Cooper v Sonnet trading as V People

Federal Court of Australia|2024-04-05|Before: Meagher J

The notice of objection to competency of appeal filed on 23 November 2023 be dismissed.
The appeal be dismissed.
The parties are to bear their own costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 By an amended notice of appeal filed on 10 November 2023, the appellant seeks to appeal against the whole of the decision of Cooper v William Sonnet Trading as V People [2023] FedCFamC2G 772 (PJ). The Primary Judge dismissed an application seeking the payment of unpaid wages on the basis that the respondent had rectified the underpayment and remitted 47 per cent to the Australian Taxation Office (ATO). In her amended notice of appeal, the appellant relied on the following grounds: 1. I oppose the orders to dismiss this case made by Judge Vasta 07//09/2023. 2. The evidence of payment provided and relied upon by the respondent was not evidence of wages paid to appellant. The appellant did not receive unpaid wages from respondent of $10,467.89. 3. I ask permission for the court to issue 2 subpoenas relating to the 2 unresolved issues in dispute by the appellant. Payment for balance of unpaid wages has not been received by the appellant. Please refer to pages 8 to 13 of original Affidavit for detailed explanation. 2 The appellant thus seeks orders for the respondent to pay the appellant the sum of $10,467.89, damages and costs. 3 For the reasons that follow, the appeal is dismissed.

The proceedings below 4 The factual background to this matter is helpfully and comprehensively set out in the Primary Judge's reasons at [3] - [14]. The key facts are as follows. 5 From 1 September 2019 until 31 October 2021, the appellant, Ms Carolyn Cooper, was an employee of the respondent, William Sonnet trading as V People. During this period, the appellant and the respondent engaged in a cash payment arrangement whereby the appellant was to be paid $80.00 in cash for every six-hour shift she worked. The parties had also agreed that the appellant would receive commission of $10.00 after she sold $300.00 worth of stock and a further $10.00 for every $100.00 worth of sales made thereafter. 6 There is some factual dispute as to who initiated the discussion around the cash arrangement. The appellant claims that the respondent instituted this arrangement and the respondent claims that the appellant sought it. 7 The appellant claims that the working relationship with the respondent began to deteriorate around October 2021. At this time, the appellant alleges she became aware that she was being underpaid for her services as a casual retail salesperson. Following a letter by the appellant to the respondent notifying him of the underpayment, the respondent, through his lawyer, requested the appellant's Tax File Number (TFN) in order to rectify the underpayment. The appellant refused to provide her TFN on the basis that she wished to first agree on the amounts to be paid. 8 The respondent's accountant calculated that the appellant had been paid in cash the sum of $8,560.00 for wages and $1,870.00 for commission. Given that the General Retail Industry Award (the Award) does not address commission, the Primary Judge was satisfied that the commission paid should be treated as wages paid. Therefore, the Primary Judge found the appellant had been paid a total of $10,630.00 in cash. 9 As the appellant refused to provide her TFN, the respondent proceeded to remit 47 per cent of the unpaid amount, being $10,416.00, to the ATO. The remaining 53 per cent was calculated as being a sum of $12,104.57. The respondent therefore paid the appellant the sum of $1,474.57, being the difference between the cash amount she had already received and the total of the 53 per cent referred to in the preceding sentence. The appellant acknowledged that she has received this sum. 10 On 7 August 2023, the Primary Judge accepted that the underpayment was rectified and dismissed the application.

Appeal 11 At the outset, it should be noted that both parties were self-represented in these proceedings. 12 In her amended notice of appeal, the appellant sought the following relief: 1. The respondent to pay to the appellant the sum of $10,467.89 for balance of unpaid wages. 2. The respondent to pay to the appellant costs associated with these proceedings. 3. I ask Her Honour to consider making an order for damages in favour of the appellant if this case is found in favour of the appellant. The proceedings to have unpaid wages reimbursed from the respondent has taken from February 2022 to October 2023. The respondent provided fraudulent documents to prove payment that has not been received by the appellant. Please refer to Pages 8 to 13 of original affidavit. 13 At the core of these proceedings is the appellant's allegation that the documents provided by the respondent that he had paid the funds to the ATO were fraudulent as she has not received the $10,467.89 which she says she is owed. Further, the applicant submitted that she has not received the amount of $10,416.00 which the respondent submitted has been remitted to the ATO. 14 On 23 November 2023, the respondent filed a notice of objection to competency which seeks that the appeal application be dismissed. The notice provides the following grounds of objection: 1. The amended notice of appeal, filed by the appellant on 10 November 2023, lacks merit as it fails to identify the error of law and it does not provide a sensible framework to comply with the r 36.01 of the Federal Court Rules 2011 (Cth) as ordered by the court on 12 October 2023. 2. By challenging the evidence of payment presented in the Federal Circuit and Family court in the grounds of appeal, appellant is inviting the Court to rehear the matter ab initio. "It is unrealistic to invite the appellate court to revisit the evidence at large as is invited by the grounds of appeal, even in their ultimate, narrower form." 3. Appellant in the third paragraph of grounds of appeal raising a new claim altogether implying that 2 issues were left unresolved by the previous court without substantiation. 15 In the appellant's written response to the respondents' grounds of objection, the appellant submitted: The appellant is not identifying an error of law but rather that a significant issue was overlooked by the Judge who tried the case and who therefore dismissed the case because he believed funds had been paid to the appellant. There are certain circumstances where this is allowed by the court.

legislative framework 16 Section 27 of the Federal Court of Australia Act 1976 (Cth) provides: Evidence on appeal In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or (c) by oral examination before the Court or a Judge; or (d) otherwise in accordance with section 46. 17 Rule 36.01(2) of the Federal Court Rules 2011 (Cth) specifies what a notice of appeal must include: (2) The notice of appeal must state: (a) whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and (b) if only part of the judgment, or some of the orders, is appealed from - the part of the judgment or the particular orders appealed from; and (c) briefly but specifically, the grounds relied on in support of the appeal; and (d) the judgment or orders the appellant wants instead of the judgment or orders appealed from. 18 Rule 36.72 of the Rules provides the mechanism for the filing of a notice of objection to competency of appeal: Notice of objection to competency of appeal (1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency: (a) in accordance with Form 125; and (b) that, briefly but specifically, states the grounds of the objection. (2) The appellant carries the burden of establishing the competency of an appeal. (3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal. (4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal. (5) If the Court decides that an appeal is not competent, the appeal is dismissed.

Is the appeal incompetent? 19 At the hearing, the respondent requested that the competency of the appeal be determined before the hearing of the appeal. He submitted that, despite the appellant having the opportunity to present evidence as to the lack of authenticity of his evidence at the first instance, she did not do so. To that end, the respondent referred to Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 at [41] in which it was stated (per Weinberg and Dowsett JJ): …It is unrealistic to expect an appellate court to revisit the evidence at large as is invited by the grounds of appeal, even in their ultimate, narrower form. … 20 A notice of appeal may be incompetent when it is "incomprehensible or entirely unrelated to the issues dealt with in the judgment": Zegarac v Dellios [2007] FCAFC 58 at [7] (North J, Weingberg and Jessup JJ agreeing). 21 In McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10, the Court stated at [6]: The word "incompetent" is one that is not alone amongst legal terms in having the capacity to offend people who do not know that it is a term of art. It may be a term that needs revision and one that should be brought up to date. But in the context of this case, what it means to say that an appeal is incompetent is that the matter simply cannot proceed because the law does not allow it to. …. (emphasis added) 22 In these circumstances, while the amended notice of appeal does fail to disclose any error of law, I am not satisfied that the appeal should be dismissed on the basis of incompetency. This is not a matter where the Court does not have jurisdiction to hear the appeal (Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1725) nor is it a case where the grounds of appeal are incomprehensible (Lindsey v Philip Morris Ltd [2004] FCAFC 40). Further, as noted by Dowsett J in CKF16 v Minister for Immigration and Border Protection [2017] FCA 1492 at [16]: Rule 36.72 is designed to facilitate the speedy and economical termination of incompetent appeals. Unless an appellant accepts that his or her appeal is incompetent, there will inevitably be a hearing concerning that issue. In a migration case, where an appellant is unrepresented, it would be unrealistic to expect him or her to concede the alleged incompetence. Hence, through no fault of the Minister, a hearing will be almost inevitable. … 23 In this instance, the appeal should proceed so that the appellant's arguments can be ventilated.

Amended Notice of Appeal 24 Notwithstanding the above, the amended notice of appeal must fail for the following reasons. 25 The scope of the appellate jurisdiction of the Court as it relates to the reversal of findings of fact is summarised by Barwick CJ (as his Honour then was) in Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 at 303-304: I do not understand anything said in the reported cases and in particular in such cases as Powell v. Streatham Manor Nursing Home and in Benmax v. Austin Motor Co. Ltd to deny the proposition that an appellant to succeed in an appeal against a finding of fact made by a judge sitting alone must convince the appellate court that the primary judge was wrong in his conclusion. (footnotes omitted) 26 This principle was reiterated in Sydneywide Distributors at [4]: … Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal. (emphasis added) 27 In her response to the respondent's objection to competency, the appellant stated: There are two issues that were left unresolved by the previous court because the respondent supplied the court with a document that did not provide proof of payment and secondly the respondent filed activity statement with the ATO for income of $7365.00 supposedly paid to me but again that is not proof that I received these monies. 28 The appellant also noted various errors which she submitted were made by the Primary Judge, which can be summarised as follows: (a) the Primary Judge was influenced by misinformation put forward by the respondent, including in relation to the appellant's character, intentions, statements and conduct; and (b) the Primary Judge accepted fraudulent documents adduced by the respondent as to the payment of her wages. 29 The appellant contended that the respondent's statements may have been influential in the Primary Judge's decision and sought to respond to various statements made by the respondent in the hearing below. For example, the appellant denied the existence of a conversation which the respondent alleged occurred, that the appellant sought payment in cash as she did not want to declare wages to the ATO and impact her Centrelink payments. Further, in response to the respondent's statement that the applicant refused to provide her TFN details when requested, the appellant submitted that no such conversation took place. 30 As the reasons of the Primary Judge disclose, while his Honour acknowledged the factual disputes, ultimately the decision was made on a number of bases including that the appellant provided no satisfactory evidence that she had been underpaid and the respondent had provided pay slips and payment summaries available at the time of the PJ, the result of which was that the Primary Judge was satisfied that the underpayment had been rectified. 31 As to the appellant's claim that the documents provided by the respondent are fraudulent, she provided no evidence to support this serious allegation. On 30 January 2024, the appellant lodged a request for leave to issue subpoena to produce documents, including activity statements and single touch payroll documents of the respondent. Leave to issue the subpoena was refused on the basis that it did not have a legitimate forensic purpose in these proceedings: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 - 575. 32 On 15 February 2024, the appellant emailed a letter to chambers requesting the Court to receive further evidence on appeal. It is understood the appellant was not seeking to adduce further evidence of her own. Rather, she sought further evidence to be received from the respondent, which was in substantially the same form as the subpoena which had previously been refused. Given that the subpoena had been refused on the basis that it did not have a legitimate forensic purpose and the appellant had provided no basis for entertaining a dispute over the fact finding of the Primary Judge, I did not exercise the discretion to allow her to adduce new evidence on appeal. 33 On 26 February 2024, the appellant provided to the respondent a notice to produce a document in a pleading or affidavit as follows: 1. Produce documents associated with ATO receipt of $10,416.00 01/04/2022, your affidavit filed 20/10/2022. Your receipt does not prove that these funds were paid on my behalf to my Tax File Number. You have stated that these funds were paid as PAYG Tax. … 2. Produce documents/receipt of funds that appear on my ATO MyGov account of my Income Statement 2021-2022. Employer Sonnet, William. Income $7366.47 and Tax $3463.00. I require evidence of this payment on my behalf to the ATO. … 34 In response, the respondent contended that the Notice to Produce was not signed nor did it refer to a document in an affidavit filed in these proceedings. The respondent also submitted that the Activity Statement contains sensitive information. At the hearing, the respondent reiterated his concerns about producing the documents to the appellant's email address but noted that he had no objection to tendering the documents to the Court as an exhibit. 35 Accordingly, the respondent tendered evidence of Payroll Employee Summaries for three financial years totalling a tax payment in respect of the appellant in the sum of $10,416.00. He also tendered an Activity Statement from the ATO evidencing the payment of $10,416.00, which was processed on 4 April 2022. Such an amount appears to be the tax withheld, comprising 47% of the income over three years. If the appellant completes her tax returns, she will receive any money to which she is entitled from the tax which was withheld. 36 At PJ[40], [41] and [46], the Primary Judge concluded: The applicant quite bizarrely says to the Court, "Why would I put in a tax return for money I didn't receive". The applicant clearly has no idea as to how tax returns, and the tax system itself, work. Upon receipt of the payment summary, it is then the ATO's responsibility to ensure that the amount on the payment summary, that was said to have been withheld, has been received by the ATO. If it were that the money had not been received by the ATO, the ATO would be the ones going after the respondent to find the money that the payslips, and yearly summaries, purport to have been remitted to the ATO. The evidence before me, clearly, is that the respondents have remitted that money to the ATO. The applicant's assertions that this is not so it not borne out by any evidence and certainly not borne out by the most reliable way of seeing whether that is so; and that is by attaching those payment summaries to her tax return. … It is a matter for the applicant to talk to the ATO about the remitted money giving them the payment summaries. It is no longer a matter for this Court. 37 On the evidence before me, the position remains unchanged. It is unclear whether the appellant has completed the relevant tax returns so that she may be able to receive a tax refund. The appellant maintained that "while a tax return might deliver a refund of the withholding tax, only if the respondent has paid that to the ATO, but also I would be accepting that I received the $7365 income, which I have not". 38 At the hearing, the appellant handed up evidence which annexed what appears to be a screenshot of a tax return which details the income as being $7,365.00 and the tax withheld as $3,463.00. This evidence is generally consistent with the Payroll Employee Summary provided by the respondent for the 2021-2022 financial year which provides the earnings as $7,366.47 and the tax as $3,463.00. Indeed, such evidence supports the position that the respondent did provide the $10,416.00 to the ATO as tax withheld for the appellant, of which $3,463.00 was withheld for the relevant year. 39 As acknowledged by the Primary Judge, there had undoubtedly been an underpayment. However, it remains the case that the underpayment has been rectified. The appellant has not provided any evidence to support the proposition that the respondent had relied upon fraudulent evidence. The Primary Judge did not err on the finding of fact in that regard.

conclusion 40 While the notice of objection to competency to appeal is dismissed on the basis that the appeal is competent, the amended notice of appeal is dismissed as it discloses no appealable error and is without merit. Given that both parties are self-represented, each party is to bear their own costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.

Federal Court Rules 2011(Cth)rr 36.01(2), 36.72

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