right to appeal to this Court on errors of fact alone: Rose v Tunstall [2018] NSWCA 241 at [29]. Section 39(1) gives a party the right to appeal to this Court on a question of law. Appeals raising mixed questions of fact and law require this Court's leave: s 40(1). Mr Azeem did not seek such leave, nor establish an evidentiary basis for its grant, on the limited evidence which he led.
This judgment thus deals with Mr Azeem's appeal from the Local Court on questions of law. He seeks to have the decision set aside, so that his claims can be reheard, complaining not only about the outcome of the decision, but also Brender LCM's refusal to allow him to call oral evidence from an immigration lawyer, Mr Gentle. He also contends that various of the conclusions his Honour arrived at were contrary to documentary evidence, which his Honour cannot have considered, and that a witness should have been dealt with for perjury.
While Mr and Ms Zafar were legally represented in the Local Court, they have not been active in these proceedings and did not appear at the hearing of the appeal.
The result was that there was no contradictor. But still Mr Azeem had to meet the onus which fell upon him to establish that Brender LCM had fallen into error of law which permitted the orders he sought to be made.
It may be accepted that Mr Azeem, appearing without legal representation as he did again in these proceedings, faced considerable challenges in meeting that onus. There were problems with the evidence on which he advanced his case and he did not address the applicable principles of law to which the Court must adhere. But that law is well settled and he having not addressed it would not result in the refusal of his appeal, if what he did advance established any error of law.
[2]
Conclusion
Nevertheless I have concluded that on the limited evidence Mr Azeem led and the submissions which he advanced, his appeal must be dismissed, he not having met the onus which fell upon him to establish the required error of law on which his appeal depends.
[3]
Mr Azeem's case
The appeal grounds advanced in Mr Azeem's summons are:
"QUESTION OF LAW (Plaintiff seeking appeal)
1. Local Court Decision point 31 states;
(I accept on the balance the defendant's evidence that the agreement came to an end in August 2017 at the effluxion of the three years sponsorship period).
Reason why seeking appeal;
This was briefly explained by the Plaintiff that the document referring 3 years period is 457 Business Sponsorship Approval, and it has got nothing to do with the Employee Sponsorship approval.
Business Sponsorship approval period means, business is approved in Immigration department to sponsor an employee (One or more) during the approval period, but to meet the requirement of training expenditures 2% of the gross payroll.
Employee Sponsorship period is linked with the period mentioned on Sponsorship Visa and only come to an end in the case of termination or visa cancellation.
Plaintiff never be terminated by the employer and there wasn't any visa cancellation until 20/03/2019 when Plaintiff gave 4 weeks' notice and accepted by Metro Sports Australia.
Local courts non understanding about immigration sponsorship and not taking into consideration plaintiff's given description and also not allowing the immigration lawyer to sit in the witness box left a question of law, and injustice to the plaintiff.
2. Local Court decision point 15 states;
(Exhibit 10 was the affidavit of Mr M Gentle, a lawyer and migration agent. He was not cross examined. His evidence concerned the plaintiff visa status from time to time.
Reason for seeking appeal;
Mr. Matthew Gentle not only a lawyer and migration agent, very importantly her was dealing all the business sponsorship and employee sponsorship process in The Department of Immigration and Border Protection on the behalf of Metro Sports Australia. He was available in the Local Court under the "Subpoena to attend to give evidence and to produce with subpoena notice and declaration" Dated 10/06/2022, 14/11/2022, 15/05/2022. As he was not cross examined, but plaintiff insisted to go for chief examination to get the clarity about Business Sponsorship 3 years period and the impact on employee sponsorship, Plaintiff was not been allowed by the Local Court, which left a question of law in this case.
3. Local Court Decision point no: 11 states that
"Exhibit 7 was the altered BAS document a copy of which was in exhibit 2 at page 116".
Reason for seeking appeal;
It's not a BAS (Business Activity Statement) by mentioning BAS it changed the actual sense of the document, reality is, it is a group certificate that belongs to the plaintiff's financial year earnings.
4. Local Court point 13 states that.
"Exhibit 9 was a text sent by the plaintiff in April 2019 referring to "Blackmailing"
Reason for seeking appeal;
Court should consider the detailed documentary evidence submitted by the plaintiff dated: 08 Jun 2022 where it was well explained how the text messaged is tempered by the defendant (Z. Mahmood) and barrister (Gina Edwards)
5. Local Court point 19.
Exhibit 4 is a witness affidavit, and exhibit 13 is a confession affidavit.
Mr. Nasrullah Asif Kahlon stated in his confession affidavit; (I met with Z. Mahmood, whereby he asked me to become a witness and advised me to go to Adam Jacobs (Defendants solicitor) office and he will prepare an Affidavit so that the case will be dismissed from the Local Court)
Mr Adam Jacobs typed that affidavit; I did signatures when I didn't have my spectacles on.
Reason for seeking appeal;
Conduct of Defendant, Solicitor & Defendant's Witness.
In this case defendant, solicitor and witness made a plan to dismiss my Local Court case by bringing a fake witness, Adam Jacobs (Solicitor) prepared an affidavit (Exhibit 4) in his own computer and also signed as a justice of Piece, where he knew that the written statement is even not read before getting the witness's signatures. Defendant's perjury planning and using an old man to sabotage the court case not been sentenced according to SECT 327 Offence of perjury - CRIMES ACT 1900.
6. Local Court Decision point 19.
In this point The Defendant's witness name is written Mr. Alon, whereas his full name is Nasrullah Asif Kahlon.
This was brought into the notice of Magistrate R. Brenden, on 28 July 2023, where he refused to do the correction.
7. Local Court point 36 Visa expenses/fees as per employer obligations has not been considered, whereas the underpayments lodged in FAIR WORK OMBUDSMAN in march 2019, where defendant didn't even reply/took part in that process, and also in ATO, since November 2020 this case is in The Local Court.
Local Court point 38 Health Insurance claim has not been considered
Whereas health insurance is a compulsory obligation of the 457 visa and mentioned in the 457 visa conditions (Must to comply)
Health Insurance is altogether different that the Visa medicals, Visa medical expenses are not covered by the health insurance and remain the part of Visa expenses/fees and comes under employer 457 sponsorship payment obligations."
The orders Mr Azeem pressed in his written submissions were:
"Defendant's false claim about employee's sponsorship period (3 Years) which ended at the end of August 2017, is not only a false claim but also misleading the court.
Mr Matthew Gentile (Immigration consultant and lawyers "Metro Sports Australia") who was under subpoena to give evidence, his evidence and description about employee's duration of sponsorship along with the employers obligations under 457 obligations needs to be considered in the court decision, and further evidence need to be recorded under special grounds as per UNIFORM CIVIL PROCEDURE RULES 2005 REG - 50.16
The whole claim is based on sponsorship and employment period, which is well documented in Immigration documents and the employer's obligation under sponsorship approval, the whole claim needs re-evaluation according to that.
A planted witness (Nasrullah Asif Kahlon) by the defendant (Zafar Mahmood) and Solicitor (Adam Jacobs) who later on did confession in the witness box also submitted his confession affidavit about the perjury planning of defendant and solicitor, needs to be dealt according to SECT 327 Offence of perjury - CRIMES ACT 1900.
Local Court approved and sealed a subpoena for Defendant 'Nuzhat Zafar'
'SUBPOENA TO PRODUCE with SUBPOENA NOTICE AND DECLARATION' Defendant: Nuzhat Zafar needed to comply and the documents in subpoena were very important for the determination of the case, but decision came on defendant's verbal claim, mentioned documents in subpoena never been provided (N Zafar) mentioned in an approved sealed subpoena.
Local Court approved a subpoena for Defendant's Accountant 'Ishfaq Siddiqui' SUBPOENA TO ATTEND TO GIVE EVIDENCE AND TO PRODUCE with SUBPOENA NOTICE AND DECLARATION.
comply for the determination of the case on true parameters.
Whereas his given statements on letter head not been accepted as witness document.
Plaintiff's claim is not been considered according to the immigration rules and regulations, and as per mentioned in Sponsorship Obligations for Standard Business, needs be consider under these rules and regulations."
By those written submissions Mr Azeem explained his "complete disagreement" with the decision, which he considers contains errors of law which would warrant orders being made under s 69 of the Supreme Court Act 1970 (NSW). But those errors were not identified.
What Mr Azeem did advance included the failure to consider the most important witness, Mr Gentle, who was present under subpoena; the failure to properly consider the false description of immigration documents, Mr Gentle's affidavit having been ignored; and that his Honour had arrived at adverse conclusions about the evidence he relied on, including documents which were found to have been falsely created in an attempt to set up Mr Zafar, and had been dishonestly created to assist Mr Azeem with his dispute and visa problems, which were unfounded.
Mr Azeem also advanced an explanation of the differences between a business sponsorship visa and an employee sponsorship approval, contending that an employee sponsorship only came to an end in the case of termination or visa cancellation. But that his employment only terminated in March 2019, when he gave 4 weeks' notice of resignation.
That, it should be observed, appears to conflict with the claim Mr Azeem pursued in the Local Court for unpaid notice and redundancy pay.
Mr Azeem did refer to Mr Zafar's affidavit, to which was annexed various documents on which the defendants relied. There Mr Zafar explained how he had discovered that the Metro Sports website had been hacked and why he believed that email addresses later used had been created by Mr Azeem. This was submitted to raise a question of law, given the documentary evidence, which his Honour had ignored, Mr Zafar having made a false statement under oath, that attracting s 327 of the Crimes Act 1900 (NSW).
Mr Gentle had acted for Metro Sports for all business processes and employee sponsorship processes concerning the Department of Immigration and Border Protection. He was not cross examined and so Mr Azeem explained that he had "insisted to go for chief examination to get the clarity about Business Sponsorship 3 years period and the impact on employee sponsorship". Brender LCM's refusal to grant Mr Azeem leave to do so was submitted to raise a question of law.
Mr Azeem also contended that his affidavit evidence and relevant 2019 documents had been ignored by Brender LCM. As had other relevant documents, including group certificates and emails which Mr Zafar and his barrister Ms Edwards had tampered with, they having committed offences under s 253 of the Crimes Act.
Mr Kahlon had given evidence. He was incorrectly referred to in the decision as Mr Alon, which Mr Azeem claimed had not been corrected by Brender LCM, despite his request. The evidence established that he had sworn a false affidavit, prepared by Mr Zafar's solicitor, Mr Jacobs, which had been relied on to advance a notice of motion seeking to have the Local Court proceedings dismissed. The conduct of Mr Zafar and Mr Jacobs had also not been dealt with in accordance with s 327 of the Crimes Act, despite having involved perjury.
The result was that the whole claim, based on Mr Azeem's sponsorship and employment period, well documented in immigration documents, needed to be re-evaluated according to an employer's 457 visa obligations, having regard to further evidence which Mr Azeem had sought to lead on the appeal from Mr Gentle under r 50.15 of the Uniform Civil Procedure Rules 2005 (NSW).
The errors which Mr Azeem pursued in his oral submissions included not only the conclusions which Brender LCM had arrived at which he disagreed with, given the evidence he had advanced, which he considered to be overwhelming and so could not have been considered by his Honour, but the errors of law he claimed were involved in:
1. the refusal of his application to call oral evidence from Mr Gentle;
2. the acceptance of the defence case, which was not supported by any documentary evidence, as his was; and
3. the fact that Mr and Ms Zafar had also relied on a "false document," being a sponsorship period approval document dated 13 August 2014, which pre-dated, and was therefore irrelevant, to Mr Azeem's employment.
[4]
The evidence
Mr Azeem advanced his appeal on the basis of various affidavits which he had sworn, contained in a court book and another folder which he had filed. But they did not exhibit the transcript of the Local Court proceedings or all that was there in evidence, as Brender LCM explained in his decision. For example, the documents on which Mr and Ms Zafar appear to have successfully relied to resist various of Mr Azeem's claims, including bank records. They were not included in the evidence Mr Azeem led.
It appears that the documents Mr Azeem did rely on may also include documents which were not in evidence in the Local Court. For example, a chronology to which he annexed various documents which plainly were not in evidence in the Local Court, given the exhibits which Brender LCM identified in his decision.
This approach did not assist Mr Azeem's case.
The result was that it is impossible to understand all the evidence on which Brender LCM reached his conclusions. Nor is it possible to discern whether the parts of the transcript from which Mr Azeem quoted in his affidavits were accurately quoted, or even that he had disclosed all of the transcript relevant to what he pursued on his appeal.
The parts of the transcript from which Mr Azeem did quote were when both he and Mr Zafar's solicitor questioned Mr Kahlon; when he tendered Mr Gentle's affidavit and was refused the opportunity to call oral evidence from him as well; and when he cross examined Mr Zafar, who at times has also been referred to as Mr Mahmood.
The latter established that at the hearing Mr Azeem did not challenge relevant parts of Mr Zafar's affidavit evidence in cross examination.
His Honour concluded that the employment had come to an end in 2017. In his affidavit Mr Zafar had deposed to a 2017 conversation in which he and Mr Azeem had discussed the termination of his employment, which then came to an end and steps which were then taken by his accountant to deregister the Metro Sports business. Mr Azeem did not cross examine Mr Zafar about this.
From his submissions it appears that Mr Azeem considered that it was not necessary to cross examine Mr Zafar about matters which were not supported by documents. He considering that no documents supported the claim that his employment had been terminated in 2017. But Mr and Ms Zafar relied not only on documents evidencing the deregistration of Metro Sports, but also bank records and other documents evidencing salary and superannuation payments ceasing in 2017, to support the claimed 2017 termination. Brender LCM referred to such documents in his decision, as well as documents on which Mr Azeem relied, although he did not accept that they established that which he then contended.
How Mr Azeem approached the cross examination of Mr Zafar was a matter for him, of course. But the result of his approach was plainly that Brender LCM was not obliged to reject Mr Zafar's evidence about the 2017 conversation on which he relied to help establish the defence, that the employment came to an end in 2017.
[5]
The Local Court decision
Brender LCM dismissed Mr Azeem's superannuation claim, considering that he had no standing to sue on behalf of the superannuation trustee.
While Mr Azeem and Mr Zafar gave evidence, Ms Zafar did not. His Honour inferred that her evidence would not have assisted the defence case: at [20].
His Honour concluded that Mr Azeem had not worked in the contested period; that he had concocted his claims in order to support his attempt to remain in the country after his employment was terminated in 2017; that any breach of the immigration laws might give rise to the prosecution of Mr and Ms Zafar, but that such breach could not give rise to a debt owed to Mr Azeem; that many of his claims related to an application he had made for permanent residency, as well as other applications, not his earlier visa; that any failure to spend sums on training him, could not give rise to a debt he was owed; and that Mr Azeem had also concocted important communications on which he relied, utilising an email account which had not previously been used by the parties: at [21].
His Honour was not satisfied that Mr Azeem's employment continued after about August 2017, having taken account of what a government audit of superannuation payments had established: at [25].
His Honour also rejected a claim for $100, which Mr Azeem claimed he had to pay an accountant for production of a payslip, there being no evidence that this payment had been required by Mr and Ms Zafar, or that a legal mechanism existed which would permit him to recover that payment from them: at [27].
His Honour also found that Mr Azeem's visa sponsorship had been for three years, while the visa he had been granted was for four: at [29]. The defence case was that the employment was terminated at the end of three years. His Honour concluded that the 2019 communications were "an entirely unreliable guide to what occurred". On balance, he accepted that the employment agreement came to an end in August 2017, at the end of the three year sponsorship period. Further, he accepted that emails apparently emanating from Mr Zafar in 2019 from a previously unused email address were falsely created by Mr Azeem, consistent with an attempt to set up Mr Zafar: at [31].
His Honour concluded there was no entitlement to the claimed redundancy payment under the Fair Work Act 2009 (Cth), it not being payable to employees of small businesses with less than 15 employees, such as that of Mr and Ms Zafar: ss 21, 121 and 123: at [32]-[33].
His Honour concluded that Mr Azeem was entitled to $1,728, two weeks' written notice of termination not having been given, when the Act required such notice after three years of employment. That was even though "it was not entirely clear if the three year threshold was just passed or not". But the defendants had not established that Mr Azeem had been employed under a fixed term contract: at [34].
His Honour found that the required records in relation to holiday pay, another statutory entitlement, had not been kept. Mr Azeem's evidence that he had not taken leave in 2017/18 and 2018/19 was accepted, but his Honour concluded that he had only been accruing leave for at most 2 months, with the result an order for payment of $600, that being two-thirds of one week's leave: at [35].
It was accepted that there were obligations to meet expenses for the original visa, but his Honour concluded that Mr Azeem's claims related to his attempts to obtain a second, different visa, in respect of which Mr and Ms Zafar had no obligations. Accordingly, this claim was rejected: at [36].
A claim for $1,300 air travel expenses was not disputed: at [37]. A claim for $11,193 for health insurance, said to be a visa requirement, was rejected, a basis for that claim not having been established on the documentary evidence. The employment contract was not in evidence: at [38].
The claim for some $10,260.97 for visa lodgement was also rejected as relating to an application after the end of the three year sponsorship, for a further visa for which Mr and Ms Zafar were not responsible: at [39].
A claim in respect of the cost of training which had not been provided, was also rejected: at [40].
[6]
The applicable principles
On an appeal from the Local Court under s 39 of the Local Court Act, it is for the appellant to establish that an error of law has been made: Rose v Tunstall at [20]. Even if that is established, the Court does not then have the power to make findings of primary fact: Rose at [26]-[31].
It follows that Mr Azeem's dissatisfaction with the factual conclusions which Brender LCM arrived at on all the evidence, which he considers to have been wrong or contrary to evidence he advanced, is not a basis on which his appeal can succeed.
Nor is there any error of law simply in making a wrong finding of fact, as Mr Azeem contended that his Honour did: Waterford v Commonwealth (1987) 163 CLR 54 at 77; [1987] HCA 25, discussed in Walsh v. Visionstream Pty. Limited [2004] NSWCA 104 at [19].
Further, even reasoning by which a court arrived at a finding of fact that was demonstrably unsound, does not amount to an error of law: R v District; Ex parte White (1966) 116 CLR 644 at 654. Nor does want of logic or illogical reasoning establish such an error: Rivera v Health Care Complaints Commission [2006] NSWCA 216 at [83].
A decision maker does commit an error of law by making a finding for which there is no basis in the evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32. That requires, however, that there be no probative evidence at all, no matter how slight, to justify the decision: Jankovic v Director of Public Prosecutions (2020) 281 A Crim R 378; [2020] NSWCA 31 at [70]. Wrongly rejecting material evidence may also be an error of law: HG v R (1999) 197 CLR 414; [1999] HCA 2 at [98].
It follows that like the Compensation Court Act 1984 (NSW) which was considered in Walsh, the Local Court Act does not empower this Court to consider an appeal advanced on the basis of the unreasonableness or injustice of a challenged decision, as was essentially Mr Azeem's case.
Nor does Mr Azeem's desire to have a witness dealt with for perjury establish any error of law in the Local Court. That would require findings of fact to have been made in the Local Court, which Mr Azeem did not seek and which cannot be made on this appeal.
[7]
Mr Kahlon
What Mr Azeem pursued in respect of Mr Kahlon in the Local Court established no error of law, even though his name was misspelt in Brender LCM's decision.
Mr Azeem had been served with an affidavit which Mr Kahlon had sworn, which Mr and Ms Zafar's solicitor, Mr Jacobs, had helped prepare. That led Mr Azeem to take steps to subpoena Mr Kahlon. Mr Jacobs could not accept service of the subpoena, with the result that Mr Azeem served the subpoena personally. When they spoke, Mr Kahlon agreed to swear a second affidavit, in which he said his first affidavit was incorrect.
It was Mr Azeem who called Mr Kahlon to give evidence in the Local Court. Both affidavits were then tendered and he gave oral evidence which confirmed that his first affidavit was incorrect, for reasons which he then explained. He was then cross examined by Ms Edwards, appearing for Mr and Ms Zafar, and then denied that his second affidavit, or his oral evidence, were false.
What submissions the parties advanced about Mr Kahlon's evidence was not revealed by the evidence Mr Azeem led. The transcript that Mr Azeem quoted from does not establish that he made any application to have Mr Kahlon dealt with for perjury, which his Honour failed to deal with. What his Honour did conclude was that no weight could be given to Mr Kahlon's evidence. This was not attacked on the appeal as not having been a conclusion open to his Honour in the circumstances which arose to be considered.
Nor did Mr Azeem take issue on the appeal with the explanation which Mr Kahlon gave in his oral evidence of the circumstances in which he came to swear his first affidavit. That he could, in those circumstances, be dealt with for perjury is not apparent.
In the result, that there was any error of law in his Honour not having taken steps to have Mr Kahlon dealt with for perjury, has not been established.
[8]
Mr Gentle's evidence
Brender LCM's judgment establishes that Mr Gentle's affidavit was in evidence. On the quoted transcript, it was tendered by Mr Azeem. Mr Gentle was also present, Mr Azeem having subpoenaed him to attend. That was obviously necessary, because he might have been required for cross examination.
On Mr Azeem's case it appears that in the Local Court, in accordance with the requirements of the Civil Procedure Act 2005 (NSW), the parties were required to file and serve their evidence before the hearing. That accorded with the overriding purpose of that legislative scheme which bound the Court, the parties and their representatives, that being the just, quick and cheap resolution of the real issues in the proceedings: s 56. It also ensured that the litigation was not conducted by ambush or surprise.
In his affidavit, Mr Gentle said he had acted for all the parties on immigration matters from 2014, when Mr Azeem first lodged a 457 visa application in September. He was Mr Azeem's witness. His affidavit apparently annexed hundreds of pages of documents.
As it transpired, Mr Gentle's evidence was not challenged at the hearing and so he was not required for cross examination. On that being indicated, Mr Azeem sought to call him to give further oral evidence. That was refused, after the following exchange:
"Judge: … Alright so Mr Azeem, Mr Gentle is not required for cross examination so he's free to leave then yeah.
Plaintiff: Your honour, I would like Mr Matthew to explain the actual matter.
Judge: No, his evidence is in writing. That's what I told you to do. You've done the affidavit. It's in. Every word that you wanted is in there, no objection.
Plaintiff: No problem.
Judge: So, we don't need him.
Plaintiff: That's alright."
It appears from Mr Azeem's submissions on the appeal, that despite what he so said, what he really wanted to do was to call oral evidence from Mr Gentle about matters which had been dealt with in Mr Zafar's affidavit. But he did not disclose this in the Local Court.
What Mr Zafar had explained in his affidavit included how Mr Azeem came to be employed, after a successful application for their approval as a Standard Business Sponsor, with which Mr Gentle had assisted; and how Mr Azeem's employment had come to an end in 2017 after Metro Sports' sponsorship of his visa had ended; his entitlements having then been paid in full and the business ceasing to operate. Metro Sports was then deregistered and he next heard from Mr Azeem in June 2018, after the refusal of his application for permanent residency, after which Mr Azeem pursued complaints about Mr Zafar to various authorities. He also unsuccessfully pursued proceedings against him before NCAT.
Why that evidence was not dealt with by Mr Gentle in an affidavit, as the Local Court had directed, was not explained either in the Local Court or on the appeal.
Given what there unfolded, I am not persuaded that his Honour fell into any error of law. Mr Gentle's affidavit and attached documents were unchallenged. His Honour's refusal of the opportunity Mr Azeem belatedly sought to call him to "explain the actual matter", was well open, given the Court's earlier directions about how the evidence was to be led. Indeed, that was then accepted by Mr Azeem, after the explanation which his Honour gave.
Mr Gentle had already given an explanation of his dealings with the parties and the relevant documents. What he said in his affidavit included dealings which he had had with them after 2017, but he said that he did not know the date on which Mr Azeem's employment ended.
Mr Azeem's case about this was contradictory.
On the one hand he claimed in the Local Court that he had been terminated and so was entitled to payment for notice he had not been given, as well as to redundancy pay. But in these proceedings he also claimed that he had resigned. They cannot both have occurred.
As I explained, there were documents in evidence on which Mr Zafar had relied in the Local Court to prove his case, that the employment ended in 2017, which Mr Azeem did not put before this Court on this appeal. He relied on the documents on which he relied to advance his case, as well as the absence of documents which he contended should have been brought into existence by Mr and Ms Zafar, if his employment had terminated in 2017, given obligations imposed on them, as his sponsor.
These were all matters which Mr Azeem had a fair opportunity to lead affidavit evidence from Mr Gentle about, without calling him to give oral evidence. In all of those circumstances, that there was any error of law in his Honour's refusal to allow such further undisclosed evidence to be called orally from Mr Gentle, was not established.
[9]
The rejection of Mr Azeem's case
It is also impossible to conclude that the rejection of Mr Azeem's case involved any error of law. Not all of the evidence which the parties relied on in the Local Court was led on the appeal, nor was all of the transcript of the proceedings.
That there was no evidence on which the defence case could have been accepted, was thus not established. To the contrary, Mr Zafar's unchallenged evidence about his discussion with Mr Azeem when the employment came to an end in 2017, at a time when the business was folding, supported as it apparently was by bank and superannuation records to which his Honour referred, as well as steps taken to deregister the business, precludes that conclusion.
That there was no evidence that notice had then been given by Mr and Ms Zafar to the immigration authorities about the termination of the employment, as its sponsorship required, may have supported Mr Azeem's case. The termination was found to have occurred around the time the three year sponsorship had ended. But this requirement was not dealt with in the decision, or established by documents, let alone ones that there can be confidence were in evidence in the Local Court.
It follows that even if reasonable minds might have differed about what all of the evidence his Honour had to consider established, it is not open to conclude that there was no evidence supporting his finding that the employment came to an end in 2017. To the contrary, his Honour referred to evidence which he considered did support it.
His Honour did not explain all of the documents on which Mr Azeem relied, nor was he required to do so. He identified what was in evidence and referred to those documents he considered relevant to his resolution of what lay in issue between the parties, in the explanation which he gave of the conclusions which he had reached. What is referred to appears to include some of those attached to Mr Gentle's affidavit. That his Honour failed to consider relevant documents was thus not established.
Mr Azeem's case was rejected, not only because his Honour found that some of the documents he relied on were not relevant to the question of the time of the termination of the employment, but because of his rejection of communications on which Mr Azeem relied, having made adverse findings about their authenticity.
That those findings were not open or involved any error of law was also not established. They help explain why Mr Azeem's case about the date of the termination was rejected, concocted as his Honour found those communications to have been.
In the result, I am not satisfied that any error of law has been established, with the result that the appeal must be dismissed, with no order as to costs, Mr and Ms Zafar not having participated to resist the appeal.
[10]
Orders
For these reasons I order that the appeal be dismissed with no order as to costs.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 May 2024