Ian Bruce Moore v A-Mac Alarms Pty Limited & Anor

CORAM: Marks J; Staff J; Backman J

CATCHWORDS: Application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate - application for recovery of monies under s 365 of the Industrial Relations Act 1996 - principles in relation to applications for leave to appeal considered - relevance of factual findings on the question of leave - leave refused - appeal dismissed - costs

LEGISLATION CITED: Industrial Relations Act 1996

Ahmed Khan T/as Golden Horn Halal Meat Butchery v Prasad [2003] NSWIRComm 183 Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 CASES CITED: Fox v Percy (2003) 214 CLR 118 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380

Appellant: Mr I. Moore, (in person)

First Respondent: LEGAL REPRESENTATIVES: Mr P. Moorhouse, of counsel Solicitors: Chris Delaney & Associates

Second Respondent: Mr R. Warren, of counsel Solicitors: Blake Dawson Waldron

Ian Bruce Moore v A-Mac Alarms Pty Limited and Anor

Application for leave to appeal and appeal against a judgment of Mr Miller, Chief Industrial Magistrate

1 The present proceedings concern an amended application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate Miller, of 20 May 2005. The application before his Honour sought the recovery of moneys under section 365 of the Industrial Relations Act 1996 which the appellant claimed were owed him by both respondents under the Electrical Contracting Industry (State) Award (the Award).

2 The claim for outstanding moneys in part was based on the appellant's contention that while working for the first respondent, A-Mac Alarms Pty Ltd, he should have been paid wages commensurate with a grade 5 electrical worker as defined in clause 4 of the Award. The appellant had been employed by the first respondent during the period 24 February 1998 until 7 May 1999. At first instance his Honour was not satisfied on the evidence before him that the appellant possessed the necessary formal qualifications or had demonstrated that he had the required skills to fall within the classification of a grade 5 electrical worker. 3 The remainder of the claim concerned alleged entitlements during his period of employment with the first respondent to a motor vehicle allowance, a tool allowance, a construction work and special allowance, a disability rates dirty work confined spaces and toxic substance allowance, overtime entitlements, "standing-by" entitlements, payment for rostered days off, outstanding wages, and, annual leave entitlements. In relation to these other claims his Honour found that the appellant had not proven his case to the requisite civil standard. The application was therefore dismissed. 4 The appeal is brought pursuant to s 197 of the Industrial Relations Act 1996. Appeals under that provision require the Full Court to consider whether under s 188 of the Act the matter is appropriate for the grant of leave. Having heard the appellant we have determined to refuse leave in this matter. 5 It is appropriate to refer briefly to some of the principles, which have been established in this jurisdiction governing the grant or refusal of leave to appeal. 6 In Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380, the Full Bench referred to the relevant principles in the following well known passage (at 381, 382):

First, as a Full Bench of this Commission noted in Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s 188(2). These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle.

Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal.

In Caltex Petroleum Pty Ltd v Harmer (unreported, Matter No IRC 2576 of 1999, 16 November 1999), the Full Bench stated:

As to the second matter adverted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same ...

Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s 188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

(See also King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]; Ahmed Khan T/as Golden Horn Halal Meat Butchery v Prasad [2003] NSWIRComm 183 at [11], [12]. 7 The relevance of findings of fact on the question of leave which include credibility findings has been explored in a number of authorities in this jurisdiction. In King v State Bank of New South Wales, for example, the Full Bench (at 54) said:

Having regard to the submissions of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]:

In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 8 Most recently in Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113, the Full Bench said (at [6]):

We do not intend to refer at length to the numerous matters raised by Mr Austin in support of his application for leave. It is sufficient to observe that almost all of the matters appealed against are findings of fact which, in our view, were reasonably open to the trial judge. Not only that; the findings of fact pertaining to the heart of the dispute resulted from Staff J's conclusion that he should not rely on Mr Austin's evidence where it conflicted with the evidence of the witnesses called by the respondents, each of whom his Honour found to be reliable. Findings of this nature were described by Kirby J in State Rail Authority of New South Wales v Earthline Constructions (In Liq) (1999) 160 ALR 588 at [92] as the very limited class of cases where trial judges enjoy true advantages over appellate courts: those cases where the decision depends upon "resolving a clash of critical oral testimony, oath against oath". There is nothing in this case to suggest that Staff J's findings, based on assessments of the credibility of witnesses, manifest "clear, compelling, palpable or plain errors" sufficient to warrant an exception to the rule of appellate restraint in this class of cases (see Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [94] and [97] - [98] per Kirby J). 9 We have made specific reference to the relevance of factual findings on the question of leave because it is apparent to us that what the appellant essentially seeks to challenge in these proceedings are findings of fact made at first instance. The grounds of appeal set out in the amended application assert, for example, that the appellant's services were charged at a qualified technician's call out rate and that the appellant used his own motor vehicle and paid all related costs which therefore entitled him to be reimbursed. The grounds further assert that at all times while in the employ of the first respondent, he performed the duties of a grade 5 electrical worker. The Chief Industrial Magistrate's decision, however, dealt extensively with each factual matter relied upon by the appellant in the amended application. It appears to us, from the reasons given in the decision, that it was reasonably open, on the evidence, for his Honour to make the findings he did. 10 His Honour also made some findings based on a preference for the testimony of a director of the appellant's employer during the relevant period, Mr MacIlveen. For example, in relation to the appellant's claim at first instance for a tool allowance, the appellant had contended that he did not receive one and purchased his own tools. Mr MacIlveen had given evidence that only a small quantity of tools were required for the work performed by the appellant and these were all provided by the employer. His Honour concluded on the basis of this evidence that it was therefore not relevant that the appellant purchased tools beyond what were required for work. In coming to this conclusion, his Honour also placed reliance on the applicable Award. Clause 5 of that Award states that a tool allowance is to be paid for "tools not automatically provided by the employer but which are ordinarily required by the tradesperson or apprentice for the performance of their duties." 11 We see no error in this conclusion. It would seem that, on the evidence before his Honour, such a conclusion was reasonably open. The circumstances in which a finding of fact, at first instance, based on the credibility of witnesses may be set aside upon appeal were examined by the High Court in Fox v Percy (2003) 214 CLR 118 where it was said (at [28]) by the majority (Gleeson CJ, Gummow and Kirby JJ):

...the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

(See also Austin v NF Importers Pty Ltd & Anor loc. cit .) 12 In the proceedings at first instance, we perceive no such incontrovertible facts or uncontested testimony which might otherwise justify interference with his Honour's decision. Nor can we see any basis at law for any claim made by the appellant against the second respondent. 13 In the amended application, the reasons relied upon by the appellant as to why leave should be granted include matters of policy such as the contention that self-represented, unemployed and country litigants are disadvantaged within the legal system because of difficulties in seeking legal advice and the lack of access to legal assistance. The reasons also rely on alleged exploitation of Australian workers by multi-national corporations and the misappropriation of government incentives as matters relevant to the public interest test stated in s 188(2) of the Act. None of these issues is connected however in any way to the appellant's appeal. Nor were such issues sought to be ventilated at first instance although we hasten to add that that alone would not sustain a grant of leave. In any event, in relation to the first policy matter, it is not apparent on the face of the transcript of the hearing at first instance, nor in the decision, that his Honour did not give the appellant a full and fair hearing. There is, therefore, no basis for an assertion that the appellant has suffered a disadvantage because of his unrepresented status. 14 Other reasons put forward as to why leave should be granted in the amended application deal squarely with the factual findings made at first instance, such as the contention that service invoices relied upon by the appellant confirm that he had worked overtime and attended call-outs and therefore was legally entitled to payment. The reasons as to why leave should be granted also assert that two witnesses (including Mr MacIlveen) for the respondent committed perjury and, that acts of a criminal nature against the appellant, including fraud, had received judicial approval at first instance. None of these matters were expanded upon by the appellant in his written or oral submissions. No evidence was sought to be led in support of the allegations. No evidence was led at first instance which might have provided any foundation for the allegations. 15 Nor do the reasons as to why leave should be granted as set out in the amended application or the appellant's submissions in these proceedings, raise any general jurisdictional issue, any excess of jurisdiction, any specific errors of law, or of fact, or any issues of significance for the operation of industrial courts. 16 For all the foregoing reasons we have determined to refuse leave to appeal. 17 Both respondents have sought an order for costs of the appeal. We see no reason why costs should not be awarded. 18 We order:

(3) The appellant is to pay the respondents' costs of the appeal as agreed or in the absence of agreement as assessed.

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.