Tu v Utting

Industrial Relations Commission (NSW)|1990-06-22|Before: Wright J, Hungerford J

CITATION: Tu v Utting [2006] NSWIRComm 330

APPELLANT: John Hsiao-Kong Tu PARTIES: RESPONDENT: Douglas Utting

CATCHWORDS: Appeal - Recovery of monies payable under industrial instrument - Appeal from Chief Industrial Magistrate's court - Small claims proceedings - Appeal struck out for want of prosecution - Application to reinstate appeal - Principles to be applied - Decision of Chief Industrial Magistrate - Whether findings reasonably open at first instance - Relevance of leave to appeal - Application refused.

LEGISLATION CITED: Industrial Relations Act 1996 s 8 s 188 s 197 s 364 s 379

Cavacuiti and Another v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247 Famonselle Pty Limited v Nairne (unreported, Hungerford J, 22 June 1990) CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Perrott v Xcellenet Australia Limted and Others (1998) 84 IR 255 Tadic v Beslic [2001] NSWIRComm 107 Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436

APPELLANT: Mr R Berry Atkinson Vinden Heazlewoods, Lawyers Chatswood LEGAL REPRESENTATIVES: RESPONDENT: Mr H C Stathis H C Stathis & Co, Solicitors Liverpool

Application by John Hsiao-Kong Tu for leave to appeal and appeal against the decision of Chief Industrial Magistrate Hart given on 1 July 2005 in Matter No 124144/05

1 These proceedings relate to an appeal from a decision of the Chief Industrial Magistrate of 1 July 2005 in which his Honour granted an application by the respondent for payment of unpaid remuneration under an industrial instrument and made an award in his favour of $4,417.36. 2 The proceedings in the Chief Industrial Magistrate's court had been dealt with in the small claims jurisdiction of that court which relates to applications for recovery of sums totalling less than $10,000. The provision applicable to such proceedings is s 379 of the Industrial Relations Act 1996, the relevant terms of which are: 379 Small claims procedure

(1) A person who makes an application to an industrial court for an order under this Part may request that the application be dealt with under this section.

(2) An application that the industrial court decides to deal with under this section is called a small claims application.

(3) The maximum amount that the industrial court may order an employer to pay on a small claims application in respect of any one employee is: (a) except as provided by paragraph (b) $10,000, or

(b) if some other amount is prescribed by the regulations for the purposes of this section that other amount. (4) The industrial court is not bound by the rules of evidence when dealing with a small claims application, but may inform itself of any matter in such manner as the court thinks fit.

(5) A party to proceedings on a small claims application may be represented by an agent, but is not entitled to be represented by an agent who is a practising legal practitioner unless the industrial court so approves. That approval is not to be given unless: (a) all parties to the proceedings agree, and

(b) the industrial court is satisfied that the parties (other than the party who applies for approval) or any of them will not be disadvantaged. (6) …

(8) A contravention of subsections (5) - (7) does not invalidate the proceedings or any order made in those proceedings. 3 Section 379 is to be found in Part 2 of Chapter 7 of the statute. Part 2 is entitled "Recovery of Remuneration and other Amounts" and also contains s 365. The latter section provides that an industrial court may on application order that an employer pay to the person to whom it is payable any amount payable under an industrial instrument that remains unpaid. The expression "industrial court" is defined to relevantly include the Chief Industrial Magistrate's court and the expression "industrial instrument" is defined to include (see ss 8 and 364(2) of the Industrial Relations Act) inter alia, a contract determination or the Annual Holidays Act 1944. 4 The respondent's claims in the Chief Industrial Magistrate's Court related to pro-rata annual holidays and sick leave under the relevant industrial instrument. He was, however, unsuccessful as to the sick leave claim so that the appeal deals only with the annual leave claim. Although some of the documentation in the Chief Industrial Magistrate's court appears to refer to the relevant claim as being brought pursuant to the Annual Holidays Act, it is clear that it was dealt with on the basis that it was a claim brought for recovery of monies due under cl 19, Annual Leave, of the Taxi Industry (Contract Drivers) Contract Determination. 5 It is particularly relevant to note that the proceedings before the Chief Industrial Magistrate were dealt with having regard to s 379(4) which provides that the Court dealing with the matter is not bound by the rules of evidence but may inform itself of any matter in such manner as the Court thinks fit. 6 The proceedings have had a chequered history in this jurisdiction after the appeal was lodged. The proceedings first came before Staff J on 8 August 2005. At that time his Honour granted a stay of the order made by the Chief Industrial Magistrate on terms which included the appellant paying the respondent, within 14 days, 50 per cent of the amount awarded at first instance with the balance to be deposited by the appellant in an appropriate interest bearing account. 7 Subsequently a Full Bench was constituted to deal with the matter and it was listed for hearing on 20 February 2006 having regard to the fact that when the proceedings were before Staff J, his Honour had made directions for the filing of appeal books, submissions, etc in preparation for the hearing of the appeal. 8 Because of the failure of the appellant to comply with the terms of the stay the respondent applied for the matter to be relisted. The matter then came before me on 17 November 2005 and supplementary orders were made in respect of the stay in an attempt to have the appellant comply with the terms of the stay earlier made. The matter was stood over for directions at 9.30am on 5 December 2005. As there was no appearance at that time for the appellant although there was an appearance for the respondent, the matter was referred to a Full Bench of the Court and the Full Bench made orders on the application of the respondent that the appeal be dismissed for want of prosecution pursuant to rule 146(a) of the Industrial Relations Commission Rules 1996. 9 The Full Bench, largely as a matter of abundant precaution ordered that the order dismissing the appeal be stayed for 14 days and provided that the appellant "may within that time file an affidavit explaining why he has not complied with the orders made in these proceedings and why he is not here today. If no such affidavit is filed the appeal will be dismissed. If, however, such a document is filed a relisting of the matter will be considered." 10 Although a document was filed on behalf of the appellant by 19 December 2005, apparently because of the law vacation it was not attached to the relevant file until some time after that date. 11 After further correspondence between the Registry and the parties and a number of adjournments and relistings at the request of the parties the matter came again before the Court on 16 June 2006 at which time directions were made in respect of the application made by the appellant that the appeal be reinstated. 12 Pursuant to directions then given the parties then exchanged written submissions on the issue on the basis that the Court would decide the matter on the papers; the last of those submissions being filed on 17 July 2006. 13 Before turning to those submissions, reference should be made to the relevant statutory provisions (in addition to those already referred to) and the relevant principles to be applied. The appeal is brought pursuant to s 197 of the Industrial Relations Act 1996 but by virtue of s 188 appeals under the relevant Part of the statute (Part 7 of Chapter 4, which includes s 197) may be made only by leave and the grant of leave is a serious matter; certainly, leave will not be granted automatically or lightly and the prospects of the appellant obtaining leave to appeal is a significant consideration in matters such as the present: see, for example, Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, Perrott v Xcellenet Australia Limited and Others (1998) 84 IR 255 and Cavacuiti and Another v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247 at 269. In the present case where the proceedings at first instance were dealt with pursuant to the small claims jurisdiction of the industrial magistrates' court with its attendant emphasis on limited technicality, relaxation of the rules of evidence and a limited role for legal representation, the hurdles to the ready grant of leave to appeal would be, prima facie, of some significance. The question then whether the application by the appellant is granted becomes one where the Court must be satisfied whether, having regard to the relevant elements of the statutory scheme, it is necessary to grant the appellant's application to do justice between the parties and to ensure the proper administration of justice: Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at [33]; Tadic v Beslic [2001] NSWIRComm 107 at [22]. 14 Further, the application should not be granted if, to do so, would result in the hearing of an appeal which was unlikely to be successful or which had little prospect of being granted leave to appeal. Certainly, it is appropriate to assess the strength of the appellant's case and its likelihood of obtaining leave to appeal: Famonselle Pty Limited v Nairne (unreported, Hungerford J, 22 June 1990); Tadic v Beslic; Cavacuiti. 15 The appellant, in advancing his case that his appeal be returned to the list, says that it is important not only to him and his business in which he holds some nine taxi plates and employs, at any time, between 30 and 40 taxi drivers, but he also stresses there is the importance generally to the taxi industry of the interpretation of the relevant Contract Determination in respect of annual leave entitlements. 16 Similar emphasis is placed on the public interest in this Court ensuring that decisions of the Chief Industrial Magistrate reflect the evidence before that court and that a decision of the Chief Industrial Magistrate not be allowed to stand which relies on matters "not demonstrated in evidence". 17 The appellant submits that the questions raised by this appeal are: 1. In what circumstances is annual leave payable under the Taxi Industry (Contract Drivers) Contract Determination, Consolidated Award 1984? 2. Is the reference in Clause 19 of the Award to the taking of cabs "from bailor for a period of 12 months" to be interpreted as the taking of taxis owned or leased by the one bailor, or may include instances where the bailee drives taxis owned by other taxi owners by way of arrangements facilitated by the original bailor? 3. Can principles analogous to the employment relationship (such as direction and control) be applied to a bailee's entitlement to annual leave under the Taxi Industry (Contract Drivers) Contract Determination, Consolidated Award 1984? 4. Does a bailee taxi driver have entitlements under the Annual Holidays Act 1944 (NSW)? 18 It is further submitted that the Chief Industrial Magistrate erred in law and in fact in a number of respects in finding the respondent as a bailee was entitled to annual leave. For example, that there was error in taking into account shifts when the respondent was not driving a cab that was actually owned by the appellant contrary to the requirement under Clause 19 that the requisite number of shifts should be calculated only by reference to where the bailee "has taken taxi cabs on bailment as a permanent bailee from the one bailor ..."

And further error because: (a) in material relied upon by the bailee he asserted that between 14 July 2003 and 5 November 2004 (a period of 15 months and 3 weeks), he did a total number of 318 shifts. On the evidence from the Ministry of Transport and the bailee's own calculations, he can only demonstrate that he took taxi cabs on bailment from the Appellant for 194 shifts over such period. This falls well short of the requisite 230 shifts to qualify for annual leave. Further, as set out in paragraph 10 of the Appellant's statement dated 29 June 2005, even if all shifts reported were for taxis owned by the Appellant (which is denied and contrary to the evidence), the Appellant only performed 223 day shifts in the period 14 July 2003 - 13 July 2004 and therefore could not, on any basis, be entitled to annual leave as claimed. Again, the Appellant says an error of law was made in finding an entitlement to annual leave in such circumstances; and

(b) the Appellant submits that the Chief Industrial Magistrate erred in applying principles of employment to a bailment situation. It is submitted that the entitlement of a bailee to annual leave arise does not out of the provisions of the Annual Holidays Act 1944, as a bailment is different to a contract of employment, and the driver was not an employee to which the Annual Holidays Act should be applied. 19 The respondent's approach is somewhat more straightforward. He says that he worked for the appellant from 15 July 2003 to 5 November 2004 and during that period he worked a total of 318 day shifts; all shifts were arranged by the appellant; and the respondent was not aware whether the appellant owned the particular taxi or not or what relationship he had with any other taxi operator or owner, if any. Reference is also made to the respondent acting on the appellant's directions as to where to pick up the taxi, where the keys were to be found and as to the return of the taxi at the end of the shift. Emphasis is placed on all "payins" being to the appellant himself and no other person, except, on some occasions, to the appellant's wife at the appellant's residence. "Payins" were originally, for approximately six to eight weeks, made daily and then at the appellant's direction, on a weekly basis. The respondent's contentions conclude on this note: During the period in which I drove for the Appellant, I was aware that he operated several other vehicles, which I estimate at between 7 to 10. This information I obtained from other drivers employed by the Appellant. I was not aware of the particulars of the vehicles which were operated by the Appellant, that is, their ownership details, as I was informed by the base supervisor that that information was confidential, and was covered by the Privacy Act. The Appellant provided to me all direction regarding the use of the taxi vehicles in my control. On occasions when there were problems with the vehicle, I would ring the Appellant, and he would direct me as to where I was to take the vehicle for repairs. 20 In his reply the appellant emphasises that the period the respondent worked for him was one year, three months and three weeks. He also emphasises that the evidence in his statement before the Chief Industrial Magistrate was: In a very few occasions, I did not have enough taxis. I gave Mr Utting an early notices and sometimes, other operators phone number and organised taxis for him to cover those days work (Please see copy of Mr Utting's hand written notice which he gave to me in front of this court on 8th June 2005).

Those operators run separate business from me and I only know them from the Taxis Combined Services network. In most time, Mr Utting paid their pay-in directly and only once he asked me transfer pay-in on his behalf. I do not make any money over those pay-ins. However, those operators told me that Mr Utting again did not pay them pay-in as they requested either. I hardly find any Taxi for him since (Please see letter from other operators).

and that the respondent did not provide any evidence to contradict his explanation. 21 The appellant also places significant reliance on that part of the respondent's submission in which the respondent says that he was unaware whether the appellant owned the taxi or what arrangement (if any) he had with other taxi operators or owners. The appellant says that this absence of knowledge shows that the respondent thus cannot be relied on to provide evidence or assistance in respect of this important matter (that is, important to the appellant's case) and the Court should therefore accept the appellant's position on this aspect. 22 The appellant's reply concludes: In relation to paragraph 8 of the Response, the Appellant says that the Respondent drove the taxi in the ordinary way that any bailee of a taxi would drive it. That is to say, the bailee was entirely free to operate the taxi as he saw fit during any shift, including deciding where he would drive the taxi and who he conveyed in the taxi. The Appellant's dealings with the Respondent with respect to the taxi was merely administrative and did not involve any direction as to how the bailee was to drive the taxi. The Appellant therefore submits that it would be entirely contrary to the facts for the Respondent to be deemed an employee or for his entitlements to annual leave to be determined as if he were an employee in the terms required under the Annual Holidays Act 1944. Consideration

23 The extempore decision of the Chief Industrial Magistrate as to annual leave was in these terms (emphasis supplied): HIS HONOUR: Very well, I propose to hand down my decision now in this matter. I have been assisted by the submissions of both the applicant and the respondent and I've carefully considered all the documents that have been handed up in support of the applicant's claim and also in support of the case submitted by Mr Tu, the respondent.

On the basis of the material before me I am satisfied that the applicant is entitled to annual leave. I am satisfied that when the applicant was not driving a cab that was actually owned by the respondent he was still working at the direction of the respondent and in accordance with arrangements made by the respondent with other owners of drivers ( sic ).

In those circumstances I find that the applicant was entitled to receive annual holiday pay as claimed in the application, that is in respect of the period 14 July 2003 to 13 July 2004 in the sum of $3,031.35 for annual leave entitlements. In relation to the period from 14 July 2004 to 5 November 2004 I find the applicant is entitled to pro rata holiday pay in the sum of $1,080.68.

Now in relation to the successful claim for holiday pay I notice that the termination of employment occurred in November 2004. CONSEQUENTLY, THERE WILL BE A PAYMENT FOR INTEREST FROM NOVEMBER 2004 TO TODAY'S DATE AND THAT FIGURE WILL BE AVAILABLE SHORTLY.

Sorry, I will give you the details, shortly. The total holiday pay due is $4,112.03. There will be an interest payment and payment for costs giving a total of $4,417.36.

In relation to the holiday pay the amounts are as set out in annexure A to the application, that is the sum of $3031.35 in relation to the first year and in relation to the pro rata period the sum of $1,080.68 and that gives a total of $4,112.03. In addition to that there is a court filing fee of $63 but no other order as to costs and when calculation for interest is taken into account the amount payable is $4,417.36.

The interest is $242.33 and that amount is to be paid within 28 days at level 4, the Registry in the Downing Centre. 24 A key feature of the appellant's claim that his application should be granted may be described as his concern as to the "precedent" effect or significance of the magistrate's decision both as to his own business and to the industry generally. I do not consider that consideration weighs in favour of the appellant's case. The decision was a very short extempore decision given in the relevant court's small claims jurisdiction. Those considerations of themselves mean that the decision is unlikely to have any precedent value. That conclusion is confirmed when regard is given to the consideration that his Honour's decision was essentially based on a factual finding as to the basis upon which the respondent drove taxis on behalf of the appellant. 25 The provision on which the respondent's annual leave claim before the Chief Industrial Magistrate was based was cl 19, Annual Leave, of the relevant Contract Determination. That clause provided: 19. Annual Leave

(a) Method I - (i) A permanent bailee who has taken taxi cabs on bailment as a permanent bailee from the one bailor for a period of 12 months under method I during which time he has completed a minimum of 230 shifts or 220 night shifts shall be entitled to 5 weeks' annual leave, exclusive of any public holidays occurring during that period. Payment in total for such annual leave shall be equal to 5/47 of the bailee's total entitlement from the chargeable fares during those twelve months.

(ii) A permanent bailee who has taken the cabs on bailment, as a permanent bailee, from the one bailor, for a period of at least 3 months but less than 12 months, under methods I, shall, on the termination of his contract of bailment with that bailor, be entitled to be paid an amount for holiday pay equal to 4/48 of the bailee's total entitlement from the chargeable fares retained by him during the period for which leave is taken.

(b) Method II - (i) A permanent bailee who has taken taxi cabs on bailment, as a permanent bailee, from the one bailor for a period of 12 months under method II, during which time he has driven a minimum of 230 shifts or 220 night shifts, shall be entitled to 5 weeks' annual leave, exclusive of any public holidays occurring during that period, at the rate set out in Item 2 of Table 2.

(ii) A permanent bailee who has taken taxi cabs on bailment, as a permanent bailee, from the one bailor for a period of at least 3 months but less than 12 months, under method II, shall, on the termination of his contract of bailment with the bailor, be entitled to be paid an amount for holiday pay at the rate set out in Item 3 of Table 2. 26 The expression "permanent bailee" is defined in cl 2, Definitions, of the same instrument in these terms: (b) Permanent Bailee - A permanent bailee is a bailee who regularly takes a taxi cab on bailment, from the one bailor, for five shifts per week, or a bailee who regularly takes a taxi cab on bailment, from the orle bailor, for night shifts at a rate of night shifts per week which would achieve 220 night shifts per year. For the purposes of this definition absences occasioned by illness, annual leave, public holidays or other authorised leave shall be counted as shifts in determining whether a bailee is permanent. 27 Turning then to "merit" matters on which the appellant relies, these aspects essentially relate to the contention that his Honour erred in taking into account shifts when the respondent was not driving a cab actually owned by the appellant since the Contract Determination provided that the requisite number of shifts should be calculated only by reference to when the bailee "has taken taxi cabs on bailment as a permanent bailee from the one bailor". 28 His Honour dealt with this aspect in his decision by finding that when the respondent was not driving a cab that was actually owned by the appellant "he was still working at the direction of the [appellant] and in accordance with arrangements made by the [appellant] with other owners ...". 29 A number of observations may be made as to the appellant's criticisms of his Honour's approach. First, the issue whether the taxis the respondent drove were limited to those owned by the appellant and the related issue whether the respondent knew the identity of the owner of each taxi he drove from time to time were matters in respect of which the parties were manifestly at odds at first instance. There could be no doubt therefore that his Honour was aware that his decision depended on the resolution of these issues. Second, cl 19 of the Contract Determination does not require, or necessarily contemplate, that on each occasion a taxi was the subject of a bailment the bailor be the legal or registered owner of the vehicle. 30 It was therefore open to his Honour to reach the conclusion he did after having "carefully considered all the documents" before him in the light of the submissions of the parties. 31 The issue raised by the appellant that the use by his Honour of verbiage referring to "working at the direction of the [appellant]" involved error by wrongly straying into employment concepts shows a misunderstanding of what his Honour said or intended. His Honour was not raising the spectre of employment; rather, he was merely referring to the nature of the arrangements between the parties and accepting the approach of the respondent that he was not aware, or not necessarily aware, of the identity of the owner of each taxi he drove. 32 It was in that context his Honour held that to the extent that the respondent drove taxis not owned by the appellant the relevant arrangements were made by the appellant and thus the taxis were "taken" on bailment from the appellant as bailor for the purposes of both cl 19, Annual Leave and cl 2(b), the definition of "Permanent Bailee". His Honour was therefore making factual findings in favour of the respondent and against the appellant. In particular, findings were made against the appellant as to his reliance on the different ownership of certain taxis during certain shifts and his calculation of the relevant number of shifts. Again, these findings were reasonably open to the Chief Industrial Magistrate. 33 These conclusions, in light of the whole of the circumstances of the matter, result in the prospect of leave being granted as most unlikely. Accordingly, the Court could not be satisfied that it is necessary to grant the present application in order to do justice to the parties and to ensure the proper administration of justice. The appellant's application to reinstate this appeal is refused, with costs (which may be assessed in default of agreement). ________________

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