Sawtell v P. J. Clarke Investments

1. Compliance by the Respondent with r 4.01(2) of the Federal Court Rules 2011 (Cth) is dispensed with pursuant to r 1.34.
2. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FLICK J: 1 The owner/manager of the Ballina Motel, Mr Peter Clarke, provided to Ms Carol Sawtell a Letter of Engagement dated 6 March 2017. That Letter offered casual employment to Ms Sawtell under the Hospitality Industry (General) Award 2010. 2 On 25 October 2017, Ms Sawtell filed an Application in the Federal Circuit Court of Australia commencing an action in which she sought to recover from P.J. Clarke Investments (Qld) Pty Ltd the payment of monies. That Application claimed that Ms Sawtell commenced employment on 2 March 2017 and that her employment was terminated on 16 June 2017 and, further, claimed that the Respondent "paid below the award rates" during the period of employment. That Application quantified the "gross amount outstanding … [as] $31,689.66". On 6 July 2018, Ms Sawtell filed an amended Application. This Application abandoned each of the claims made in the original Application. Ms Sawtell instead filed a Form 5 - Small claim under the Fair Work Act 2009. This document alleged contraventions of s 45 of the Fair Work Act 2009 (Cth) with the "remedy sought" being $20,000. 3 The proceeding was dismissed by a Judge of that Court on 17 July 2018: Sawtell v P.J. Clarke Investments (Qld) Pty Ltd [2018] FCCA 2204. In an ex tempore judgment, the primary Judge referred to "problems" experienced in respect to Ms Sawtell's evidence. That Judge continued (in part) as follows: [6] But perhaps the greatest concern the Court has is the inconsistency between the evidence of Ms Sawtell and the evidence of the two Mr Clarkes, and perhaps even more acutely, the inconsistency that exists between the Applicant's evidence and that in the business records of the Respondent. The business records, in particular, seem to be fairly typical for a small business of this type. They appear to follow quite common procedures, such as, for example, basic documentation evidencing the creation of an employment relationship. In this case, the letter of engagement. [7] The business records as to the hours worked and the payments made appear, once again, reasonable for a small business of this nature. It is possible, the Court acknowledges, that payslips may not have been provided to the Applicant, strictly in accordance with the Act. Perhaps, in reality, they were made available to her in the sense that they were in a known place. But the overall impression created by these records is that the Applicant brings a claim in respect of working hours that vastly exceed the reality. [8] The Applicant's claim was really characterised on the basis that she was a live-in-manager of the Motel and that she oversaw a Motel that had a moderate level of activity in terms of people coming and going. [9] The evidence of the Respondents was starkly different. Moreover, the evidence of the business records is starkly different. It is hard to reconcile the two different versions of what took place. The business records ultimately tip matters in favour of the Respondents. For the Court to have ignored the business records would involve accepting the implied, if not express, contention on behalf of the Applicant that these records were, in effect, fraudulently created for the purposes of these proceedings. The Court is not prepared to make that finding. 4 On 7 August 2018, Ms Sawtell filed in this Court a Notice of Appeal from the Federal Circuit Court ("Notice of Appeal"). The Grounds of Appeal were there set forth as follows: The "Attached notes" refer (inter alia) to the period of time Ms Sawtell maintains that she worked at the Motel; a statement that she is "clear of drugs"; and a reference to bank statements. 5 On 5 September 2018, the Respondent filed a Notice of Objection to Competency. That Notice maintains that Ms Sawtell: "has not pleaded or provided particulars of any alleged errors of law made" by the primary Judge; "has not pleaded or provided particulars of any alleged error of findings of fact" made by the primary Judge; and "is attempting to introduce evidence into the matter which is an abuse of processes of the Court". That Notice also contends that the "Application is vexatious". The Notice of Objection to Competency was prepared by and filed by Mr P. J. Clarke and is stated to be filed on behalf of P. J. Clarke Investments (Qld) Pty Ltd. Mr P.J. A copy of the Notice of Objection to Competency dated 5 September 2018 was also filed, again, later in September 2018 with the same Grounds of Objection. A third Notice of Objection to Competency was filed on 11 March 2019. This Notice is also dated 5 September 2018, however it sets out an additional two grounds of objection, namely that (without alteration): • "The Applicant has attempted to re-litigate this matter in the New South Wales Local Court Lismore. Was dismissed on the 29/11/2018…"; and • "The Applicant failed to comply with Direction to supply the Federal Circuit Court Sydney per orders dated 26/09/2018". 6 The proceeding was referred by the Chief Justice to the Court as presently constituted to consider the Objection to Competency and the manner in which it should be resolved. 7 The matter was listed for interlocutory hearing on 6 March 2019. On that occasion Ms Sawtell did not appear and was not able to be contacted by telephone. Mr Clarke sought to appear for the Respondent. The matter was stood over for hearing to 9.30 on 14 March 2019. The Registry advised Ms Sawtell on 7 March 2018 that her proceeding was stood over to this date and further advised that on that occasion the Court may dismiss the application for reason of non-appearance pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules") . 8 On 14 March 2019, Ms Sawtell again failed to appear and could not be contacted by way of telephone. Although one option open to the Court was to dismiss her appeal by reason of her non-attendance on both 6 and 14 March 2019 pursuant to r 36.75, the course which has been pursued is to proceed to resolve the competency of her appeal and also the merits of any appeal in her absence. 9 Rule 4.01(2) of the Federal Court Rules provides that a "corporation must not proceed in the Court other than by a lawyer". To require the Respondent Corporation to retain legal representation, given the amount of money at stake and the failure on the part of Ms Sawtell to pursue her appeal, would be an unwarranted insistence upon formality. Compliance with r 4.01(2) is dispensed with pursuant to r 1.34. 10 It is concluded that the appeal should be dismissed.