Gambaro v Mobycom Mobile Pty Ltd [2021] FCA 211 | Case summary

LOGAN J: 1 As long ago as 13 July 2016, the applicant, Mr Michael Gambaro (Mr Gambaro), filed in this Court's Queensland District Registry an originating application under the Fair Work Act 2009 (Cth) (FWA), together with a related statement of claim, by which he alleged that he had been underpaid wages. Later he case to alleged he had been, dismissed from employment in contravention of general protections found in that Act. The nature of his claim was such that it was apt for remission to the Federal Circuit Court of Australia (Federal Circuit Court) in the event that the proceeding did not settle at mediation. An order was made accordingly at the first case management hearing, conducted on 2 August 2016. 2 The proceeding did not settle at mediation. That had the consequence, in terms of the order made on 2 August 2016, that it stood remitted to the Federal Circuit Court for further hearing and determination according to law. 3 Over four and a half years after its institution, the proceeding is yet finally to be determined. Why that is so is multifactorial. Latterly, one factor has undoubtedly been the impact on the administration of justice, both in the Federal Circuit Court and in this Court, as well as in the wider community, of public health restrictions flowing from the impact of the COVID-19 pandemic. Another is the sheer nature and extent of the workload of the Federal Circuit Court and the limited number of judges appointed to deal with that workload. But it must also be recorded, with all due respect to Mr Gambaro, that another factor has been his unfamiliarity with the nature of our adversarial system of justice, with practice and procedure and with substantive law. That unfamiliarity has presented difficulties not just for him but also for judges from time to time assigned with case management and trial responsibilities and for the various respondents. This latter factor has already provided occasion for one appeal, by leave, by the respondents. It has now provided occasion for a brace of applications by Mr Gambaro for leave to appeal and related extensions of time. These further applications were heard together although, in light of later events, it is only necessary to determine one of them. 4 After remitter, the proceeding was actively case managed in the Federal Circuit Court, to the end of its being set down for trial as soon as possible. One indication of the Federal Circuit Court's workload is that, although trial dates were allocated at a case management hearing held on 7 December 2017, the earliest available were 30 and 31 August 2018. Another order made on 7 December 2017 was an order for costs against Mr Gambaro (2017 costs order). 5 The trial did commence on 30 August 2018. Unfortunately, on 30 August 2018, the trial miscarried. The interlocutory orders made at the trial that day became, by leave, the subject of a successful appeal to this Court by the respondents to Mr Gambaro's application for substantive relief: Mimebourne Pty Ltd as Trustee for the Fountain Family Trust v Gambaro [2018] FCA 1619. Further details of the procedural history of the litigation to that point are to be found in that judgment. It is not necessary to repeat them here. 6 After the appeal, the proceeding resumed its progress in the Federal Circuit Court towards a trial with a different judge being allocated case management responsibility. Mr Gambaro made an application on 7 May 2019 for leave to amend his statement of claim (amendment application). 7 The respondents in whose favour the 2017 costs order had been made filed an application in the Federal Circuit Court dated 17 July 2019 for its enforcement (costs enforcement application). 8 The amendment application and the costs enforcement application were each listed for hearing in the Federal Circuit Court on 2 August 2019. 9 The amendment application came to be heard on 10 October 2019. On 17 January 2020, for reasons delivered ex tempore, Gambaro v Mobycom Mobile Pty Ltd & Ors [2020] FCCA 121, the learned primary judge: (a) in circumstances where Mr Gambaro acknowledged that he had received payment for particular service rendered by him, refused to permit amendment of the statement of claim so as again to claim that remuneration from the entity that Mr Gambaro alleged had employed him. His Honour did so on the basis that, even if Mr Gambaro were correct as to who was his employer, it was lawful for an employer to engage a third person to discharge the e (b) mployer's liability to pay those who rendered service to the employer; (c) refused to grant leave so as to add a seventh respondent. His Honour did so because the proposed amendment did not, in his view, identify elements sufficient to raise a case for accessorial liability in terms of either s 55 or s 550 of the FWA; (d) otherwise granted leave to amend the statement of claim. 10 The application for leave to appeal and related extension of time which is QUD 41 of 2020, filed on 11 February 2020, is an endeavour by Mr Gambaro to challenge the orders which refused, to the extent indicated, leave to amend the statement of claim. 11 Prompted by the costs enforcement application, Mr Gambaro made a further application (erroneously termed by him a "response") to the Federal Circuit Court on 29 July 2019. The relief which he sought in that application included an order that the lawyers then acting for respondents be restrained from further so acting (restraint application). 12 The restraint application was eventually heard on 15 October 2019. On 17 January 2020, for reasons delivered ex tempore, his Honour, apparently, dismissed the restraint application: Gambaro v TShopBiz Pty Ltd & Ors [2020] FCCA 122. In his judgment, the learned primary judge stated, at [19]: 19. There is no basis here demonstrated in the material that has been advanced by the applicant to make the orders requiring the respondents' legal advisors - solicitors or counsel - to be restrained from acting in the proceedings any further. All that is demonstrated is that the applicant, who is not a lawyer and represents himself, has formed a misunderstanding, it seems to me, of a great many number of matters arising out of the pleadings in this case. 13 The need for the addition of the qualification, "apparently" in relation to proceedings on 17 January 2020 is that, having regard to [19] in his Honour's reasons for judgment, there ought to have been an order for the dismissal of so much of the "response" (deemed interlocutory application) as constituted the restraint application. However informally entitled, the "response" had been treated as an application for several interlocutory orders. The orders actually made that day provided for a costs order sequel to an inferential dismissal of the restraint application. It was submitted for the respondents to the present application that Mr Gambaro was seeking to challenge reasons, not an order. I do not accept this. His Honour's reasons for judgment, at [3], [4] and [19], reveal that the learned primary judge treated this part of the "response" as an application and determined it on that basis. The absence of a dismissal order is an obvious slip. The application for leave to appeal and related extension of time which is QUD 32 of 2020, filed on 3 February 2020, is an endeavour by Mr Gambaro to challenge the dismissal of the restraint application. 14 It was not until 9 April 2020, that the remaining applications made by Mr Gambaro in his "response" could he heard. Those remaining applications were for: (a) an order to set aside the 2017 costs order; and (b) an order that the solicitors for those who might be described as "the Telstra Respondent" refund to Mr Gambaro the total of $25 he had paid by instalments in respect of the 2017 costs order. 15 On that day, the Federal Circuit Court dismissed those applications, with costs: Gambaro v TShopBiz Pty Ltd & Ors (No 2) [2020] FCCA 1098. In form, the order of dismissal made on 9 April 2019 was in respect of all applications in the response but, as I have mentioned above, the intention revealed in the reasons for judgment delivered on 17 January 2019 appears to have been to dismiss on that day the restraint application and to reserve costs for later determination. In the result, nothing turns on whether this characterisation is correct. 16 At the same time, the learned primary judge determined an outstanding question from 17 January 2019 as to whether to make any costs order in respect of the dismissal of the restraint application. 17 On 23 April 2020, Mr Gambaro filed an application for leave to appeal and related extension of time in respect of the 2017 costs order. That application was allocated the file number QUD 129 of 2020. 18 On 1 May 2020, Mr Gambaro filed an application for leave to appeal and a related extension of time in respect of the Federal Circuit Court's orders made of 9 April 2020. That application was allocated the file number QUD 135 of 2020. 19 The costs enforcement application was heard by the learned primary judge on 17 April 2020. No further reference need be made to this as it is not the subject of any application for leave to appeal.

Some General Principles 20 Each of the orders which Mr Gambaro either still seeks or, in light of discontinuances which will be mentioned, once sought, to challenge is an interlocutory order. It is well settled that courts with an appellate jurisdiction should be circumspect in permitting challenges to interlocutory value judgments in respect of matters of practice and procedure or exercises of discretion made in an exercise of original jurisdiction: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 (Adam P Brown), at 177. 21 This circumspection is no less applicable to the industrial jurisdiction than it is to other civil proceedings. In one sense, it is even more applicable in industrial cases, as there are invariably strong commercial, private and public interests at large in their prompt resolution. 22 Failure to adopt this approach would enable those with a querulous disposition or a deep pocket to utilise such challenges as a means of oppressing other parties. It would also delay the finalisation of the proceeding in the original jurisdiction and be overly consumptive of finite judicial resources in the appellate jurisdiction. Even where such challenges are just the result of well-intentioned ignorance, these same results can follow. 23 This is no new subject, as this observation made by Jordan CJ in In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318, at 323, cited with approval in Adam P Brown, at 177, reveals: [T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. These sentiments are taken up in s 37M(1) and s 37M(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in relation to the provisions setting out the civil practice and procedure of the Court. 24 Unless some special provision is made in the original jurisdiction by the court pronouncing the judgment or making the order concerned, an application for leave to appeal to this Court against an interlocutory order must be instituted within 14 days after the date on which the judgment was pronounced or the order was made: Rule 35.13(a), Federal Court Rules 2011 (Cth) (Rules). An order is "pronounced" when it is made orally by a judge in open court. 25 Prospective merits are always a relevant consideration in relation to any extension of time application, as they are to an application for leave to appeal which does not require a related extension of time: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802, at [22]. However, such merits fall for assessment only at an impressionistic level, it being important not to treat the application as if it were a substantive hearing requiring a conclusion that the proposed ground(s) of appeal must succeed: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246, especially at [68] and [76]. Another way of putting that consideration is whether, having regard to the proposed grounds of appeal, the order sought to be challenged is attended with sufficient doubt to warrant a grant of leave to appeal: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor v Dart). If the proposed grounds of appeal are obviously hopeless, to grant an extension of time or, as the case may be, leave to appeal would be futile. However, even an impressionistically weak case may warrant the granting of an extension of time. 26 Another consideration which arises in relation to whether to grant leave to appeal is whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor v Dart. 27 In relation to whether to grant an extension of time, other considerations are the length of the delay, the adequacy, if any of the explanation offered by the applicant for that delay and what prejudice, if any, a respondent might suffer if an extension were granted: see Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. 28 These various considerations, prospective merits included, while able separately to be identified, interplay in the sense that, for example, an extension may well be warranted, even where an explanation or delay is not terribly compelling, where, as a matter of impression, prospective merits are strong and a serious injustice would follow if an extension were not granted. The fate of any extension of time application is, inevitably, "factually idiosyncratic". 29 That Mr Gambaro was and is representing himself and is not legally qualified does not mean that the rules of court have any different application to him than they do to a party who or which is legally represented, much less that there are no rules of court at all. Related to that, it does not mean that the legally represented party is not entitled to the benefit of the rules of court. This, too, is no new subject, as is revealed by observations to this effect made by Samuels JA in Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986), at 27, cited with approval in Nobarani v Mariconte (2018) 265 CLR 236, at [47]. 30 In his various applications, Mr Gambaro alleged that error was to be found in the various lengths of time which had elapsed between when particular interlocutory applications were heard and when they were determined. He also alleged error in the delivery, on the determination of those applications, of reasons for judgment ex tempore with only later written reasons, as revised, being furnished. 31 None of the interlocutory applications entailed the hearing of oral evidence and a need to make assessments of the credibility, or comparative credibility, of witnesses. Sometimes, where there is such a need, the very length of reservation of a judgment can call into question whether any such assessment could reasonably have been made by a judicial officer. That is not this case. Further, the period of reservation was not gross. 32 The giving of reasons for judgment ex tempore, is lawful, indeed to be encouraged where appropriate, as explained in extra-curial observations by Gleeson CJ, recently cited with approval by Steward J (with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed) in at Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 (AAM17), at [30]: Fourthly, the nature of the Federal Circuit Court's jurisdiction also supports the giving of ex tempore reasons which are then published in written form with revisions. As Gleeson CJ, writing extra-curially, has observed: There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance. A lapse of time as between delivery of reasons for judgment ex tempore and their revision and publication as revised is inevitable. The length of that lapse can be relevant in relation to the granting of time within which to appeal or to apply for leave to appeal, as a series of cases in this Court, cited with approval in AAM17, at [35] - [38], illustrate. Here, no lapse was gross but in any event, were the lapse the only factor intruding on whether to grant Mr Gambaro an extension of time, I should, in each instance, readily have granted that extension. 33 The applications in QUD 32 of 2020, QUD 129 of 2020 and QUD 135 of 2020 were each discontinued by Mr Gambaro on 9 December 2020 on terms, by consent, that there be no order as to costs. No further reference need be made to them. It remains necessary only to consider the merits of the application in QUD 41 of 2020. 34 The refusal of the amendment application does concern an issue of practice and procedure, although that refusal was in part informed by an understanding as to a substantive law position by the learned primary judge. 35 The substantive law question was whether a third party might by payment to an employee discharge an employer's obligation to pay an amount of wages owed by that employer to that employee? The learned primary judge considered that a payment so made could lawfully discharge that obligation. His Honour also considered that, even if that were not correct, the price of Mr Gambaro's being able to recover the amount of the wage from the third party might be disgorging the amount already admittedly received by him to the person who had made that payment. His Honour considered that introducing the issue would unnecessarily complicate dealing with the real issues in the proceeding allegedly arising from Mr Gambaro's termination. 36 It is by no means impossible to see how, in a commercial context, one entity in a corporate group might have the role of a service company undertaking, amongst other things, the employment of staff deployed within the group, with another company within the group, acting as group financier, assuming the role, amongst other things, of paying all liabilities incurred by other companies within the group, including the wages obligation of the service company. Other variants which entail the payment by a third party of a wage owed to an employee are readily conceivable, such as the payroll agent example mentioned by the learned primary judge in his reasons for judgment. 37 In Irving M, The Contract of Employment (2nd ed, Lexis Nexis Butterworths, 2019), at 150, para. 3.21 (Irving), the view is expressed that, "Absent agreement to the contrary, under the common law, a third party may satisfy the employer's obligation to pay wages if the payer's intention is to discharge that obligation and the payment is made on behalf of the employer." 38 The authority cited is a statement in McKendrick E, Goode on Commercial Law (4th ed, Lexis Nexis and Penguin Books, 2010 (Goode on Commercial Law), at 500. Regard to the passage cited from this text discloses that it contains a general statement of the author's view as to the position as between debtor and creditor at common law when a debt is paid by a third party: In order for an act of payment to be effective as a pro tanto discharge of the debtor's obligation, certain essential conditions must be fulfilled. The payment must be made by the debtor or by a third party having actual or apparent authority to make it on his behalf. The law does not recognize as effective an unauthorized payment by an officious intervener except where the debtor ratifies this, whether expressly or by freely accepting the benefit of the payment. The payment must not only be tendered by the debtor but accepted by the creditor or his authorized agent. An unaccepted tender does not discharge the debt, though if sued, the debtor can pay the money into court with a plea of tender and recover his costs. Where the tender is accepted by a third party (such as the debtor's bank) on behalf of the debtor, that party must have actual or apparent authority to accept it. [Footnote references omitted] 39 Nothing in what Mr Gambaro put before the learned primary judge suggested that he had done other than "freely accept", at the time, the monies paid to him as his wage. As between whatever entity paid those monies and his employer, if, truly, they were different entities, there may, as between those entities, if different, be a nice question as to whether the payer could recover the monies paid from the employer, a subject raised at a level of general principle in this passage in Goode on Commercial Law. The learned primary judge also mused on this subject in his judgment but, with respect, quite rightly recognised its diverting tendency in the circumstances of the present case, where there was no controversy as between any payer and employer, once again assuming the two were different. As to whether any claim was maintainable as between payer and employer, if different entities, much would depend on whether the payer was, truly, but an officious, gratuitous intervener or whether the employer knew of the prospect of the payment and adopted, or, ratified or elected to take the benefit of it: compare Owen v Tate [1976] QB 402, an authority cited in Goode on Commercial Law and in the passage quoted with Johnston v Arnaboldi [1990] 2 Qd R 138, at 145. 40 Sir Royston Goode CBE, QC, the original author of Goode on Commercial Law, is an eminent British academic whose views on commercial law subjects are additionally informed by lengthy experience in practice. His successor in the authorship of Goode on Commercial Law, is an eminent legal academic of a later generation, Professor Ewan McKendrick QC, Professor of English Private Law at the University of Oxford. So views expressed in the work cited by Irving are entitled to particular respect. The time has long since passed when it was considered inappropriate to have cited judges, or to cite, views expressed in academic works by living authors but such views are nonetheless not to be equated with judicial pronouncements of the state of the law. Even so, Irving's further statement (ibid), "[t]he payment by a third party does not relieve the employer of the liability to pay the wages; it is simply a method by which that liability is satisfied" flows logically from his earlier view and is, with respect, supported by the authorities he cites (at fn 110). 41 Those authorities include Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, at 1019, and Southway Group Ltd v Wolff (1991) 57 BLR 33 (Southway), at 48 and 53. Neither of these cases was an employment law case but each concerned the circumstances in which personal, as opposed to vicarious, performance of a contractual obligation was permissible. In Southway, Bingham LJ (as his Lordship then was) summarised the general position at common law as follows: It is in general permissible for A, who has entered into a contract with B, to assign the benefit of that contract to C. This does not require the consent of B, since in the ordinary way it does not matter to B whether the benefit of the contract is enjoyed by A or by a third party of A's choice such as C. But it is elementary law that A cannot without the consent of B assign the burden of the contract to C, because B has contracted for performance by A and he cannot be required against his will to accept performance by C or anyone other than A. If A wishes to assign the burden of the contract to C he must obtain the consent of B, upon which the contract is novated by the substitution of C for A as a contracting party. It does not, however, follow that in the absence of a novation A must personally perform all the obligations he has assumed under his contract with B. In some classes of contract, as where B commissions A to write a book or paint a picture or teach him to play the violin, it would usually be clear that personal performance by A was required. In other cases, as where A undertakes to repair B's shoes or mend B's watch or drive B to the airport, it may be open to A to perform the contract vicariously by employing the services of C. In this situation the contractual nexus remains unaltered, since A remains liable to B for performance of the contract and no contractual relationship arises between B and C. Whether a given contract requires personal performance by A, or whether (and if so to what extent) A may perform his contractual obligations vicariously, is in my opinion a question of contractual construction. That does not mean that the court is confined to semantic analysis of the written record of the parties' contract, if there is one. Such is not the modern approach to construction of a commercial contract. It means that the court must do its best, by reference to all admissible materials, to make an objective judgment what A and B intended in this regard. Where A and B, perhaps with legal advice, have entered into a long and ambitious written contract, the terms of that contract may well be conclusive or almost so. Where a written contract is short and summary, or the contract is made orally, surrounding circumstances are likely to be of much greater significance: a reliable objective assessment of what the parties intended may well require account to be taken of such matters as the type of contract in question, the state of the market, the commercial position of the respective contracting parties, personal relationships between the main protagonists on each side and matters of that kind. But it is of course the joint intention of the parties which matters, not the secret intention of either, so no account may be taken of matters which may influence the mind of one party but are unknown to the other. 42 Extrapolating this statement by Bingham LJ of the general common law position into the context of a contract of employment, in the ordinary course of events such a contract is not at common law one where personal performance of the employer's obligation to pay the wage owed to an employee is required, but rather one where performance by a third party by making the payment is permissible. A payment so made does not mean that the employer is no longer a party to the contract of employment, much less that the obligation to pay the wage is not that of the employer. All that it means is that the employer's obligation to pay the wage to the employee is discharged by the performance of that obligation by the third party. In my view therefore, the statement of position in Irving is correct. 43 Irving further notes, and the position is, that the extent to which s 323 of the FWA modifies this common law position is "unclear". Subject to the making of such deductions as are permitted by s 324 of the FWA, the effect of s 323(1)(a) of the FWA is that an employer must pay an employee amounts payable to the employee in relation to the performance of work in full. It seems to me that s 323 of the FWA creates a statutory obligation on the part of the employer to make the payment, but has nothing to say about how that obligation may be performed. The payment of the wage by a third party would, in my view, discharge the employer's statutory obligation. 44 Thus, one basis upon which the learned primary judge disallowed this proposed amendment of Mr Gambaro's statement of claim was not obviously wrong in law but more likely unremarkably correct. Further, given that Mr Gambaro conceded that he had been paid the wages concerned, it would indeed have introduced diversionary side winds to the real issue between the parties to allow the amendment. 45 The other proposed but rejected amendment of the statement of claim would have seen the addition of yet another respondent, a seventh respondent. As to this, the learned primary judge, at [11], stated: 11. The proposed seventh respondent was an assistant sales manager at the same organisation at which the applicant was employed. He says that person ought to be joined to these proceedings because they were involved in the employer's breaches of the various Acts that he says were breached by the employer. It is difficult to give an example because the only real pleading against the seventh respondent - or proposed seventh respondent - is that she was a sales manager for the first respondent and was responsible for contraventions of the applicant's general workplace protections. No particularity is given to that. It is also alleged that at material times the seventh respondent was an employee of the first respondent, was a health and safety hazard in the workplace and contravened the applicant's entitlement to a safe workplace and breached the applicant's employment contract with the employer. 46 Very recently, in our joint judgment in Sabapathy v Jetstar Airways [2021] FCAFC 25 (Sabapathy), at [28], Katzmann J and I (with whom Flick J agreed) cited with approval a summary of principles concerning accessorial liability offered by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, at [176] - [178], earlier also cited with approval by Flick and Reeves JJ in Fair Work Ombudsman v Hu [2019] FCAFC 133; 289 IR 240 at [15]. It is not necessary to repeat that summary, only to record that the pleading and proof of actual knowledge of the essential elements of the principle contravention is necessary. We also emphasised in Sabapathy, at [39], the particular need, in a proceeding where civil penalties form part of the relief sought, for precision in pleadings. The proposed amendment of the statement of claim fell well short of the requisite precision needed to ground a claim for accessorial liability on the part of the proposed seventh respondent. The refusal of the amendment evinces no error of principle. It was well within the permissible exercise of the discretion of the learned primary judge. Nothing in the tabulation found in Exhibit 2 alters that position. 47 In these circumstances, there is no sufficient case made out by Mr Gambaro warranting a grant of leave to appeal. It would therefore be futile to grant any extension of time. The application for an extension of time must be dismissed.

Gambaro v Mobycom Mobile Pty Ltd

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Judgment (5 paragraphs)

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Legislation Cited (3)

Cases Cited (11)

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