Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2017
  4. May v Top Class Fruit Supply Pty Ltd - [2017] QDC 327

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

May v Top Class Fruit Supply Pty Ltd[2017] QDC 327

May v Top Class Fruit Supply Pty Ltd[2017] QDC 327

DISTRICT COURT OF QUEENSLAND

CITATION:

May v Top Class Fruit Supply Pty Ltd [2017] QDC 327

PARTIES:

MANUEL MAY

(appellant)

v

TOP CLASS FRUIT SUPPLY PTY LTD

(respondent)

FILE NO/S:

APPEAL NO: 11/17

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mareeba

DELIVERED ON:

15 December 2017

DELIVERED AT:

Cairns

HEARING DATE:

10 August 2017

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal dismissed.
  1. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, the appellant will pay the costs of the respondent of the appeal to be assessed on the standard basis.

CATCHWORDS:

APPEAL – CIVIL LAW – judgment Magistrates Court to District Court – appeal pursuant to s 45 of the Magistrates Courts Act 1921 (Qld)  – where claim for unpaid wages and time off in lieu of overtime – error of law – whether the magistrate erred by ignoring the law providing statutory entitlements – whether the magistrate gave appropriate weight to some of the evidence and wrongly took into account irrelevant, false or hearsay evidence – whether the magistrate erred by wrongly excluding evidence – whether the magistrate made findings which were not open on the evidence – whether the magistrate failed to give adequate reasons for his findings – whether the magistrate was biased and/or based his decision on personal whim

Legislation

District Court of Queensland Act 1967 (Qld), s 113

Fair Work Act 2009 (Cth), s 62

Justices Act 1886 (Qld). s 223(2)

Magistrates Courts Act 1921 (Qld), s 45

Supreme Court of Queensland Act 1991 (Qld)

Uniform Civil Procedure Rules 1992 (Qld), r 746, 753, 765(1), 758, 766, 767 and 777

Cases

Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Coulton v Holcombe (1986) 162 CLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219

Dwyer v Calco Timbers (2008) 234 CLR 124

Fox v Percy (2003) 214 CLR 118

Gallo v Dawson (1990) 93 ALR 479

International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319

Johnson v Johnson (2000) 201 CLR 488

Jones v National Coal Board [1957] 2 QB 55

Kioa v West (1985) 159 CLR 550

MBL v JP [2011] QCA 220

Neil v Nott (1994) 121 ALR 148

Suttor v Gundowda Pty Limited (1950) 81 CLR 418

Warren v Coombes (1979) 142 CLR 531

Whisprun Pty Ltd v Dixon (2003) 200 ALR 44

SOLICITORS:

Self – represented for the Appellant

Self – represented for the Respondent

  1. [1]
    The appellant appeals against an order that was made on the 3rdof November 2016 in the Magistrates Court in Mareeba in respect of employment entitlements.
  1. [2]
    After a trial in the Magistrates Court, the learned trial magistrate gave judgment for the appellant in the amount of $9052.27 including costs. The appellant now appeals the decision.
  1. [3]
    The respondent has provided detailed outlines of argument, and both parties have made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [4]
    The appellant was in the employ of the respondent company, Top Class Fruit Supply Pty Ltd, from 3 May 2015 until 17 November 2015.
  1. [5]
    The appellant’s employment evolved through a 457 Visa Application process and separate written agreements with different corporate employers, which had the same shareholder and director. He initially executed an employment agreement on 21 May 2015 with Fruit City Pty Ltd for the position of a senior technical research officer for sustainable agriculture.
  1. [6]
    Later, on 15 July 2015 he executed a further employment contract with the respondent, which carried the visa application and remained in forced until the appellant’s termination. This contract relevantly provided that:
  1. The appellant’s position title was “diesel motor mechanic”;
  1. The employment commenced from “3 May 2015” for a fixed term of “36 months”;
  1. The position was described as a “diesel motor mechanic”;
  1. Remuneration was a gross salary was $53,944.80 per annum or $27.30 per hour;
  1. The annexure provided for the special term - “Time off in lieu of overtime”.
  1. [7]
    His employment was terminated on 17 November 2015 by an email from the respondent, although the appellant does not accept this as receipt of “official notice” despite commencing proceedings by way of an employment claim an employment claim on that basis from his “former employer, Top Class Fruit Supply Pty Ltd”. In these proceedings the appellant claimed $65,856.73 for entitlements under the “Pastoral Award 2010 MA000035/National Employment Standards” in his capacity as “Full Time Diesel Mechanic / Senior Research Officer/ Farm Manager”.
  1. [8]
    The respondent defended the Employment Claim. It primarily disputed that the appellant’s employment was within the Horticulture Award 2010, or any other modern award. It maintained that the employment was governed by the terms and conditions of the May 2015 employment contract with the appellant variously as Full Time Diesel Mechanic, Senior Research Officer andFarm Manager, and asserted that the appellant’s duties were mainly of Farm Manager. It also conceded $8,922.27 of the claim, comprising of one week’s payment in lieu of notice, one week’s unpaid wages, accrued but untaken annual leave of 82 hours, and migration costs in the amount of $3,720. Otherwise, the respondent contended that: the appellant’s work involved little or no supervision of other workers as part of ordinary duties; overtime neither permitted nor authorised; witnesses did not see the appellant working overtime outside his normal hours and he work 6 to 10 hours per week.
  1. [9]
    The determinative issues in the trial below were:
  1. The employment terms and conditions and whether an Award applied;
  1. Whether an Award or employment agreement provided for: overtime, meal allowance, supervision more than seven people; protective clothing; expenses relating to the appellant’s via application; and termination entitlements;
  1. Whether the appellant proved his claim to any such entitlement.
  1. [10]
    The proceeding was managed by pre-trial directions, which require the aprties to file and exchange affidavit evidence in support of their respective cases. The hearing on 3 November 2016 included evidence in chief by, and cross examination of the deponents of the following affidavits:
  1. Affidavit of the appellant dated 15 June 2016 and 21 September 2016
  1. Affidavit of Tepkunna Kim dated 5 July 2016
  1. Affidavit of Warren Clarke dated 4 July 2016
  1. Affidavit of Brendon Jenkins dated 4 July 2016
  1. Affidavit of Colin Eparaima dated 5 July 2016
  1. Affidavit of Tony Chiefari dated 20 July 2016, and 19 October 2016.
  1. [11]
    The magistrate directed the parties to file and exchange written outlines of argument at the conclusion if the trial. The appellant’s outline had about 23 attachments including multiple time sheets, payroll summary, emails, farm plans, correspondence etc. He also revised the calculations to increase his claim to $70,154.18. The respondent filed a further short affidavit on 21 November 2016 (in the nature of submissions) objecting to the further evidence.
  1. [12]
    Neither party attempted to re-open the case to amend the claim or adduce any fresh evidence.
  1. [13]
    The learned magistrate delivered his decision orally on 21 September 2016. In relation to the fresh evidence attached to the appellant’s submission, His Honour remarked at para 3:

“At the conclusion of the trial I called for written submissions form the parties, [the appellant] filed numerous documents in the form of evidence. As the taking of evidence had closed those documents received after the trial cannot be received by the Court as evidence”.

  1. [14]
    The learned magistrate went on to find that the last employment contract made on 15 July 2015 superseded and substituted the previous employment agreement, and that the identified awards did not impact on the agreement. He also found that the employment agreement was terminated on 17 November 2015. His Honour did not accept that the appellant worked significant overtime or supervised more than 7 and up to 10 people, and instead preferred the contrary evidence of several other witnesses. The claims for overtime, supervision allowance, meal allowance were dismissed.[1]
  1. [15]
    The learned trial magistrate gave judgment for the appellant in the amount of $9,052.27, calculated as follows:
  1. $829.23 for one week’s pay from 12 November 2015 to 18 November 2015;
  1. $845.00 for overtime on the above week;
  1. $2,557.50 for accumulated annual leave of 82 hours;
  1. $3,720.00 for migration costs;
  1. $56.00 for costs; and
  1. $74.00 for bailiff service.
  1. [16]
    There was also a Queensland Commercial and Administration Tribunal judgment debt in favour of Fruit City Pty Ltd against the appellant and his wife for unpaid rent. The learned magistrate found that the appellant was jointly and severally liable for the judgment debt, and previously authorised the respondent to withhold money in satisfaction of that third party debt.[2]
  1. [17]
    The appellant now appeals the decision and orders.

Grounds of Appeal

  1. [18]
    The appellant relies on the following grounds of appeal in the notice of appeal which substantially overlap and conflates legal and factual contentions by reference to the magistrates decision:
  1. The Magistrates arrived at his decision without proper evidence to support his findings. The primary facts of the decision are unsupported by and evidence and unsubstantiated. This error of law led to admission of false and irrelevant evidence/findings and exclusion of relevant evidence, as the Magistrates misconstrues the scope of his discretion.
  1. The Magistrate ignored the National Employment Standards and the Fair Work Act. This constitutes exclusion of relevant evidence. The error of law led to wrongful rejection of evidence and statues/law, as the Magistrates misconstrues a statutory provision and thereby considers irrelevant rather than relevant consideration.
  1. The Magistrate failed to give proper reasons for his decision, therefore it is implausible how the Magistrate reached his decision, and consequently the decision is without merit.
  1. The Magistrate wrongly took into account evidence he should not have such as hearsay evidence or irrelevant statements by the witnesses and slander. This error of law led to admission of false and irrelevant evidence/findings and exclusion of relevant evidence, as the Magistrates misconstrues the scope of his discretion.
  1. The Magistrate wrongly stopped evidence from being given. The Appellant’s wife, Natalie May was refused as a witness. The Magistrate refused to hear evidence, even though it would prove facts state by the Appellant, the Magistrate therefore declined jurisdiction. The magistrate did not properly decide some procedural matter such as refusing a witness statement and that decision prevented Mr. May from being able to present all the relevant evidence.
  1. The Magistrate decided not to hear certain evidence, e.g. statements provided by the witnesses that would have been relevant to this claim or the Magistrate has ignored such evidence presented throughout the court proceedings. This error of law led to admission of false and irrelevant evidence/findings and exclusion of relevant evidence, as the Magistrates misconstrues the scope of his discretion. The Magistrate ignores that Mr. May straight away agreed during trail that he had accidentally made a mistake with his attachments and did that he could provide the correct document.
  1. The Magistrate overlooked perjury. The respondent, Mr. Chiefari continuously lied under oath throughout the court proceedings. The provided proof of perjury has been ignored by the Magistrate.
  1. The Magistrate relies on his personal point of view and states his personal opinion, instead of just relying on facts and the law. This error of law held to admission of false and irrelevant evidence/findings and exclusion of relevant evidence, as the Magistrates misconstrues the scope of his discretion and therefore declined jurisdiction. The Magistrate acted in an arbitrary manner and reached a finding of fact not supported by any evidence and stepped beyond the limites of its own expertise in an area where an expertise such as organic farming and management; Diesel Motor Mechanic and Senior Research Management expertise would be of assistance.
  1. The Magistrate leaves no opportunity to prove facts that became relevant throughout the trial date or questioned even later in the last submission of the defendant. For example Manuel May’s timesheets were never disputed or doubted by the Respondent. The relevant timesheets of Manuel May are for performed work between 03.05.2015 and the 02.09.2015. The performance of Manuel May during that time was never questioned by the Respondent, on the contrary Manuel May even received a pay rise later on as recognition of his excellent work performance as farm manager. Consequently, it is unacceptable and unfair to discredit Mr. May’s work performance afterwards without a professional independent evaluator or proven facts to base the findings on, as these areas do not fall in the area of the Magistrates expertise. Furthermore, it is not relevant to the case because Mr. Chiefari was aware of the performed overtime and also continuously requested overtime to be performed by Mr. May, stating from the first week of the commencing employment. It should have had no relevant to the claim that Mr. Chiefari, over one year later, complained that he now decided that he is not happy with the work performance. (It is important to note that Mr. May’s performance was never questioned until Mr. May requested to be paid the performed overtime hours). Mr. Chiefari’s changing opinion in regards to the quality of Mr. May’s work does no take Mr. Chiefari’s responsibility away to pay for the accumulated work hours of overtime. The actual reasons for filing timesheets is that the employer is informed about the type of duties performed by the employees and when the employees are performing work. The Fair Work Act states that if you are not happy with performed work of overtime you have to write the employee a written notice to stop performance of overtime. Mr. May never received such a written notice or any notice in regards to overtime. This error of law led to admission of false and irrelevant evidence/findings and exclusion of relevant evidence, as the Magistrates misconstrues the scope of his discretion. This error of law also led to wrongful rejection of evidence, e.g timesheets and statues/law, as the Magistrates misconstrues a statutory provision and thereby considers irrelevant rather than relevant consideration. The Magistrate acted in an arbitrary manner and reached a finding of fact not supported by any evidence and stepped beyond the limits of its own expertise in an area where an expertise such as organic farming/management expertise would be of assistance in order to form a fair decision.
  1. The Magistrate ignored what the witnesses state in Manuel May’s favour under cross-examination during trail. This error of law led to wrongful rejection of evidence and statues/law, as the Magistrates misconstrues a statutory provision and thereby considers irrelevant rather than relevant consideration.
  1. Natalie May was denied as a witness. Mr. May requested only one witness and this request was denied. This seems to be unfair and unjust in comparison to the amount of witnesses called and cross-examined by the defendant. Mrs. May was waiting in the front of the court room on the 3rd of November 2016 for the entire time of the hearing taking place inside the court room, but she was still denied entry and was not allowed to give her testimony or to be cross-examined. This error of law led to wrongful rejection of evidence and statues/law, as the Magistrates misconstrues a statutory provision and thereby considers irrelevant rather than relevant consideration.
  1. Mr. May never authorized Top Class Fruit Supply to “withhold” outstanding wages. This false finding in the decision represents an error of facts. The facts relied upon in the decision, should be found within the record/transcript, and the parties must be given an opportunity to meet in an appropriate fashion any material which influences the decision making process, yet these rights have been denied by the Magistrates.
  1. Most of the essential paragraphs of the decision show ignorance of the (sic), throughout the court process presented facts, the Fair Work Act 199 and the decision is mainly based on personal acceptance through the Magistrate (“I accept….”) not the law as in the National Employment Standards, the Fair Work Act or Modern Awards, which should have applied. This is an error of law and judgement. The Magistrate should rely and base decisions and judgements on regulations and laws. In regards to this employment claim most parts of the claim are regulated and governed through the government bodies and basic law/statues and regulations. The appealed decision does not point out any regulations even though Mr. May referred to the Fair Work Act regulations throughout the entire court proceedings but the Fair Work Act was still ignored by the Magistrate. For example, the employment agreement states in the annexure on page 15: “1. Time off in lieu of overtime”. Furthermore, the Fair Work Act states “time off in lieu “has to be paid out if the employment is ceased before time of in lieu was taken. In contradiction to the employment agreement and the Fair Work Act, the Magistrate states Mr. May has no right for the accumulated overtime to be paid out. (Please find one or Mr. May’s employment agreements with Top Class Fruit Supply PTY LTD as proof attached to this application). This conclusion in regards to overtime payments in the decision is an error of law and error of fact as set out above. The Fair Work Act regulates termination letters in great detail, and e.g. states that at the end of an employment, the employer must give written notice in form of a dated and signed termination letter delivered to the employee (an email is not accepted in the Act); however, the Magistrate ignored the Fair Work Act in his decision, due to error of law and facts. These errors of law and fact led to admission of false and irrelevant evidence/findings and exclusion of relevant evidence, as the Magistrates misconstrues the scope of his discretion. This error of law also led to wrongful rejection of evidence, e.g. timesheets/employment agreement and statues/law, as the Magistrate misconstrues a statutory provision and thereby considers irrelevant rather than relevant consideration. The Magistrate declined jurisdiction for the payment of overtime with no merit and no legal foundation and acted in an arbitrary manner and reached a finding not supported by any evidence.
  1. The above mentioned and listed errors of law and facts etc. are of such significance that the decision should be overturned. The Magistrate arbitrarily made a finding of facts on important issues for the claim which could not be supported by the evidence as demonstrated above. The Magistrate appears to have manifested impermissible bias to one party or the other, obviously causing severe detriment to the Appellant, as the Magistrate did not properly take into account the evidence presented by the Appellant.
  1. If this appeal is allowed to be hear by the District Court, Mr. May will state the grounds of this appeal in more details and will file detailed facts/proof and documents in a further submission.
  1. [19]
    These appeal grounds can be synthesised (with some tolerable overlap) as follows:
  1. The magistrate erred by ignoring or failing to properly apply the law providing statutory employment entitlements. (Ground 2 & 13)
  1. The magistrate did not give appropriate weight to some of the evidence and wrongly took into account irrelevant, false or hearsay evidence. (Grounds 4, 6, 7, 9, 10, 11 and 13)
  1. The magistrate erred by wrongly excluding evidence. (Grounds 1, 5, 6, 8, 11 & 12)
  1. The magistrate made findings, which were not open on the evidence (Grounds 1, 8, 12 & 14).
  1. The magistrate failed to give adequate reasons for his findings. (Ground 3)
  1. The magistrate was biased and/or based his decision on personal whim. (Grounds 8, 13 & 14)

Mode of Appeal

  1. [20]
    The appellant appeals pursuant to s 45 of the Magistrates Courts Act 1921 (Qld).
  1. [21]
    This court has the same powers as the Court of Appeal when hearing an appeal.[3]Those powers are contained in Part 3 Division 1 of the Supreme Court of Queensland Act 1991, and the relevant rules, in particular Chapter 18 Part 3. By virtue of rule 785 of the UCPR, Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought.
  1. [22]
    The mode of the appeal is by rehearing.[4]This court effectively tries the matter over again on the record of evidence before the trial magistrate and nay additional evidence permitted at the appeal. As he did at the conclusion of the trial, the appellant has attached fresh evidence to his outline of argument, especially, time sheets for his hours of work.
  1. [23]
    “Special grounds” are required before fresh, additional or substituted evidence (new evidence) may be admitted on appeal: s 223(2) Justices Act 1886. The discretion will generally be invoked where the new evidence:
  1. Could not have been obtained with reasonable diligence for use at the hearing;
  1. Would probably have an important influence on the result of the case, even though not be decisive; and
  1. Must be apparently credible though not incontrovertible.
  1. [24]
    The respondent acceded to the need to have regard to the times sheets as having a potential influence in the determination of the appeal. So, I have had regard to those documents.
  1. [25]
    The court is empowered to draw inferences of fact from that evidence,[5]and any fresh evidence it allows on special grounds.[6]Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[7]
  1. [26]
    The appellant must demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[8]
  1. [27]
    Pursuant to s 47 of the Magistrates Courts Act 1921 (Qld), on the hearing of the appeal this court may:
  1. (a)
    draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
  1. (b)
    order a new trial on such terms as it thinks just;
  1. (c)
    order judgment to be entered for any party;
  1. (d)
    make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
  1. (e)
    as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
  1. (f)
    make such order with respect to the costs of the appeal or special case as it thinks proper.
  1. [28]
    Where a point was not taken in the trial court and evidence could have been adduced prevented the point from succeeding, or the point requires a further trial, it cannot be taken afterwards.[9]Otherwise, appellant courts generally tolerate new points. Here the appellant has sought to support his claim by reference different Awards that claimed or relied upon at trial.

The magistrates erred by ignoring or failing to properly apply the law providing statutory entitlements.

(Ground 2 & 13)

  1. [29]
    It is essential to the determination of the claim to properly identify the foundation of the employment relationship, e.g. the employment agreement and any applicable statutory implications and entitlements.
  1. [30]
    This occupied most of the appeal, yet the appellant was unable to fix on the appropriate Award that would apply to him.
  1. [31]
    It is trite to say that the Fair Work Act 2009 (Cth) provides for national legislative minimum employment entitlements. Since workplace laws were a matter for the States, this national system depended upon the States referring matters to the federal government. Queensland kept its workplace relations powers over state and local government employees. The Awards, together with the National Employment Standards and the national minimum wage, defined the minimum entitlements for employees covered by the nation system.
  1. [32]
    The appellant contends that the Fair Work Act 2009 (Cth), the employment standards, and Awards provided for overtime and other entitlements arising out of his employment. The respondent accepts the application of the Fair Work Act2009 (Cth), so the issue is whether and to what extent the National Employment Standards and any Award applied to the appellant’s employment. The focus being on the latter.
  1. [33]
    The starting point for any employment claim is the proper characterisation of the appellant’s position, which he variously described as Full Time Diesel Mechanic, Senior Research Officer and/or Farm Manager. The respondent asserted that the appellant’s duties were mainly of Farm Manager in the later phase of his employment. It contends that the appellant worked is these senior roles involving:
  1. (a)
    Attending meetings as a representative of the defendant;
  1. (b)
    Undertaking the preparation and planning of tasks for the farm and farm staff;
  1. (c)
    Researching methods and best practice for the cultivation of organic fruit and vegetables as grown on the farm;
  1. (d)
    The hiring and termination of farm staff;
  1. (e)
    Management of the farm office;
  1. (f)
    Preparation of staff rosters and delegating tasks to farm staff; and
  1. (g)
    Supervision of staff.
  1. [34]
    The scope of the duties were deposed to by the respondent’s principal, and generally accepted by the appellant during cross-examination. So much was common ground between the parties. The critical legal question was whether these duties were caught by an industry or occupational award.
  1. [35]
    In the originating proceeding, the appellant pleads his claim to entitlements calculated under the “Pastoral Award 2010 MA000035/National Employment Standards” as follows:
  1. (a)
    $25,923.60 overtime from 11 June 2015 to 2 September 2015;
  1. (b)
    $1,706.67 meal allowance for 11 June 2015 to 26 November 2015;
  1. (c)
    $3,109.73 for 113 hours 41 minutes of accumulated annual leave from 5 March 2015 to 2 December 2015;
  1. (d)
    $22,584.03 for supervising 7 or more staff between 11 June 2015 to 2 September 2015;
  1. (e)
    $250.00 protective clothing; and
  1. (f)
    $3373.08 for 2 pay periods after termination from 26 November 2015 to 2 December 2015;
  1. (g)
    $5,059.62 for 3 weeks work form 12 November 201 and 2 December 2015;
  1. (h)
    $3720.00 for immigration fees and costs – Fees for 457 Sponsor-Application, 457 Nomination, 457 Client-Application and Service of a professional migration agent.
  1. [36]
    However, the appellant’s faith in the Pastoral Award 2010 seemed to wane during the course of the proceeding. During his evidence, he identified the Higher Education Industry-General Staff Awardas the “most fitting award” covering his duties.[10]Later in his outline of argument, the appellant does not specifically identify any provisions of either the National Standards, or an applicable Award. Instead, he mainly responded to the respondent’s written argument and related the factual disputation.
  1. [37]
    In the decision, the learned magistrate did not fix on any particular award in his reasons, and at best he made a passing reference to the Professional Employees Award 2010. It is not clear to me how that award came into play. Ultimately, the issues were determined factually; that is, the findings made by the learned magistrate rendered the appellant’s claims factually impotent regardless of any legal entitlements. I return to this later.
  1. [38]
    Even though the Fair Work Act 2009 (Cth) plainly applied to the appellant’s employment, by the time the matter came on for the appeal it was still unclear whether any particular Award covered his position. I invited the appellant to make further written submissions identifying the relevant provisions of the legislation, standards and any relevant award. Both parties have exchanged further submissions since the hearing. The appellant’s were made extensive references to the Act.
  1. [39]
    The appellant remains confused and uncertain about the relevant Award (if any). At best, the appellant arguments seem to ‘cherry pick’ from his duties to cross-pollinate several awards, with the result that multiple Awards concurrently apply of to his circumstances. In addition to theHorticulture Award 2016(subject of the claim), the appellant relies upon several other the occupational Awards to support his claim, namely,
  1. (a)
    Vehicle Manufacturing; Repair, Services and Retails Award 2010;
  1. (b)
    Clerks – Private Sector Award 2010;
  1. (c)
    Professional Employee Award 2010; and
  1. (d)
    Higher Education Industry-General Staff Award 2010.
  1. [40]
    The Horticulture Award 2016is an industry award that covers employers throughout Australia in the horticulture industry and their employees in the prescribed classifications, to the exclusion of any other modern award. In section 4.2, ‘Horticulture industry’ is defined tomean:
  1. (a)
    agricultural holdings, flower or vegetable market gardens in connection with the sowing, planting, raising, cultivation, harvesting, picking, packing, storing, grading, forwarding or treating of horticultural crops, including fruit and vegetables upon farms, orchards and/or plantations; or
  1. (b)
    clearing, fencing, trenching, draining or otherwise preparing or treating land for the sowing, raising, harvesting or treating of horticultural crops, including fruit and vegetables.
  1. [41]
    Clearly enough the appellant was employed in the industry covered by the Award. However, that is where its usefulness ends once his duties are compared with the various classifications. For example, the indicative duties of the highest level 5 classified employee in Schedule B are:
  1. (a)
    inspecting products and/or materials for conformity with established operational standards and approves/passes first off samples;
  1. (b)
    operating, setting up and adjusting maintenance functions including (but not limited to):removing equipment fastenings including use of destructive cutting equipment;and running adjustments to production equipment;
  1. (c)
    operating all lifting equipment;
  1. (d)
    basic production scheduling and materials handling within the scope of production process or directly related functions;
  1. (e)
    exercising high level stores and inventory responsibilities;
  1. (f)
    providing on-the-job training;
  1. (g)
    providing assistance within the scope of this level to other employees.
  1. [42]
    Whilst these duties compare in some respects with the position of the appellant, his duties were in most respects greater, and somewhat lesser in some respects, in nature and responsibility and involved a wider scope of work. His duties transcended the scope of the Award. In my view the appellant is not caught in any prescribed classification in the Award.
  1. [43]
    Similarly, the appellant’s duties of Diesel Mechanic would be akin to a mechanic in the vehicle repair, services and retail industry covered by the Vehicle Manufacturing; Repair, Services and Retails Award 2010, the respondent’s undertaking and work place clearly falls out of the scope of that Award and the appellant is not so caught.
  1. [44]
    The Clerks – Private Sector Award2010 provides for an even narrower sector. It covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. The appellant’s role well exceeds the bounds of this Award.
  1. [45]
    At the other end of the spectrum is the Professional Employee Award 2010, which covers employers throughout Australia employing professional engineering and scientists covered by the classifications in its schedule. These classifications are appropriate to ascending levels of professional engineers, professional scientists or professional information technology employees. The duties of the appellant were comparably less in professional status and mixed with mechanical and management duties beyond the scope of the Award.
  1. [46]
    The final award relied upon was the Higher Education Industry-General Staff Award 2010. This industry award covers employers throughout Australia in the higher education industry as defined and their academic staff in classifications differentiated by level of complexity, degree of autonomy, leadership requirements of the position and level of achievement of the academic. Whilst the appellant was a former university lecturer in nuclear and medical physics, the respondent employed him in a very different role. This Award is the least applicable to the appellant’s circumstances in terms of duties, industry and reality.
  1. [47]
    I accept, and it is undisputed, that the appellant’s position evolved with duties variously associated to a Diesel Mechanic, Senior Research Officer andFarm Manager, and he secured pay increases in the period of employment to recognise his longer hours as Farm Manager in the later phase of his employment. Other terms of the employment contract dated 15 July 2015 relevant to the dispute are: 

“18.1All other minimum entitlements of employment will be governed by the Fair Work Act 2009 (Cth), however, these will not form part of this Agreement.

“19.1 This employment agreement represents the entire agreement between the Employee and the Organisation and supersedes any prior representation, understanding or arrangement between the parties whether oral or in writing.” 

“19.2 … all other agreements between any related company and the employee are hereby terminated”.

“20.1 If the Employee’s position, job location or remuneration package changes during the employment, the other provisions of this agreement will continue to apply to the Employee’s employment unless carried by mutual agreement in writing”.

  1. [48]
    It seems to me that the appellant has failed to show (as he did below) that any particular award covered his employment relationship with the respondent. It was appropriately governed by the particular terms and conditions of the employment agreement dated 15 July 2015 as permitted under the Fair Work regime. The learned magistrate also came to this view, which I think is the correct one.
  1. [49]
    Therefore, I do not accept that the learned magistrate ignored the Fair Work framework in arriving at his decision. The appellant’s grounds in this regard will fail.

The Magistrate did not give appropriate weight to some of the evidence and wrongly took into account irrelevant, false or hearsay evidence. (Grounds 4, 6, 7, 9, 10, 11 and 13)

  1. [50]
    Appellant asserts that the learned trial magistrate wrongly took into account of evidence that was false, irrelevant, hearsay and/or slanderous. The argument effectively criticises the magistrates findings based on the witnesses credibility.
  1. [51]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[11]

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

  1. [52]
    Similarly, in Fox v Percy,[12]Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[13]as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28]… 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.” (references omitted)

  1. [53]
    This is not an exhaustive formula. The court went onto recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:

“[29]… In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effectto” its own conclusion.

[30]It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”  (references omitted)

  1. [54]
    The trial magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,[14]the majority of the High Court reiterated the rule that:

“[I]n 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. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.

  1. [55]
    Apart from general allegations, the appellant contends that the learned magistrate made the following evidentiary errors:
  1. The appellant’s timesheets for performed work between 03.05.2015 and the 02.09.2015 were never disputed or doubted by the respondent.
  1. The Respondent never questioned the appellant’s performance during that time, on the contrary, the appellant received a pay rise later on as recognition of his excellent work performance as farm manager.
  1. Mr. Chiefari was aware of the performed overtime and also continuously requested overtime to be performed by the appellant, starting from the first week of the commencing employment. The appellant’s performance was never questioned until the appellant requested to be paid the performed overtime hours, over one year later.
  1. The Fair Work Actstates that if you are not happy with performed work of overtime you have to write the employee a written notice to stop performance of overtime. The appellant never received such a written notice or any notice in regards to overtime.
  1. The Magistrate ignored what the witnesses stated in the appellant’s favour under cross-examination during trail.
  1. The appellant never authorised the respondent to “withhold” outstanding wages to set off rent due to a third party.
  1. The employment agreement states “1. Time off lieu of overtime”, and the Fair Work Actstates “time off in lieu” has to be paid out if the employment is ceased before time of in lieu was taken.
  1. The Fair Work Actregulates termination letters by requiring the employer to give written notice in form of a dated and signed termination letter delivered to the employee, not an email.
  1. [56]
    On my review of the evidence before the magistrate and further evidence allowed on the appeal, none of these grounds are sustainable. Put simply, the learned magistrate preferred the respondent’s witnesses to find that the appellant did not perform additional unpaid work, or enliven rights to any additional statutory entitlements to meal allowance, supervision of more than seven people; protective clothing; more expenses relating to the appellant’s visa application; and termination entitlements. In doing so, he has not failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence’ or which was glaringly improbable.
  1. [57]
    This is best illustrated in light of the context of the appellant’s claimed entitlements.

Overtime claim

  1. [58]
    The appellant claims $25,923.60 for overtime from 11 June 2015 to 2 September 2015, and occupied most of the appeal hearing and was subject of fresh evidence by way of the timesheets. The appellant, while given ample opportunity to do so, could not identify any express or clear request to perform overtime from his employer. Instead, he relied upon the timesheets, which set out a consistent work pattern extending well into the night.
  1. [59]
    The respondent argues that the appellant has fundamentally misunderstood the Fair Work Act, for example: the statutory obligation for an employer to request or require an employee not to work more than the contracted 38 hours per week unless the additional hours are ‘reasonable’.[15]Further, whilst the respondent did not dispute the mere existence of the timesheets, there was significant factual disputation about their veracity, and that of the appellant. The respondent relied upon contradictory oral and written testimony from which the magistrate was able make findings on direct evidence and draw appropriate inferences, to assess credibility and reliability of the witnesses. It also contended that the appellant was directed (by email) to desist from overtime work and claims.
  1. [60]
    The weight of the evidence supported the respondent’s case, and was apparently preferred by the learned magistrate.
  1. [61]
    The primary source of the any permission to work overtime is the employment contract. Clause 3.1 provided that: “The employee will be required to work an average of 38 hours each week plus reasonable additional hours.” And the “Annexure – Special Terms” expressly provided for “1. Time off in lieu of overtime.”
  1. [62]
    The respondent’s principal, Mr Chiefari, testified that the company had never required or asked the appellant to work overtime, and on the contrary, he was direct not to work beyond the 38 hour week both orally and in writing.[16]He testified that the appellant had not provided any accumulated overtime request until 7 December 2015 being one month after the termination.[17]
  1. [63]
    This was consistent with the documentary evidence before the court, which was also open.
  1. [64]
    In an email to the appellant of 20 August 2015,[18]Mr Chiefari said:

“You would be employed on a fixed salary and a bonus system which would give you a bonus once there was a profitable outcome.

I advised during the period to date that I do not want you to work overtime.

Re - your suggested new arrangement

You are to be paid for all hours worked but are not entitled to a bonus.”

  1. [65]
    The respondent increase the appellant’s weekly payments by way of a ‘fixed allowance’ of $845 to reflect his role as farm manager and organic farming expert.[19]In a later email to the appellant of 15 October 2015,[20]and Mr Chiefari said:

“You (sic) salary request increase has now been approved via our accounting firm it will be structured under a salary, allowance package. I will explain the details when next we speak.

Re-Salary negotiation review

Previously I stated clearly to you that I do not have or wanted you to work extra hours but you have now insisted on that direction.

It has now implemented that approach as a trial.

To date the farm is still running at a huge loss and I may need to terminate your employment in the near future to minimise over heads.”

  1. [66]
    The email correspondence rejected the notion of overtime, or at least that there was not any authority, request or requirement for the appellant to work overtime. It could be readily inferred from the remarks “It has now implemented that approach as a trial”, that the increased fixed payment would cover the appellant’s extra effort.
  1. [67]
    The learned magistrate assessed the appellant’s testimony as being “discredited under cross-examination’ when confronted with these documents, and also having regard to other muteness testimony that he accepted.[21]I have had the opportunity to read the affidavits of the other witnesses and their testimony, which is compelling even without the advantage of assessing their demeanour in the position of the trial magistrate.
  1. [68]
    It seems to me that the appellant was unable to satisfy the court, on the balance of probabilities, that he was required or requested to work over time, or that he competently performed reasonable overtime not otherwise compensated, and therefore, no such entitlement arises.

Meal allowance

  1. [69]
    The appellant sought $1,706.67 for meal allowances for 11 June 2015 to 26 November 2015. This claim was underpinned by the extra hours he claimed were worked. The claim is doomed on that basis alone, but also fails since meal allowance was not a condition of his employment contract, the Act, standards, or any Award.

Accumulated annual leave

  1. [70]
    This claim was for $3,109.73 for 113 hours 41 minutes of accumulated annual leave from 5 March 2015 to 2 December 2015.
  1. [71]
    The appellant was not in the respondent’s employ from 5 March 2015 to 2 May 2015 or from 18 November 2015 to 2 December 2015. He could not have any entitlement to accrued annual leave for those periods.
  1. [72]
    Of course the employment contract governed the period from the commencement of his employment on 3 May 2015 until it ended on 17 November 2017. There is no applicable award, but rather Annual leave was amply provided for in the employment agreement as follows:

7 Annual leave

7.1The Employee will be entitled to four (4) weeks of paid annual leave each year.

7.2The Employee’s annual leave entitlements will accrue throughout each year of service, and will accumulate from year to year.

7.7Annual leave can be taken for a period between the Organisation and the Employee, although the Organisation cannot unreasonably refuse to agree to a request by the Employee to take a period of annual leave.

7.4Of the employee’s employment ends for any reasons, the Organisation is to pay to the employee any unsecured annual leave that the Employer has accrued up to the date.

  1. [73]
    In my view the learned magistrate, after taking into account the calculations, correctly concluded that the appellant was entitled to $2,557.50 for accumulated annual leave of 82 hours.

Supervising 7 or more staff

  1. [74]
    The appellant further claimed, $22,584.03 for supervising 7 or more staff between 11 June 2015 to 2 September 2015.
  1. [75]
    The number of staff subject of the appellant’s supervision was a factual dispute at trial. In the end, that mattered little. The employment contract did not provide an extra allowance for the appellant to carry out his supervision of staff, and in the absence of any applicable award, there is no extra income for the responsibility. The appellant’s grounds urging otherwise, must fail.

Protective clothing;

  1. [76]
    The appellant claimed an entitlement of $225 for protective clothing. There is no entitlement under the written employment agreement for the reimbursement of any expenditure for work-related clothing. This also fails.

Unpaid wages

  1. [77]
    The appellant claims $3,373.08 for 2 pay periods after termination from 26 November 2015 to 2 December 2015 and $5,059.62 for 3 weeks work form 12 November 2015 and 2 December 2015.
  1. [78]
    Further, in his written outline of argument at the conclusion of the trial, the appellant revised the calculations to increase his claim to $70,154.18, “Since there was no termination letter produced too now by the NES, I calculated my annual leave up till today”.This was a surprise given that the appellant relied upon entitlements that were only triggered by termination, and otherwise referred to the respondent as his “former employer”. On 17 November 2015 the appellant’s position was rendered redundant upon the closure of the failing farm business and all staff were terminated. In those circumstances, the respondent lawfully terminated the appellant’s employment of the appellant and accordingly the respondent was only required to give one week’s notice of the termination of his employment.
  1. [79]
    Clause 16.4 of the employment agreement provides that where the employment is terminated the respondent is entitled to pay the appellant an amount of base salary in lieu of the period of notice required to be given. In those circumstances the appellant is entitled to at least one weeks base pay, as was conceded by the respondent.
  1. [80]
    The learned magistrate accepted that the appellant gave a direction to the respondent to set off amounts to reduce a rental debt. This was evidenced by the appellant’s email of 2 March 2016[22]to the respondent’s administrator, Tepkunna Kim as follows:

“As requested in writing several times before - please offset the rent against the outstanding wages and NES entitlements you are illegally withholding from me since the 26th NOV 2015.”

  1. [81]
    I am unable to find any error in the magistrates consideration of this part of the appellant’s claim.

Immigration fees and costs.

  1. [82]
    The appellant also claims $3,720.00 for immigration fees and costs – Fees for 457 Sponsor-Application, 457 Nomination, 457 Client-Application and Service of a professional migration agent. These costs were conceded by the respondent by the time of the trial.

The Magistrate erred by wrongly excluding evidence.(Grounds 1, 5, 6, 8, 11 & 12)

  1. [83]
    By these grounds the appellant contends that the learned magistrate wrongly stopped or refused the appellant’s wife giving evidence, and correct mistaken documents, and thereby denied him the opportunity to present his case.
  1. [84]
    The appellant did not file and serve any affidavit(s) of his wife, upon which he proposed to rely, in accordance with pre-trial directions. The respondent argues that any such evidence was inadmissible on the grounds of relevance, and hearsay. His wife was not employed on the farm, and made no direct contribution to the farm. However, she may have seen the appellant perform after hours work.
  1. [85]
    Procedural fairness ‘requires that a party to court proceedings be afforded the opportunity to present a case’.[23]In Jones v National Coal Board,[24]the English Court of Appeal said:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

  1. [86]
    In International Finance Trust Co Ltd v NSW Crime Commission,[25]Heydon J described the centrality of hearings in our justice system, this way:[26]

“... One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequence there generally should be a "hearing". A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At itboth parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.

One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi,it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory.

Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome.

“The person most likely to have thought of cogent considerations, and to know the relevant facts, is the person whose interests are in jeopardy, that is the party opposing the decision. Therefore we shall avoid bad decisions best if we ensure that each potential decision, before it is finally decided, is exposed to what is likely to be the strongest possible criticism of it.”

Thus, hearing both sides before deciding tends to quell controversies and discontents. As Megarry J said in John v Rees:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

Of the last sentence Lord Hoffmann has observed: “Most lawyers will have heard or read of or even experienced such cases but most will also know how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not refuted.” Perhaps both Megarry J and Lord Hoffmann are guilty of a little exaggeration. But even if Lord Hoffmann’s reasoning is completely correct, it does not destroy Megarry J’s point.”

  1. [87]
    In Aon Risk Services Australia Limited v Australian National University,[27]the High Court affirmed that the just resolution of proceedings remains the paramount objective and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case.[28]
  1. [88]
    However, none of the decisions usurp the proper adherence to the rules of evidence to allow a party the opportunity to present inadmissible irrelevant, and hearsay evidence.
  1. [89]
    At the trial, the appellant sought to call his wife to give evidence without any notice to the respondent by way of affidavit evidence as directed. The parties were provided an ample opportunity by directions to file and serve all relevant evidence they intended to rely upon at the hearing. The learned magistrate refused the admission of the evidence by ruling during the hearing that:[29]

“BENCH: Directions were given in respect of the conduct of this hearing and those directions were to the effect that evidence of the witnesses would be given by way of an affidavit or sworn – a statement be sworn at the hearing. But your evidence is ---

PLAINTIFF: She can do a sworn statement here at the hearing if that’s not a problem

BENCH: The purpose the court gives – the reasons the court gives directions is so parties can be prepared. If I was to give consideration to allowing your wife to make some sort of statement today, and file it, I’d then be giving consideration, no doubt, to requests to have the proceedings adjourned. The reasons for giving the directions was so that the matter would be prepared for trial today. You have filed no other evidence. The evidence which your case relies upon is the affidavit that you filed; that affidavits that you have filed and that’s it.

PLAINTIFF: I guess, your Honour, if you not allow it then we just go further and then I would like to – if I’m allowed to present my case [indistinct] I can’t take her as a witness, then we go to the next step.

BENCH: Well, you have – you have already presented your case. You have filed your affidavits and you’ve opened yourself up to cross-examination and you’ve answered the questions; that is your evidence.

PLAINTIFF: So since I was not allowed to even speak out my point and my perspective on things, like, overtime, because I wasn’t even allowed to answer questions, when do I have the point to present my reasons with the documents I handed in and my understanding why I’m applicable for overtime.

BENCH: You have the opportunity to address the court in respect of the evidence in due course, but that’s not an opportunity for you to give evidence. You’ll have the opportunity to address the court on the evidence in due course. Your evidence is as contained in your affidavits. That’s the way the trial is being conducted.”

  1. [90]
    The nature and scope of the evidence the appellant hoped to adduce from his wife was not the subject of any notice and was ill defined at the trial and on the appeal. The respondent did not employ her, but she lived with and observed the respondent’s working habits. The exchange with the trial magistrate at least exposed the appellant’s confusion about the sequence of the hearing, and the time to address on his case based in the evidence by affidavit “handed in” and testimony. But he seemed well attuned to the need to have provided evidence before the hearing and did not press the point about his wife’s testimony.
  1. [91]
    The appellant has not sought to produce any new evidence of his wife on the appeal, and I’m not in a position to assess it admissibility or probative value. Instead, other fresh evidence was allowed at the appeal, which overcome the other matters of correction relied upon in these grounds of appeal.
  1. [92]
    Therefore, these grounds will fail.

The Magistrate made findings, which were not open on the evidence

(Grounds 1, 8, 12 & 14).

  1. [93]
    The appellant asserts that the trial magistrate erred in law by making findings that were not open on the evidence provided for at trial. He points to the following paragraphs in the decision:
  1. [11]
    Mr May’s testimony was discredited at trial under cross-examination by Mr Sheridan and by the oral evidence of other witnesses.
  2. [12]
    …
  3. [13]
    It is unclear from the evidence that statements made by Mr May in his affidavit evidence are untrue. By way of example: at paragraph 9 of the affidavit of Manuel May sworn on the 15 June 2016 and filed also on that date Mr May say’s “28-8-2015 Tony agrees to pay my accumulated and claimed overtime via email (attachment 42 email: 28.8.2015)”. Under cross-examination Mr May admitted that attachment 42 made no reference to this, and was not evidence of Mr Chiefari agreeing to pay accumulated and claimed overtime at all.
  4. [14]
    In addition to the matters referred to by Mr Sheridan in his outline of argument at paragraphs 32 to 47 the evidence also does not support Mr May’s claim as stated in his affidavit that he was required to supervise ten people. The evidence simply does not support such a finding.
  5. [15]
    Brendon Jenkins provided an affidavit and was cross-examined at the hearing by Mr May. Essentially Mr Jenkins said “I never saw you out there doing any of that sort of stuff”.
  6. [16]
    Warren Clarke provided an affidavit and was cross-examined at the hearing by Mr May. Mr Clarke confirmed that it was not the habit to work overtime and in fact Mr May had told workers that if they worked more than the scheduled 38 hours per week they would not be paid and would need to take time off in lieu.
  7. [17]
    Colin Eparaima provided an affidavit and was cross-examined at the hearing by Mr May. He confirmed that overtime was worked but not claimed. Mr May asked Mr Eparaima whether he had seen him doing work to which Mr Eparaima replied “a very small part. I had never seen you at the farm you would unlock in the morning and return in the afternoon to relock”.
  8. [18]
    …
  9. [19]
    I accept the evidence of Mr Chiefari, Mr Jenkins, Mr Clarke and Mr Eparaima and Ms Kim.
  10. [20]
    The farm was a very small plot to be developed over time to provide fresh produce for the sale by Top Class through its market outlet. I accept Mr Chiefari’s evidence that the project was a complete agricultural and financial failure with expenditure of something in the order of $300,000 over six months for no return.
  11. [21]
    As a consequence of the false statements made in Mr May’s affidavit and the lack of confirmation from farm workers as to his involvement in the farm I find the evidence of Mr May is discredited to the extent that I cannot rely on it.
  12. [22]
    It is apparent Mr May’s duties were fluid and flexible and may over the duration be described as farm manager; a position which I find he did not fulfil with any degree of competence.
  13. [23]
    Mr May has failed to satisfy me that his employment was regulated by a modern award. I find that the terms and conditions of his employment are as contained in the written employment agreement.
  14. [24]
    I find that the employment agreement makes no provison for the payment of overtime.
  15. [25]
    Mr May has failed to satisfy me that he is entitled to overtime, meal allowance, supervision allowance, or protective clothing allowance. These claims are dismissed.
  16. [26]
    …
  17. [27]
    …
  18. [28]
    Clearly the legalities of the difference entities has been lost on the parties. It is clear from the evidence that Mr May authorised Top Class to withhold monies owing to him in lieu of payment of money owing by him to Fruit City.
  19. [29]
    …
  20. [30]
    Mr May’s employment was terminated on the 17 November 2015. He has been paid up to the 11 November. He is entitled to one weeks pay the amount owing for the week 12 November to 18 November amounts to $829.23 plus overtime allowance of $845.00. The claim for wages beyond 18 November to 2 December (other than being in lieu of notice) is dismissed.
  21. [31]
    Top Class admits liability for accumulated annual leave of 82 hours. I accept the evidence of the final pay slip where the unused holiday leave/pay is calculated at $2,557.50.for 82.77 hours.
  1. [94]
    Having regard to my discussion above, it seems to me each of these findings were open on the evidence for the learned magistrate to find that the appellant was not authorised to work overtime, nor otherwise entitled as he found. These grounds will also fail.

The Magistrate failed to give adequate reasons for his findings. (Ground 3)

  1. [95]
    The appellant contends in this appeal that the learned magistrate failed to give adequate reasons for his findings, which rendered them implausible.
  1. [96]
    The Court of Appeal said in Drew v Makita (Australia) Pty Ltd:[30]

“[59]  The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons.’  For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:

‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’

[60]  McHugh JA's view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but "… it is necessary that the essential ground or grounds upon which the decision rests should be articulated.’”

  1. [97]
    The learned magistrate’s reasons reveal his analysis of the evidence and findings of the factual foundation of the appellant’s claim, and in doing so, he reached the conclusion rejecting the appellant claim for statutory entitlements. His Honour’s reasons were adequate given the scope and nature of the dispute and he was not required to descend into greater detail.
  1. [98]
    This ground of appeal also fails.

The Magistrate was biased and/or based his decision on personal whim. (Grounds 8, 13 & 14)

  1. [99]
    In Grounds 8, part of 13, and 14, I understand the appellant to contend that the magistrate was so affected by bias that he found againstthe appellant. The respondent submits that no perceived or actual bias can be detected in the hearing or in the magistrate’s decision.
  1. [100]
    Bias is ordinarily a question of actual or apprehended bias as a precursor to disqualification of the judicial officer. The test for determining whether a judicial officer should have disqualified himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[31]It is not clear whether the appellant is relying upon bias in this sense, or whether he is simply complaining about the form of His Honour’s findings (eg. “I accept …) and the ultimate adverse outcome.
  1. [101]
    It is often difficult for judicial officers to ensure the integrity of proceedings which involve a litigant appearing in person. This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction. The High Court in Neil v Nott, held that:[32]

“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy”.

  1. [102]
    In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[7]
  1. [103]
    I have considered the transcript of the hearing, the evidence adduced and the magistrate’s decision. During the course of the hearing, the magistrate seemed both fair and proper in the circumstances. It seems to me that the magistrate was remarkably patient and cognisant of the appellant’s unrepresented state. He made appropriate allowances in the conduct of the hearing and afforded the appellant procedural fairness.
  1. [104]
    I cannot find any basis or reasonable justification for the appellant’s assertions of bias, and I reject them. It seems to me that this ground of appeal based on judicial bias is misconceived and also fails.

Conclusion

  1. [105]
    In the absence of any identifiable error, I confirm the decision of the trial magistrate and dismiss the appeal.
  1. [106]
    Accordingly, I will order:
  1. Appeal dismissed.
  1. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, the appellant will pay the costs of the respondent of the appeal to be assessed on the standard basis.

Footnotes

[1]Decision [25]

[2]Decision [16], [17]. Amd [35].

[3]District Court of Queensland Act 1967 (Qld), s 113.

[4]Uniform Civil Procedure Rules 1992 (Qld), r 765(1).

[5]Warren v Coombes (1979) 142 CLR 531, 537-541.

[6]UCPR, r 766(1)(c).

[7]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124.

[8]Allesch v Maunz (2000) 203 CLR 172, [22] – [23].

[9]Suttor v Gundowda Pty Limited (1950) 81 CLR 418, 438; Coulton v Holcombe (1986) 162 CLR 1, 8-9; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [51].

[10]T1-9/5-25

[11]Devries v Australian National Railways Commission  (1993) 177 CLR 472, 479.

[12]Fox v Percy (2003) 214 CLR 118, [26]-[30].

[13]For example, Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[14]Warren v Coombes (1979) 142 CLR 531, 551 affirmed in Fox v Percy (2003) 214 CLR 118, 127 [25] per Gleeson CJ, Gummow J and Kirby J.

[15]Fair Work Act 2009 (Cth), s 62

[16]Affidavit Cheifari 20 July 2015, paras. 77 - 83

[17]Affidavit Cheifari 20 July 2015, paras. 83

[18]Affidavit Chiefari 20 July 2015, exhibit TC-14, pp 74 & 75

[19]Affidavit Chiefari 20 July 2015, exhibit TC-8, p 57

[20]Affidavit Cheifari 20 July 2015, exhibit TC-13, p 73

[21]Decision, [11] – [22]

[22] Affidavit Chiefari 20 July TC-9 at page 58

[23]MBL v JP [2011] QCA 220 at [22], citing Kioa v West (1985) 159 CLR 550 at 582; 615.

[24]Jones v National Coal Board [1957] 2 QB 55, 67 per Denning, Romer and Parker LJJ.

[25]International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319.

[26]International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [141]-[143].

[27]AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[28]  Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, [101] citing AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[29]T1-46/10-42.

[30][2009] 2 Qd R 219, [59]-[60].

[31]Johnson v Johnson (2000) 201 CLR 488 at [11].

[32]Neil v Nott (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[7]  Gallo v Dawson (1990) 93 ALR 479 at [481] per McHugh J.

Close

Editorial Notes

  • Published Case Name:

    May v Top Class Fruit Supply Pty Ltd

  • Shortened Case Name:

    May v Top Class Fruit Supply Pty Ltd

  • MNC:

    [2017] QDC 327

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    15 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
1 citation
Jump To
Cite 1 - (2000) 203 CLR 172
Allianz Australia Insurance Ltd v Mashaghati[2018] 1 Qd R 429; [2017] QCA 127
2 citations
Jump To
Cite 1 - [2017] QCA 127
Cite 2 - [2017] QCA 127
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
3 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Cite 3 - (2009) 239 CLR 175
Coulton v Holcombe (1986) 162 CLR 1
2 citations
Jump To
Cite 1 - (1986) 162 CLR 1
Cite 2 - (1986) 162 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
3 citations
Jump To
Cite 1 - (1993) 177 CLR 472
Cite 2 - (1993) 177 CLR 472
Cite 3 - (1993) 177 CLR 472
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 219
Cite 2 - [2009] 2 Qd R 219
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
2 citations
Jump To
Cite 1 - (2008) 234 CLR 124
Cite 2 - (2008) 234 CLR 124
Fox v Percy (2003) 214 CLR 118
4 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Cite 4 - (2003) 214 CLR 118
Gallo v Dawson (1990) 93 ALR 479
2 citations
Jump To
Cite 1 - (1990) 93 ALR 479
Cite 2 - (1990) 93 ALR 479
International Finance Trust v NSW Crime Commission (2009) 240 CLR 319
3 citations
Jump To
Cite 1 - (2009) 240 CLR 319
Cite 2 - (2009) 240 CLR 319
Cite 3 - (2009) 240 CLR 319
Johnson v Johnson (2000) 201 CLR 488
2 citations
Jump To
Cite 1 - (2000) 201 CLR 488
Cite 2 - (2000) 201 CLR 488
Jones v National Coal Board (1957) 2 QB 55
2 citations
Jump To
Cite 1 - (1957) 2 QB 55
Cite 2 - (1957) 2 QB 55
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
MBL v JP [2011] QCA 220
2 citations
Jump To
Cite 1 - [2011] QCA 220
Cite 2 - [2011] QCA 220
Neil v Nott (1994) 121 ALR 148
2 citations
Jump To
Cite 1 - (1994) 121 ALR 148
Cite 2 - (1994) 121 ALR 148
Suttor v Gundowda Pty Ltd (1950) 81 C.L.R., 418
2 citations
Jump To
Cite 1 - (1950) 81 C.L.R., 418
Cite 2 - (1950) 81 C.L.R., 418
Warren v Coombes (1979) 142 CLR 531
4 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531
Cite 3 - (1979) 142 CLR 531
Cite 4 - (1979) 142 CLR 531
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
1 citation
Jump To
Cite 1 - (2003) 200 ALR 447
Whisprun Pty Ltd v Dixon (2003) 200 ALR 44
1 citation
Jump To
Cite 1 - (2003) 200 ALR 44

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.