Hardy Bros Civil Constructions Pty Limited & Anor v Williams [2006] NSWSC 40

New South Wales Supreme Court

CITATION : Hardy Bros Civil Constructions Pty Limited & Anor v Williams [2006] NSWSC 40

HEARING DATE(S) : 8 February 2006

JUDGMENT DATE : 15 February 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The judgment and orders made by the Local Court are set aside; the matter is remitted to the Local Court for determination in accordance with law; the defendant is to pay the costs of the summons; if so entitled, the defendant is to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS : Proceedings dealt with by magistrate in chambers on written statements and submissions - no judgment - reasoning process to be discerned from court letter signed by registrar and contents of worksheet - failure to adequately disclose reasoning process and miscarriage of justice.

Hardy Bros Civil Constructions Pty Limited (First Plaintiff) PARTIES : Hardy Bros Nominees Pty Limited t/as Hardy Bros Civil Constructions Partnership (Second Plaintiff) Garry Williams (Defendant)

FILE NUMBER(S) : SC 14826/05

COUNSEL : Mr S Docker (Plaintiffs) Mr S Maybury (Defendant)

SOLICITORS : Carmody Crampton (Young) (Plaintiffs) McCabe Partners (Young) (Defendants)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 32/2005

LOWER COURT JUDICIAL OFFICER : Moon LCM

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

15 February 2006

14826 of 2005 Hardy Bros Civil Constructions Pty Limited & Anor v Garry Williams

JUDGMENT 1 His Honour: The defendant alleged that he was an employee of the plaintiffs. He made a claim for unpaid wages. The claim was in respect of a sum of $20 per day worksite allowance for the period from 7 March 2000 to 18 February 2004 (1427 days). 2 Proceedings were brought in the Local Court at Young. A contested hearing took place on 20 September 2005. 3 There was an admission that the defendant was employed by the first plaintiff for the period from 8 May 2001 to 18 February 2004 as a grader operator and there was a denial that the defendant was ever employed by the second plaintiff. Save for an admission which related to a period from 14 February 2001 to 30 October 2001 at "The Visy site", there was a denial that the defendant was usually employed as a supervisor and that he was entitled to any further payments. There was an admission that he had been first employed by a related company which went into liquidation. 4 The plaintiffs bring an appeal to this court. There are two avenues available to the plaintiffs. There is an appeal as of right where there has been error in point of law. Leave may be granted where there is a question of mixed law and fact. 5 There are many grounds of appeal. These are set forth in an amended summons filed on 14 November 2005. Certain of them are said to give rise to an error of law ((a), (b), (c) and (e) of paragraph 4). Certain of them were said to require leave because they threw up mixed questions of law and fact ((a) of paragraph 4). Certain were abandoned ((f), (g) and (h) of paragraph 4). One was not abandoned, but it was clearly misconceived ((i) of paragraph 4). 6 The case management of the proceedings involved the giving of directions (inter alia, requiring the filing and exchanging of evidence). Written statements were filed and exchanged. 7 There was no hearing as such. Presumably, by way of consensus, the course was adopted of the parties relying on the written statements and providing written submissions. The Magistrate was left to determine the matter in chambers. 8 Whilst this manner of disposition of the proceedings may have been seen as being in the interests of economy and expedition, it transpired that it was inappropriate for the determination of the many matters in issue. 9 The Magistrate was left to determine those issues having before him only a number of witness statements and brief submissions from the solicitors for the parties. 10 The Magistrate was confronted with conflicting evidence. There was conflict between what the defendant said and what was said by witnesses on behalf of the plaintiffs. What was said by the defendant contained inconsistencies (including as to the number of days worked by him). Indeed, it could be generally said that the evidence threw up a confused state of affairs. 11 It was in this context, that the Magistrate was placed in the invidious position of fact finding (which involved making findings on reliability and credibility). It was crucial that he made findings of fact on many issues. The absence of cross-examination presented him with an onerous task. 12 For the purposes of disposition of this appeal, it is unnecessary to embark on the task of reciting and analysing evidence. It suffices to briefly mention a few matters. 13 It appears that the defendant was first employed by Hardy Bros Earth Moving Pty Limited (subsequent to an offer made by letter on 4 August 1999). The evidence seems to be that the employment commenced on 12 March 2000. He continued to be employed by that company until 7 May 2001 (when it went into voluntary liquidation). Thereafter, although he continued in employment, he was paid by the first plaintiff. There is evidence that staff were transferred to the first plaintiff and employed in the same capacity and on the same terms. An application for employment was in evidence. There is evidence that the plaintiffs carried on business under the name of Hardy Bros Civil Constructions, with the first plaintiff being the employer of staff. The defendant gave evidence of having a business card representing him as a site supervisor for Hardy Bros Civil Constructions. 14 There was evidence that a supervisor's allowance was only paid on days actually worked and that the defendant worked for 1028 days only. It has been submitted that of those days 305 were worked for the related company. 15 The Magistrate (who appears to have been Moon LCM) determined the proceedings in chambers. The court has before it the documentation presumably created by him (the documentation is an annexure to an affidavit sworn by Keith Patrick Carmody on 27 October 2005. The first page of the documentation presents as a court record of the proceedings. The second page is in handwriting (presumably that of the Magistrate) and has been described as his "working sheet". This was not material that was forwarded to the parties following the making of the decision. 16 The parties received a letter dated 20 September 2005 signed by the Registrar. It contained, inter alia, the following:- Please note that at the hearing on 20/09/2005 the Court made the following order in respect of the above matter: JUDGMENT FOR PLAINTIFF CLAIM: $20,385.71 (after tax has been deducted) INTEREST: $939.98 COURT COSTS: $202.00 PROF COSTS: as agreed or taxed. TOTAL: $21, 527.69 plus prof costs. TO BE PAID WITHIN 28 DAYS. FINDINGS: Satisfied on balance of probabilities Plaintiff's claim made out. Accept plaintiff's version of conditions of employment. Satisfied terms and conditions accepted by both parties. Accept Plaintiff employed as business card describes him as "Site Supervisor". Accept sum as claimed. Not satisfied as to any set off. For any further enquiries please contact the above Court.