Penttila v Woolworths Limited

introduction 1 The appellant seeks an extension of time in which to seek leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) handed down on 29 June 2022, which dismissed two summary judgment applications and the substantive application brought by the appellant: Penttila v Woolworths Ltd [2022] FedCFamC2G 480. The substantive issue before the primary judge was whether the appellant was underpaid by the respondent throughout the duration of his employment. 2 The appellant was employed by the respondent on a part-time basis (Level 2 console operator) between 17 January 2014 - 30 November 2015 (First Employment Period), and on a full-time basis (Assistant Store Manager) from 30 November 2015 - 15 June 2017 (Second Employment Period). The appellant's employment was terminated from 15 June 2017, and he was paid four weeks' pay in lieu of notice and all accrued entitlements. On 5 February 2020, shortly after filing the application with the FCFCOA, the appellant was paid the sum of $5,024.64 by the respondent for underpayments arising during the course of his employment with the respondent. 3 On 3 February 2020, the appellant filed an originating application with the FCFCOA. The appellant contended before the primary judge that he was underpaid by the respondent throughout the course of his employment in breach of the Fair Work Act 2009 (Cth), including by: (a) Not paying him overtime and public holiday rates during his First Employment Period in accordance with the Woolworths Petro Enterprise Agreement 2012 (Enterprise Agreement); (b) Not paying him in accordance with the Enterprise Agreement during his Second Employment Period; and (c) Not doubling his annual salary during the Second Employment Period. 4 The appellant's employment was terminated for serious misconduct upon which he was paid time in lieu of notice (as set out above). He argued that his termination was void due to such payment and therefore that he was entitled to an additional 6 months' worth of salary. 5 On 9 December 2021, the appellant filed an application seeking summary judgment against the respondent on the grounds that they had no reasonable prospects of successfully defending the proceeding, and that it had failed to dispute facts or documents referred to in two notices to admit facts. 6 On 9 April 2022, the appellant filed a further application seeking default judgement against the respondent based upon the summary judgment application filed on 9 December 2022, and security for costs incurred during the proceedings. 7 On 29 June 2022, the primary judge dismissed the summary judgment application, the default judgment application and the originating application. 8 For the reasons given below, the extension of time in which to seek leave to appeal is granted. Leave to appeal is refused, and the application is dismissed.

REASONS OF THE PRIMARY JUDGE 9 The primary judge set out the basis for the appellant's claim, being that he contended that he was eligible to be paid the applicable rates under Clause 5 of the Enterprise Agreement for additional hours that were worked during the First Employment Period, and for the duration of the Second Employment Period. The primary judge referred to two affidavits filed by the appellant on 10 March 2020 and 4 June 2021 respectively. They each annexed a number of documents and indices in respect of them. The respondent initially objected to a number of the annexures on the basis that they were summaries of other documents made by the appellant but ultimately the respondent withdrew those objections on the basis that that the summaries could be treated as part of the appellant's evidence in chief. 10 Before the primary judge the respondent relied upon a payment schedule which the primary judge at [18] inferred "as having been generated from a conciliation of punch in and punch out time records". The term "punch in and punch out time records" is used by the respondent to describe its system for recording the start and finish times for part-time employees. At [17] the primary judge, with respect to the admission of business records into evidence, adopted the reasoning of Collier J in Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No 4) [2011] FCA 578; 194 FCR 479 at [14]. His Honour, having heard from the respondent's witnesses, including a Culture and People partner employed by the respondent at the time, inferred that the payment schedules were "authentic" pursuant to s 183 of the Evidence Act 1995 (Cth). 11 The primary judge set out the evidence of the witnesses at the hearing, including that provided by the appellant under cross examination, during which he admitted that throughout the First Employment Period he voluntarily worked different hours from those originally identified as his rostered working hours. 12 The primary judge found at [20] that as the appellant worked additional and different shifts voluntarily, he was entitled to be paid "at the appropriate part-time ordinary rates of pay, inclusive of any additional loadings and provisions provided in the clauses in paragraph 7.3.5(c) [of the Enterprise Agreement] applicable to such hours". His Honour accepted the respondent's submissions with respect to the application of the Enterprise Agreement to the appellant's circumstances during the first employment period. In summary, the primary judge was satisfied that the appellant was not underpaid during his First Employment Period as the Enterprise Agreement operated such that an employee in the appellant's situation was not entitled to overtime payment for additional hours to which they voluntarily agreed. 13 The primary judge correctly set out the evidentiary standard applicable to the matter was as to the balance of probabilities in accordance with s 140 of the Evidence Act and referred to by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 - 362. The primary judge held that the appellant failed to put his case to the respondent's witnesses under cross-examination and failed to positively adduce evidence in support of his allegations. Accordingly, the primary judge found that the appellant's claim for underpayment during the First Employment Period had not been proved on the balance of probabilities and dismissed the claim. 14 With respect to the Second Employment Period, the primary judge found that the appellant entered into a contract for this period of his employment. His Honour found, as a matter of construction, that the provisions of the Enterprise Agreement did not form part of the contract with respect to this period. The primary judge noted that the appellant agreed that he entered into a contract, and held that any claim that the Enterprise Agreement overrode the contract is misconceived. The primary judge was not satisfied that the appellant was underpaid, held that the appellant failed to prove his case on the balance of probabilities, and dismissed the claim. 15 As the primary judge found that the appellant's claims were without merit, the applications were dismissed.

appeal before this court 16 The amended draft notice of appeal contains 32 grounds under the heading 'Grounds of Appeal': a. Trial Opening - Leading question to adduce evidence via Opinion Evidence from Appellant. b. Summary Documents deemed as Evidence from maker, supported by verified Evidence. c. Closing Statement inducing Notice to admit of relevant Evidence Material d. Courts Discretion regarding Notice to Dispute, accepting without Notice. e. Respondents' opportunity to make objection to Notices given. f. Evidence examination exemption of Appellant via Notice given at closing statement g. Failure of Notice by Respondent, of any form to evidence. h. No pleaded intention to rely on witnesses of maker in Defence i. Respondent irrelevance of chief affidavit of witnesses to Appellant. j. Reckless adducing of evidence to Appellant by hearsay, with no exemption of notice. k. Cross examination and re-examination of via particular style only. l. Inferred Respondent records deemed unreliable via its post-modification m. Maker of evidence, records' not in chief position of Respondent as deponent. n. Testing where balance of probabilities are, as the minimum threshold to enable defence. o. Appellants constructive need to seek on valid witnesses of Respondent for deposition p. Business Records not deemed as evidence, especially where under dispute. q. Timesheet Records are regulatory documents, weighted protected evidence r. Summary Records of Appellant under valid presumption being verified as tendered s. Courts disallowance of associated evidence against protected regulatory evidence t. Protection under condition via refusal to verify a protected regulatory evidence u. No right of defence of company via self-incrimination within proceeding. v. Civil contraventions against Respondent upgraded to serious in nature. w. Costs deemed unlawful between Respondents within proceeding x. Judge superficial acceptance of Respondents position in matter y. Judge acceptance by tempering of lawful protected document z. Judge only adducing of Appellants evidence, modified payslips, for Respondents benefit aa. Judge acceptance of contravention, least to breach National Employment Standards ab. Judge discretionary abuse for efficiency in resolving matter ac. Judge vacating court prior to hearing Summary Judgment Application ad. Judge acceptance of late submissions to Summary Application's as surprise to Trial ae. Refusal by Respondent to make Response to an Application in a Case, in the interim to submission af. Courts' non-recognition of late submissions after Courts Book submission (Errors in original) 17 As became clear from the appellant's written submissions and his oral evidence, the appellant primarily took issue with the business records of the respondent being admitted into evidence. The other issues articulated by the appellant appear to relate to a complaint that there was a lack of procedural fairness in the hearing before the primary judge. The appellant also submitted that the primary judge incorrectly applied the Briginshaw test. Otherwise he took exception to the primary judge's findings of fact. 18 The following relief is sought by the appellant: a. Court makes judgement in support of the Application for Summary Judgement filed 9 December 2022, or b. Court makes judgement in support of the ex-parte Application for Summary Judgement filed 9 April 2022, or c. Court makes judgement in favour of the Appellant for Relief Sought within Statement of Claim, plus interest as described within Trial Arguments. d. Court to institute re-trial in assessing civil remedy contraventions. (Errors in original) 19 The appellant filed submissions in support of his application which are, with respect, difficult to follow. Once the Court received these submissions, a case management hearing was convened on 3 May 2023 during which the possibility of issuing a referral certificate for pro-bono legal assistance in accordance with rule 4.12 of the Federal Court Rules 2011 (Cth) was raised. However, as the appellant failed to file evidence regarding his financial situation a referral for pro-bono legal assistance was not made. 20 The extension of time for leave to appeal and the appeal were heard concurrently on 25 May 2023.

extension of time and leave to appeal 21 Pursuant to s 24(1A) of the Federal Court of Australia Act (Cth), a party must seek leave to appeal from an interlocutory judgment. Rule 35.13 of the Rules provides that a party must seek leave to appeal within 14 days after the date on which judgment is handed down. If an appeal is brought outside that timeframe, the party must seek an extension of time pursuant to r 35.14 of the Rules. The primary judge handed down judgment with respect to the appellant's interlocutory applications and substantive application on 29 June 2022, and the appellant lodged his application for an extension of time for leave to appeal on 8 August 2022. 22 The principles guiding the Court's discretion to grant an extension of time are well established. Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 174; 3 FCR 344 at 348 set out the guiding principles, including the length of delay, the adequacy of the explanation offered for the delay, the prejudice to the respondent if an extension were granted and the merit of the substantive application. Allsop CJ, Markovic, Derrington, Colvin and Anastassiou JJ in Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi [2021] FCAFC 144; 286 FCR 556 applied the principles in Hunter Valley and further added at [40]-[41]: In most instances the Court undertakes a rough and ready assessment of the merits in considering whether to grant leave. It does so for the reasons explained in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516. However, the degree to which there is close consideration of the merits will depend on the circumstances… Leave to appeal will only be granted where an appellant can demonstrate that the orders in question are attended by sufficient doubt that reconsideration on appeal is warranted and that substantial injustice would result if the orders were left uncorrected: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397. 23 Here, the length of the delay is not insignificant. 24 The respondent made no submissions as to whether it would suffer prejudice if the extension of time were granted. I consider that no prejudice would be suffered. 25 The appellant's explanation for delay as to why leave should be granted is provided in his affidavit filed on 8 August 2022, and were reiterated throughout his oral submissions. The reasons include that the appellant was experiencing a housing crisis and was transitioning between one home and another at the time after the hearing below. He explained that he had to relocate to the family home, and subsequently forfeited employment due to the transition. The appellant stated that he was seeking to secure a better financial position before proceeding with the appeal. I consider the appellant's reasons for delay weigh in favour of granting an extension of time. 26 With respect to leave to appeal, the appellant submitted that he has raised "gross injustice" through his grounds of appeal which demonstrate "strong merit". In making an assessment of the merits of the grounds of appeal in order to determine whether the extension of time for leave to appeal should be granted it is important to understand the role of the appellate court pursuant to s 24 of the Federal Court Act. In Lee v Lee [2019] HCA 28; 266 CLR 129, the majority of the High Court (Bell, Gageler, Nettle and Edelman JJ) said at [55]: A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. … (Footnotes omitted)

merit in draft grounds of appeal 27 The appellant's main argument was that the primary judge erred in allowing the respondent's business records into evidence. He submitted that the respondent was required to prove the authenticity of the documents, and appeared to argue that the inference made by the primary judge pursuant to s 183 of the Evidence Act was incorrect. The appellant did not consider that Aqua-Marine Marketing applied to his case. He also made allegations that the punch data entries upon which the business records were based had been tampered with or altered, thereby changing the dates or times recorded for work undertaken. 28 There is simply no merit in this argument. While it is true that the party tendering the document must prove its authenticity, this may be proved by evidence given by a person involved in the conduct of the business if that person either compiled the document, found it in the business records or recognises it as a record of the business: Australian Securities and Investments Commission (ASIC) v Rich [2005] NSWSC 417; 216 ALR 320 (Austin J) at [98]-[99]. This is exactly what occurred before the primary judge. A witness employed by the respondent, Mr Bill Andrews, provided an affidavit that included as to how the business records were generated and attested to their accuracy. That evidence was accepted by the primary judge. 29 The appellant submitted that the primary judge erred in his application of Briginshaw, on the basis that that case concerned a matter before a tribunal which has a different standard of evidence. The appellant submitted that this test was used for the benefit of the respondent. The primary judge referred to Briginshaw in the context of the principles relating to the balance of probabilities. As this matter arose in the civil jurisdiction, the balance of probabilities is the test applied when reaching a state of satisfaction. The appellant has not demonstrated that this argument is reasonably arguable. 30 The appellant submitted that the respondent had failed to respond to two notices to admit documents in the proceedings below. He submitted that the respondent did not raise "notices of disputes" in relation to the documents. He submitted that the notice to admit compared his evidence with the respondent's evidence and by not responding, the respondent denied the "factual elements of the time sheets". With respect, this line of argument was difficult to follow. It was unclear what argument the appellant was seeking to advance. In any event, and consistently with how this issue was dealt with by the primary judge, the respondent took the Court to its responses to the notices thus demonstrating that the respondent had in fact responded to the notices. As such, nothing arises from this argument. 31 The appellant raised other arguments which related to the conduct of the hearing, and can be categorised as procedural fairness arguments. The appellant submitted that the primary judge did not properly consider the competing arguments of the parties, that the employment records he created were not accepted in the decision despite the primary judge saying he would admit them into evidence, and that his pleadings were "skipped over". These arguments are wholly unparticularised. It is unclear what specific arguments the appellant asserts the primary judge failed to consider. The documents prepared by the appellant comprised a mixture of evidence and submissions. The primary judge quite properly assisted the appellant as a self-represented litigant by receiving those parts which were evidence during his evidence in chief. His Honour then evaluated the evidence and preferred that of the respondent. There is also nothing to suggest that the primary judge had no regard to the appellant's submissions. A review of the transcript of the hearing before the primary judge shows that the appellant was provided ample time and opportunity to make submissions and question witnesses. 32 The appellant asserted that he was denied the opportunity to open his case. The primary judge did not require an opening as the appellant had provided submissions. The appellant also asserted that he was taken by surprise by the tendering of the respondent's schedule of payments referred to above. As was clear from the transcript of the hearing before the primary judge, those schedules of payments were included in the respondent's submissions which were filed on 24 January 2022 more than five months prior to the hearing below. 33 The arguments in relation to procedural fairness can be boiled down to complaints that stem from the appellant's dissatisfaction with the outcome of his matter, rather than any appealable error made by the primary judge.

conclusion 34 While there is no prejudice to the respondent in granting an extension of time, and I regard the appellant's reasons for delay compelling, I am not satisfied that there is any merit in his grounds of appeal. The appellant has failed to establish that any of his grounds are reasonably arguable. In saying that, I appreciate that the appellant was self-represented throughout the proceeding and made his best attempt to argue his case. 35 Accordingly, the application for extension of time for leave to appeal is granted. Leave to appeal is refused, and the application is dismissed. The appellant must pay the respondent's costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.