Ground 3 - second error
92 The second suggested basis of error in the third ground is that the primary judge failed to consider or have regard to particular items of evidence in determining whether or not the appellant worked for Veejay on secondment. This represents a shift away from the notice of appeal which contended that particular evidence gave rise to compelling inferences contrary to the findings of the primary judge. The respondent did not take issue with this shift in the appellant's case. In any event, the shift is of little consequence. For the reasons set out below, we are not satisfied that any of the evidence relied upon by the appellant is of such importance that the primary judge erred in not considering it, or gives rise to inferences sufficiently compelling that the primary judge's finding that the appellant did not continue to work as an employee for Platinum between 5 July 2015 and October 2016 should be set aside.
93 The evidence which the appellant contends the primary judge failed to consider is as follows.
94 First, the following affidavit evidence of the respondent:
57. After a number of weeks had passed I received a call from my father and we had a conversation to the following effect:
John: … I just got a call from [the appellant] telling me he isn't going into work tomorrow because he wants to work for his friends.
Respondent: Well, that's his problem. I told him he isn't allowed to do his own thing. But he doesn't like to listen. That's why I told him to fuck off when he insisted on leaving me to buy his own truck.
…
60. A number of months went past and I did not deal with [the appellant] other than at normal family functions or when I would visit my parents as he was living there. Sometime in October of 2016 I received a phone call from John and we had a conversation to the following effect:
John: … that fucking idiot [the appellant] doesn't listen to instructions. I told him to come down and he insisted on doing his own thing. He hit the fucking fire sprinklers in Westfields and flooded the fucking shops.
Respondent: Are you serious? You need to notify the insurance company right away.
John: I have, the fire brigade are here. It is a fucking shit fight.
95 The appellant relies on this as evidence supporting the proposition that John continued to report to the respondent incidents at his workplace involving the appellant. However, neither conversation suggests that the appellant continued to be employed by Platinum. Indeed, the conversations are consistent with such employment having terminated and with the appellant working for Veejay. Further, the fact that there were conversations between the respondent and his father concerning the appellant (a closely related family member) is unremarkable. This evidence does not favour the appellant much less in any significant way; and gives rise to no inferences favourable to him, much less any compelling inference.
96 The second item of evidence upon which the appellant relies is the respondent's evidence that he received the appellant's tax refund for the 2015 financial year on 21 June 2016.
97 The primary judge referred to this receipt at J[240]. The appellant's submissions do not explain the basis on which he contends that this evidence was not considered by the primary judge; its significance; or the inference to which it is said to give rise. It is not on its face supportive of the proposition that the appellant continued to work for Platinum beyond 26 June 2015, particularly as it relates to the 2015 financial year.
98 The third item of evidence upon which the appellant relies is Jousephine's evidence of a meeting in July 2017 (July 2017 meeting) in which she recounted that John said that he had transferred the appellant's wages to the respondent's account and did not know why the respondent was not paying the appellant. The evidence relied upon by the appellant is:
(1) the following evidence in an affidavit made by Jousephine:
[6] In or about July 2017, I arranged a meeting at my house at … and the following conversation took place.
Jousephine: Why are you [the respondent] not paying [the appellant] his money?
John: I am transferring the money to [the respondent's] account and he pays him [the appellant]. I don't know why [the respondent] is not paying [the appellant]. I still have seven weeks of [the appellant's] wages that I have not transferred to [the respondent's] account].
Jousephine: Why are you not paying [the appellant]?
Respondent: I don't have the money. I have lots of bills to pay.
Jousephine: But you are supposed to pay [the appellant] every week.
Respondent: I know, but I don't have the money.
Jousephine: But if your dad [John] is transferring the money for you to pay [the appellant], you should be paying him.
Respondent: I know but I have to pay my bills first.
Jousephine: Well let [the appellant] work for someone else then if you are not going to pay him.
Respondent: I am the one who got him into Australia. I am the one who should benefit from him not other people.
[7] I arranged a meeting for [the appellant] and [the respondent] to see if they can resolve their differences in a mature way.
(2) the following evidence from the cross-examination of Jousephine:
Ms Dahdah, the conversation which is set out in paragraph 6 of your affidavit, you say, "John said I'm transferring money to [the respondent's] account and he paid. I don't know why [the respondent] is not paying [the appellant]," this is what John said, right?---Yes. That was the first meeting I arranged to see [the respondent] to ask him, you know, to resolve the problem between him and my brother, and you know, to pay him his money. That's when my uncle and his wife came over, too. My brother was in prison and I asked him why - I asked my brother John because I know - my uncle John, because I knew my brother was working with him and I said to him, "Why isn't he getting paid?" And then my uncle said that he is transferring the money to [the respondent's] account to [sic] [the respondent] can pay him. I don't know why [the respondent] is not paying him.
99 The appellant submitted that the primary judge erred by failing to consider or engage with the above evidence, with such failure being apparent from the absence of a reference to the July 2017 meeting in the primary judgment. As explained at [12] above, a primary judge is not required to deal with all items of evidence and whether any failure to deal with particular evidence gives rise to appealable error depends upon the significance of that evidence. The above evidence is of little moment when considered in the context of Jousephine's cross-examination as a whole, which included:
…
So you understood the amount of money which was being owed to [the appellant] was the amount … that John owed [the appellant] because [the appellant] worked for John, is that correct?---Yes.
…
And so I want to put to you when you were saying that, you understood that the money which [the appellant] was claiming was for work he had performed for John?---Yes, correct.
100 The fourth item of evidence upon which the appellant relies is an entry in the respondent's bank account dated 19 February 2016 with the description:
Veejay Trans pl employment inv
101 The appellant contended that this was evidence that John transferred this amount to the respondent and (inferentially) that this was a payment by Veejay to Platinum for the services of the appellant on secondment. Whilst the possibility that this was the purpose of the payment cannot be excluded, it is far from strong evidence to that effect. There is no reference to the appellant in this entry nor have other possible explanations been excluded.
102 The fifth item of evidence upon which the appellant relies is the following evidence from Jousephine in cross-examination:
How long did you know that - or how long, to your knowledge, did [the appellant] work with your Uncle John?---Well he did for a long time. Exactly how long is that, I'm not sure. Because, as far as I know he went - he was working with Uncle John, and the - the last time that he worked with [the respondent], Uncle John had a job to do and he was at that time in - he went for a holiday in Lebanon, so he went with [the respondent] to that job. I'm not sure when was that exactly because it's not my concern, you know, to actually ask questions, but he did work with my uncle John for a long time, but - - -
103 The appellant relies upon this evidence as supporting the proposition that John asked the respondent and the appellant to perform a job. It is not clear that the evidence supports that proposition. In any event, even if this proposition had been made good, it would not follow that the appellant was not working for Veejay at that time.
104 The sixth item of evidence upon which the appellant relies is the following evidence from the appellant in cross-examination:
Mr Seck: Okay. Now, go back to the first page. You will see at 30 September 2015 there's an entry for Veolia Environmental Services, $200. Do you see that?
Interpreter: Yes.
Mr Seck: Do you know what that was for?
Interpreter: Yes.
Mr Seck: What was that for?
Interpreter: So it's a company that I worked with while I was working with [the respondent's] father, so I emptied the truck when I did the job.
Mr Seck: Okay.
105 The appellant relies upon this evidence as establishing the proposition that John would send the appellant to work for a third party. That proposition is wholly consistent with the primary judge's findings.
106 The seventh item of evidence upon which the appellant relies is the following evidence of Jousephine in cross-examination:
Did he tell you about - that's the only mistake he told you about?---Yes, and there was another one. It's not a mistake, where he was working, actually, him and [the respondent] - my uncle John sent them to do a job - to take a fence out from where they're going to drive the truck through. They did and the lady said, "Don't put the fence back, I don't want it back now." So anyhow, and then they called my uncle John, maybe a year later. She wanted the fence to be put back. But there wasn't - and my uncle John blamed him for it because the lady - at that time, [the respondent] was present, too, with him. And the lady said not to put the fence, so they blamed him in the end for it.
107 The appellant relies upon this evidence as establishing the proposition that there was an occasion on which John had sent the respondent and the appellant to do a job requiring the removal of a fence. Again, such a proposition is not contrary to the primary judge's finding that the appellant was working for Veejay.
108 The eighth item of evidence upon which the appellant relies is the following evidence of Jousephine in cross-examination:
So when you understood that [the appellant] was saying that his wages hadn't been paid, you understood that to relate to the time he had been working with Platinum Distributors or working with John, that was the claim for the wages that he says he hadn't been paid, correct? That's your understanding?---Yes, my understand, yes. The - whatever work he did with my uncle - with my uncle for [the respondent], whatever he did, not get paid for it.
109 The appellant relies on this as evidence for the proposition that the appellant's unpaid wages related to work he did with the respondent for John. The evidence cited does not support that proposition. In any event the evidence referred to at [99] above makes clear that Jousephine's understanding (to the extent that this is relevant) was that the appellant was working for Veejay, not Platinum.
110 The ninth item of evidence upon which the appellant relies is the following evidence of the appellant under cross-examination:
Mr Seck: And you ended up working for [the respondent's] father John Dahdah for his business VJ Trans?
Interpreter: [The respondent] made me work for John, his dad.
Mr Seck: When you say he made you work for John, that's not true. You decided to approach John and ask him to work there, correct?
Interpreter: Not true.
Mr Seck: You actually approached John on or about 5 July 2015 and asked whether or not you could work for his business.
Interpreter: Not true.
Mr Seck: And you started performing work after 5 July in John's business as a labourer.
Interpreter: So [the respondent] made me work for his father.
Mr Seck: [The respondent] never gave you a direction to work for his father, you approached [the respondent's] father to work.
Interpreter: Not true.
Mr Seck: And [the respondent's] father paid you for the work performed in cash?
Ms Okereke-Fisher: Your Honour, I object to that question. It's not in evidence, your Honour.
His Honour: I allow the question.
Mr Seck: [The respondent's] father paid you in cash?
Interpreter: John never paid me, it was [the respondent] who used to pay me.
Mr Seck: And John Dahdah gave you a truck when you started working for him, that's right?
Interpreter: I used to work as a labourer first, and then he gave me the truck.
111 The appellant relies upon this evidence as establishing the proposition that the respondent made him work for John, he worked as a labourer, then he was given a truck. The appellant's submission impermissibly assumes the veracity of the appellant's evidence, a matter which the primary judge made clear he did not accept.
112 The final item of evidence upon which the appellant relies is the following evidence from John:
Now, Mr Dahdah, in the course of the - part of the work that [the appellant] did for VJ, you say, included driving a truck, is that correct?---Yes.
Do you remember ever travelling out of state with [the appellant] to procure a truck?---Yes.
And the truck in question, was is [sic] it a truck for VJs operations?---No.
What was the truck for?---We were picking up a truck for [the respondent].
113 The appellant relies upon this evidence as establishing the proposition that John travelled inter-state with the appellant to pick up a truck that the respondent had purchased. This is far from persuasive evidence that the appellant was employed by Platinum and not by Veejay.
114 At its highest, some of the evidence discussed at [94] to [113] above might have been capable of supporting a finding that the appellant did continue to work as an employee for Platinum between 5 July 2015 and October 2016. However, none of it individually or in any combination is of such significance that the primary judge (to the extent that he did not) was required to expressly deal with it in his judgment. Nor does it give rise to any inference so compelling that the primary judge's finding that the appellant did not continue to work as an employee for Platinum during that period should be set aside.
115 Ground 3 should be dismissed.