Consideration
19 In my view leave to appeal against the decision of the Federal Circuit Court should be granted. I have formed this view for the following reasons.
20 In respect of the question whether the primary judgment is attended by sufficient doubt to warrant its reconsideration, I note first that there appears to be substance to Mr Parker's claim that he was denied procedural fairness in circumstances where:
The respondents' written submissions were never filed;
This failure was itself in contravention of the orders of the Federal Circuit Court of 5 November 2018;
The primary Judge accepted the respondents' written submissions on the day of the hearing and proceeded to hear the case having regard to those submissions;
The applicant had no opportunity to examine the respondents' written submissions prior to hearing and properly address them;
It is not in dispute that the applicant was unaware - and could have no reason to be aware - that the hard copy version of the respondents' written submissions that he had returned to their Counsel on 5 November 2018 were the same submissions that the respondents would ultimately rely on at the hearing before the primary Judge;
Mr Parker was not legally represented; and
It is not disputed that Mr Parker had raised the issue of contravention of orders by the respondents in respect of their failure to file written submissions, and fairness, before the primary Judge at the hearing.
21 I consider there to be a reasonably arguable case that the likelihood of prejudice to Mr Parker in those circumstances was high, noting in particular that Mr Parker was a litigant in person who had complied with the Court's directions and had every reason to expect that the Federal Circuit Court would require the respondents to similarly comply.
22 Second, while his Honour refers in detail in the primary judgment to authorities and legal principles relevant to a determination of whether an employment relationship exists, I consider that Mr Parker has a reasonably arguable case that the primary Judge did not have regard to Mr Parker's evidence and/or written submissions supporting Mr Parker's claim of an employment relationship with one or more of the respondents. The mere absence of reference by the Court to evidence or issues raised by a party does not necessarily mean that the Court has failed to have regard to that evidence or those issues: I note for example the following observations of the Court of Appeal of New South Wales in Housing Commission of New South Wales v Tatmar Pastoral Company Pty Ltd [1983] 3 NSWLR 378 at [385]-[386]:
In order to determine this submission, it is necessary to consider what is the duty of a judge in this regard and whether the learned judge, in this case, discharged that duty.
There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law…
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex F parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.
23 I note that the decision of the Court of Appeal was upheld by the Privy Council in Tatmar Pastoral Company Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155.
24 (See also IFTC Broking Services Ltd v Commissioner of Taxation [2010] FCAFC 22 at [4] and M Beazley, P Vout and S Fitzgerald Appeals and Appellate Courts in Australia and New Zealand (Lexis Nexis, 2014) [5.26])
25 However in circumstances where the applicant has filed submissions and extensive evidence to which there appears to be no reference by the primary Judge, a question arises as to whether the primary Judge has had regard to them. In this case I note in particular paragraph 7 of the primary decision, where his Honour notes that the:
…documentary evidence adduced on behalf of the respondents in the affidavit of Michael Gleeson filed on 4 October 2018 paints a different picture to that asserted by the applicant.
(Emphasis added.)
26 His Honour proceeds to list a large number of documents, being exhibits attached to Mr Gleeson's affidavit of 4 October 2018. However it is not clear from his Honour's judgment that regard has been had to the material filed by Mr Parker, and his Honour does not identify the "different picture" asserted by Mr Parker. So, for example, Mr Parker relied on an email of 17 November 2017 in which he referred to "why I thought I was hired" and "my future employment". Similarly, it is unclear how his Honour reconciled the position of Mr Parker as "General Manager" with a contract of services. The fact that his Honour only refers, in detail, to evidence of the respondents in finding that Mr Parker's claims were "a contrivance" potentially supports a finding that his Honour had not considered Mr Parker's evidence or submissions.
27 Third, I am satisfied that there is a reasonably arguable case that his Honour erred at [12] of the primary judgment in finding that "costs ought properly follow the event". No reference was made by his Honour to s 570 of the Fair Work Act which provides:
Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569.
Note: The Commonwealth might be ordered to pay costs under section 569.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before FWA;
(ii) the matter arose from the same facts as the proceedings.
28 Counsel for the respondents submitted that the costs order of his Honour was supported by [9] of the primary judgment, which provided:
It is a question of fact, in any given situation, whether a person is an employee or a contractor. In this case, the applicant, during the entirety of his period of engagement with the respondents, either made it clear that he was content to be regarded as a contractor, or actively promoted himself as an independent contractor. He was damned by his own words in that regard. His claims to the contrary are a contrivance. His whole engagement was in the nature of the provision by him of services as part of a personal services business.
(emphasis added)
29 In particular, the respondents submit that the finding of his Honour that Mr Parker's claims were a contrivance meant that his Honour found in the respondents' favour in accordance with s 570 (2).
30 Section 570 of the Fair Work Act is clear in its limitation of cases where an unsuccessful applicant in Fair Work proceedings is required to pay costs. As Mortimer J explained in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64]-[68], and in particular at in Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276 at [23]:
23. …the discretion in s 570 (2) should be exercised cautiously and the case for its exercise should be clear, in part to avoid discouraging parties from completely and robustly pursuing claims of contravention under the Fair Work Act, or in equally robustly pursuing their defence of such claims. However, I also observed that s 570 was an access to justice provision in the sense that the ordinary position would be that parties may pursue these claims without the apprehension of adverse costs orders if they are unsuccessful.
31 In the primary judgment there is no identification by his Honour of s 570, and no examination by his Honour as to whether the applicant had commenced the present proceedings vexatiously or without reasonable cause, or whether an unreasonable act or omission of Mr Parker caused the respondents to incur costs. His Honour's finding of a "contrivance" on Mr Parker's part in paragraph [9] of the primary judgment does not necessarily mean that his Honour considered costs should be ordered against Mr Parker pursuant to s 570 (2) of the Fair Work Act, particularly in circumstances where there is no material before me indicating that the respondents had sought such costs or that his Honour had specifically had regard to s 570. I consider it reasonably arguable that his Honour did not direct his mind to s 570, but rather ordered costs to "follow the event" as is usual in litigation other than Fair Work proceedings.
32 In conclusion I consider that Mr Parker has advanced a reasonable argument that the decision of the primary Judge is affected by appellable errors. In circumstances where the effect of the primary judgment is not only to terminate Mr Parker's application in the Federal Circuit Court, but also to order costs against him contrary to s 570 of the Fair Work Act, I consider that Mr Parker would suffer substantial injustice if leave were refused, supposing the decision of his Honour to be wrong.
33 The appropriate order is to grant leave to appeal. I will hear the parties in respect of further case management orders to take this matter to appeal.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.