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Workplace Relations Act 1996

s.45 appeal against decision [PR925374]

issued by Senior Deputy President Drake

on 10 December 2002

Abdalla, Abraham


Abdalla, Abraham


Viewdaze Pty Ltd t/as Malta Travel







SYDNEY, 14 MAY 2003

Appeal against decision upholding motion to dismiss for want of jurisdiction pursuant to s.170CEA - determining whether a worker is an employee or an independent contractor - principles to be applied - non production of documents covered by summons - proper approach to be taken - manner of taking evidence from parties who appear in person where facts are contested - parties appearing in person should give evidence from the witness box.



[1] It is a matter of concern to us that this is the fourth hearing in relation to an application for relief made by Mr Abraham Abdalla under s.170CE of the Workplace Relations Act 1996 (the Act). These hearings have all related to a preliminary jurisdictional objection taken by the Respondent, Viewdaze Pty Ltd. What could be termed the merits of the s.170CE application and the alleged termination of employment have not yet been heard.

[2] The application was filed on 24 April 2002. On 12 July 2002 Foggo C dismissed the matter on jurisdictional grounds. Mr Abdalla appealed that decision. On 24 September 2002 a Full Bench of this Commission allowed the appeal1 and determined that the application would be directed to a member of the Commission to rehear.

[3] The matter was referred to Drake SDP, who reheard the matter and handed down a decision2 on 10 December 2002 dismissing the s.170CE application on jurisdictional grounds. Mr Adballa appealed against this decision, and the appeal was before us on 17 February 2003.

[4] We first note that the Bench said in its 24 September 2002 decision that3:

[5] Notwithstanding this suggestion both parties continued to represent themselves in the subsequent proceedings before Drake SDP and before us. This has in both cases made the determination of the matter more difficult, and has hindered the parties in the presentation of their cases.

[6] This is particularly the case given the nature of these proceedings. This matter concerns a relatively new procedural provision of the Act introduced in 2001, s.170CEA, a provision which, in its application, raises particular difficulties which perhaps have not been well understood. It also concerns a jurisdictional objection which raised difficult issues of fact and law.

The Decision Under Appeal

[7] As directed, Drake SDP heard the matter and on 10 December 2002 her Honour delivered a decision just over one and a half pages in length finding for the respondent and dismissing Mr Abdalla's application on jurisdictional grounds. Her Honour's consideration of the evidence and analysis of the issue for determination was as follows:

The Evidence Before Drake SDP

[8] Mr Abdalla pointed to the following items of evidence in support of his oral evidence as to his status as an employee of Viewdaze Pty Ltd:

[9] It was common ground between the parties that Mr Vella did not receive a wage but rather was paid by commission: the commission earned on bookings placed by Mr Abdalla was split 80% to Mr Abdalla and 20% to Viewdaze Pty Ltd. Relevant to the issue of Mr Abdalla's employment status Mr Vella's evidence was short in compass:4

[10] Mr Vella tendered a form entitled "Payroll Authorisation - Banking Details" completed and signed by Mr Abdalla which nominates a bank account with the name "Univoyages" and concludes with the declaration: "I hereby agree and authorise the company to credit my Wages, Salary/Commission to my bank account each day." It might also be noted that a schedule of payments was tendered by the respondent (not apparently disputed by Mr Abdalla) which recorded total payments of Mr Abdalla in the six months prior to his termination of about $8,500.

Leave to Appeal

[11] An appeal to the Full Bench lies only by leave of a Full Bench: s.45(1). A Full Bench must grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s.45(2). Otherwise, a grant of leave is governed by the conventional considerations for the grant of leave to appeal by an appellate court which include whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice may result if leave is refused5. However, "[t]hese `grounds' should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave" although "[i]t will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error"6.

[12] Where an appeal turns on jurisdiction the Full Commission will be inclined to grant leave to appeal. The public interest demands that the Commission uphold its jurisdiction where it exists and declines jurisdiction where it does not exist. However, a grant of leave is not automatic in such cases7. Thus, in Sammartino v Mayne Nickless a Full Bench, granting leave to appeal from a decision finding that an applicant was not an employee, noted8:

[13] The decision below makes no mention of any authority or principle by reference to which the conclusion that Mr Abdalla was not an employee was reached. It makes no reference to the evidence referred to in items (2), (3), (4), (5) or (6) in paragraph [8] above. In the circumstances, we conclude that the decision below is attendant with sufficient doubt to warrant its reconsideration. Accordingly, in the exercise of our discretion we grant leave to appeal in relation to the grounds directed towards the finding that was there was no employment relationship between the parties, namely grounds 1, 6, 7, 10, 12, 14, 15, 16 and 17. We address the remaining grounds below. Suffice it to say, we are not persuaded that leave to appeal ought be granted in relation to those grounds.

Role of the Full Bench on Appeal

[14] The decision of the High Court in Coal and Allied Operations Pty Ltd Australian Industrial Relations Commission9 makes it clear that an appeal under s 45 "is properly described as an appeal by way of rehearing", that the powers under s 45(7) "are exercisable only if there is error on the part of the primary decision-maker" and that this is so "regardless of the different decisions that may be the subject of an appeal under s 45".

[15] The Commission's jurisdiction under s.170CE of the Act cannot be exercised unless the application has been made by "an employee whose employment has been terminated by the employer"10. The issue raised by the respondent's motion under s.170CEA before the Member below was one of jurisdictional fact. As such, the Full Bench on appeal is concerned with whether or not the Member below reached the right conclusion as to the existence or otherwise of the jurisdiction fact, not simply with whether or not the decision was reasonably open to the Member11. Although, that task is to be undertaken on the basis of the primary facts as found by the Member below (and any findings as to credit) unless such findings are open to challenge on the usual appellate principles12.

Principles relevant to determining whether an employment relationship exists

[16] In reading her decision, it is tolerably clear that her Honour's primary focus was on the issue of control and the apparent lack of control implicit in Mr Abdalla's approach to his work.

[17] In Bearings Incorporated (Australia) Pty Ltd13 a Full Bench of this Commission reviewed the relevant law at some length and concluded14 that, despite various criticisms, the Commission is obliged to follow the approach laid down by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd15 (Brodribb).

[18] The traditional approach to characterisation was to apply a control test. In Brodribb Mason J, with whom Brennan J16 and Deane J17 relevantly agreed, addressed the factor of control, and issue of characterisation generally, in the following way18:

[19] Mason J returned to the issue to state19:

[20] His Honour also indicated that the power to delegate (in the sense of the capacity to engage others to do the work) is an important factor in deciding whether a worker is an employee or independent contractor20.

[21] In their joint judgement their Honours Wilson and Dawson JJ said21:

[22] In many cases the application of the principles in Brodribb will not necessarily yield a clear answer. Typically this will be because there are `indicia' present which point both ways. The problem was acknowledged by Wilson and Dawson JJ in Brodribb22:

[23] In Sammartino the Full Bench of the Commission said23:

[24] In Re Porter; Re Transport Workers Union of Australia24 Gray J observed perceptively25:

[25] In Treloar v Bearings Incorporated (Australia) Pty Ltd26 the Full Bench, after noting various judicial and academic criticisms of the conventional approach to distinguishing between employees and independent contractors, concluded27:

[26] While there is no reference in Brodribb to "matters of economic reality including the level of economic dependence of one party upon another", the subsequent decision of the High Court in Hollis v Vabu Pty Ltd28 may be seen as providing the necessary content to which the notion of "economic reality" is directed.

[27] In Hollis v Vabu the High Court was concerned with the vicarious liability of a city courier company in relation to an injury caused by the negligent riding of one of its bicycle couriers. The New South Wales Court of Appeal in earlier unrelated proceedings had held that the Vabu couriers were independent contractors rather than employees. The Appellant in Hollis v Vabu (having accepted at the intermediate appellate stage the binding authority of that earlier Court of Appeal decision) had argued that the doctrine of vicarious liability should be extended to agents. The High Court granted leave to the Appellant to argue that the Vabu couriers were employees. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in a joint judgment overruled the earlier Court of Appeal decision and held that the bicycle courier was an employee with the consequence that Vabu was vicariously liable for the negligence of its employee. McHugh J was disinclined to overturn the finding that the courier was not an employee. His Honour observed29:

[28] Instead his Honour held that the doctrine of vicarious liability should be expanded30:

[29] McHugh J concluded that in the specified circumstances Vabu was liable for the negligent acts of the courier as an agent acting within authority. It is important to note this approach because it highlights the apparent extension of traditional principles for distinguishing between employees and independent contractors implicit in the joint judgment.

[30] It is necessary to set out a lengthy passage from the joint judgment31:

[31] Their Honours approached the position of the Vabu couriers in the following way32:

[32] Their Honours then identified six aspects of the facts supporting their conclusion that the bicycle couriers were employees including "the matter of deterrence" referring to "the knowledge of Vabu as to the dangers to pedestrians presented by its bicycle couriers and the failure to adopt effective means for the personal identification of those couriers to the public".33

[33] We think it particularly significant that the joint judgment endorsed the proposition that "the distinction between an employee and an independent contractor is `rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'".34 In paragraph [47] their Honours dealt with the issue in the case before them by in essence asking whether, "viewed as a practical matter" the workers in question were "running their own business or enterprise" with "independence in the conduct of their operations"35.

Summary of the law on distinguishing employees from independent contractors

[34] Following Hollis v Vabu, the state of the law governing the determination of whether an individual is an employee or an independent contractor may be summarised as follows:


[35] It is useful to begin by summarising the various matters relevant to the characterisation in the present case. The matters in favour of Mr Abdalla being an employee of the Respondent are as follows:

[36] The matters suggesting that the relationship between the parties was one of independent contract are:

[37] We turn now to consider the terms of the contract and weight to be given to the various factors. In so doing we note that Drake SDP made a credit based finding that she preferred the evidence of Mr Vella where it conflicted with the evidence of Mr Abdalla. We see no basis within the relevant principles to interfere with that finding.

The Contract

[38] The express written terms of the contract between the parties are contained in the letter of 1 July 1998 bearing the subject heading "Employment Contract". That document points in both directions. In favour of the relationship between the parties being one of employment, the letter refers to the Respondent's "pleasure in confirming [Mr Abdalla's] employment with Malta Travel Service" and refers to the "employment with this agency" being on the "terms and conditions contained in this letter" and to Mr Abdalla's "employment" being "ongoing" from the previous owner of the business. On the other hand, the letter describes Mr Abdalla's position as "Independent agent" and his "duties and responsibilities" are "to meet the requirements of Malta Travel Service as an "independents [sic] agent". These references to Mr Abdalla being "independent" must be given some meaning and content. On the evidence before Drake SDP, the only sensible meaning to be given to that word is that the parties intended65 that Mr Abdalla had independence in the extent of work that he performed and the manner in which he performed that work.


[39] The key evidence of Mr Vella in relation to control was that:

The absence of control indicated by this and other evidence given by Mr Vella is a significant indicator that the relationship between the parties was one of independent contract. Moreover, it is consistent with the references to "independent" agent in the letter of 1 July 1998.

Mode of Remuneration

[40] The contract provides that Mr Abdalla was "not on a gross weekly salary" but rather that he would be "paid a monthly commission." The fact that Mr Abdalla did not receive salary or wages but was paid by commission cannot be regarded as a particularly significant factor in the present case (notwithstanding that, at least for a period of some months, Mr Abdalla was paid a minimum amount of $1,000 per month irrespective of sales). In the modern economy many workers who can properly be characterised as employees earn remuneration on the basis of commission. For example, the couriers in Hollis v Vabu Pty Ltd received no wage or salary66.

[41] The fact that Mr Abdalla nominated as an account for the payment of commission, an account styled "Univoyages" (a business name which on its face has travel industry connotations) points towards Mr Abdalla operating on the basis that he was conducting an independent business.

Payment of Group Tax etc.

[42] The lodgement of an ATO employment declaration, the deduction and remittal of group tax and issuing of group certificates and the apparent payment of superannuation contributions on Mr Abdalla's behalf are the strongest features suggesting a relationship of employment. However, they cannot be seen as determinative. A respondent may carelessly or mistakenly proceed on the basis that a worker is an employee when on a true analysis the relationship is one of independent contract. The lodging of an employment declaration, the deduction of group tax and the issuing of group certificates in such circumstances will simply be in error.

Other Indicia

[43] A number of the `indicia' referred to in the authorities have no application or are neutral in the present case.

[44] The fact that Mr Abdalla used the Respondent's office and facilities when he was working is a matter of relatively minor significance given the nature of the work involved.

[45] While we agree with Mr Abdalla that the operation of the Travel Agents Act 1986 (Vic) is a relevant matter to consider, it is a minor matter and does not weigh strongly in favour of a conclusion that Mr Abdalla was an employee67. We are prepared to assume that Mr Abdalla is correct when he contends that, given he held no license, it would have been an offence for him to have acted as a travel agent otherwise than as an employee of another license holder.68 However, Mr Abdalla had himself drafted the letter of 1 July 1998 which creates the appearance that he was an employee (possibly so as to avoid this very exposure). Notwithstanding those appearances, the question before us turns on a substantive consideration of the totality of the relationship between the parties. Mr Abdalla's potential exposure under the Travel Agents Act 1986 (Vic) has no bearing upon the presence or absence of other relevant indicia.

[46] Mr Abdalla's inclusion as a "consultant" in the Respondent's entry in an industry directory and the fact of business cards identifying Mr Abdalla as associated with the Respondent adds little to the argument. We note that the term "consultant" (the term appearing in the industry directory) is ambiguous and is equally consistent with a relationship of independent contract.

[47] The assertions by Mr Abdalla in his evidence that he was an employee carry no weight: they are assertions of a conclusion of mixed law and fact and are not probative. The bookkeeper's letter has little weight for the same reason. On its face, that letter was prepared in contemplation of the proceedings and can represent nothing more than the bookkeeper's (non-expert) understanding or belief as to Mr Abdalla's legal status.

[48] Similarly, the assertions by Mr Abdalla in his evidence that the parties had agreed he was an employee have little probative value in the present case. As outlined above, the task of distinguishing between employment and independent contract is one of characterisation turning upon matters of substance (including substantive contractual rights and obligations) rather than form: labels applied by the parties cannot alter the substantive character of the relationship.


[49] In this case the various indicia point in both directions such that the case falls close to the ill-defined dividing line between employment and independent contract. In our view, the absence of control emerging from the evidence is a matter to which substantial weight should be attached in the circumstances of the present case. On balance, the various factors to which we have referred tend more strongly to a characterisation of independent contract. The case is by no means clear cut and, accordingly, we must consider whether it can be said that, viewed as a practical matter, Mr Abdalla was or was not running his own business or enterprise with independence in the conduct of his business operations as distinct from operating as a representative of Viewdaze with little or no independence in the conduct of his operations. On the evidence before Drake SDP, we conclude that, viewed as a practical matter, Mr Abdalla was in substance running his own business enterprise with independence in the conduct of his operations. He was entirely free to work as little or as much as he liked. Consistent with a contractual right to act as an "independent" agent, he was not subject to any substantial measure of control by the Respondent in relation to his attendance at work or the manner in which he performed his work. The evidence suggests that his work involved bringing his own business to the Respondent's agency (rather than transacting business allocated to him by the Respondent) and retaining the vast bulk of the commission generated from that business. The primary purpose of the relationship between the parties seems to have been to provide Mr Abdalla with a convenient vehicle through which to transact the business that he generated through his own sources and contacts with Viewdaze in return taking a small portion of the commissions thereby generated. It follows that, on the evidence before Drake SDP, the proper characterisation of the relationship between the parties is one of independent contract.

Other Grounds of Appeal

[50] In relation to the remaining grounds of appeal we have determined that, in the exercise of our discretion, leave to appeal should be refused. For the reasons that follow we are not persuaded, in relation to those grounds, that the decision of Drake SDP is attended with sufficient doubt to warrant its being reconsidered by the Full Bench and we are not persuaded that substantial injustice will result if is leave is refused. In our view, the matter is not of such importance that, in the public interest, leave to appeal should be granted pursuant to s.45(2) of the Act in relation to those remaining grounds of appeal.

Grounds 2, 3 and 21

[51] In the absence of a writ of prohibition or other order issued by the High Court or the Federal Court of Australia prohibiting or restraining the Commission from further hearing or determining a matter, the Commission is obliged to discharge its statutory functions and to hear and determine matters regularly brought before it. In the present case Drake SDP was entitled to proceed to issue her decision. There is no substance in grounds 2, 3 and 21.

Grounds 4 and 11

[52] We regard the grounds alleging bias or apprehension of bias against the Senior Deputy President as entirely lacking in merit. There is nothing in transcript which would sustain a finding of apprehension of bias. The Appellant was unable to identify any specific matters which we would regard as making out an apprehension of bias within the meaning of the authorities. We have dealt with the contract above.

Grounds 5 and 8

[53] The applicant submitted a summons to the respondent requiring the production of 20 listed categories of documents. The respondent did not produce documents falling within many of those categories. In respect of some categories, the respondent produced only some of the documents falling within the categories. It is tolerably clear from the transcript that the Respondent objected to the production of documents under the summons on grounds that equate to relevance (ie. lack of legitimate forensic purpose) and oppression. The Senior Deputy President went through each of the categories in the summons and adjudicated upon the question of whether the respondent ought be required to produce the documents in each category. The Respondent subsequently complied to some extent with the determination of the Senior Deputy President. When a party to an application requests the issue of a summons the Commission is usually not in a position to consider, at that time, whether the summons is unreasonable, oppressive or otherwise liable to be set aside. The rules do not provide a specific procedure for a challenge to a summons to a person to attend and produce documents. The procedure to be adopted by the Commission is its discretion: see s.110(2)(a). Given that a summons is issued by the Commission it is within the power of the Commission to absolve the recipient from the obligation to comply with some or all of the summons. Ordinarily the Commission will entertain an objection to production by the recipient of the summons and ordinarily it would apply the principles generally applicable to the setting aside of subpoenas in the Federal Court.

[54] In the present case, when the issue of compliance with the summons arose, the Senior Deputy President formed a judgment in relation to each category of documents as to whether or not the documents ought be produced or whether a more limited category of documents ought be produced. It appears that the Respondent still did not produce all documents covered by the revised categories. In so far as the Respondent failed to produce documents within categories in the summons that Drake SDP ruled should be produced the decision of the High Court in Commonwealth Bank of Australia v Quade69 is relevant. In that case the High Court unanimously upheld a decision of the Federal Court ordering a new trial in a case where it came to light after the verdict at first instance that the defendant bank had failed to produce relevant documents pursuant to an order for discovery and where it was assessed that the result "might" have been different if the bank had produced those documents on discovery. The High Court held:70

[55] In our opinion this principle is applicable to proceedings in the Commission where a party fails to produce documents covered by a summons and this fact is not apparent at the time of the hearing. Where the non-production of documents covered by a summons is apparent at the time of the hearing the member conducting the hearing ought address that issue. Usually this will involve requiring the defaulting party to produce the documents and considering whether the interests of justice require an adjournment to remedy any injustice which may arise from the other party not having had an adequate opportunity to consider the documents together with an order for costs against the defaulting party under s.170CJ(3). In the present case it appears that the Respondent did not produce all documents covered by the summons as modified by Drake SDP and in failing to address that issue her Honour erred. The principle in Commonwealth Bank v Quade is applicable in such circumstances.

[56] We are not persuaded that there is a real possibility that the documents which the Respondent did not produce under the summons as modified by Drake SDP would have altered the outcome of the matter. A consideration of the categories in the summons and the assertions of the Applicant in the transcript demonstrates that those documents could only have afforded further evidence that the Applicant was treated as an employee for administrative purposes, including payment of salary and associated benefits and in relation to access to third party booking systems. Even assuming that to be so, it does not alter the conclusion we have reached on the primary issue of characterisation of the relationship between the parties.

Ground 9

[57] The transcript shows that the procedure adopted by the Commission was to swear the respondent's representative, Mr Vella, and then permit him to "address" it (apparently from the bar table) about whether or not Mr Abdalla was an employee or not (PN 49). Mr Abdalla did not cross-examine Mr Vella. Ground 9 in the notice of appeal is directed to this aspect of the matter. In this context it is appropriate to note that the Commission said the following to the parties before any "evidence" had been given:

[58] While it is true that the Commission did not invite Mr Abdalla to cross-examine Mr Vella, at the conclusion of Mr Vella's "address" (in which a number of documents were tendered) it is clear from what is recorded at transcript PN22 that Drake SDP had informed Mr Abdalla of his entitlement to cross-examine Mr Vella. It is true that there was no clear termination point to Mr Vella's evidence: it simply trailed into a series of exchanges between the bench and the parties culminating in Her Honour's refusal to receive or take into account provisions of the Victorian Travel Agents Act 1986 (Vic) which Mr Abdalla sought to invoke in aid of his defence to the Respondent's motion. However, on balance we do not think that the Commission was in error in failing to remind Mr Abdalla as to his entitlement to cross-examine Mr Vella (although it would have been desirable for her Honour to have done so). This entitlement had been made clear to Mr.Vella at the commencement of the proceedings. On the other hand, we do think that the matter illustrates again the general desirability of requiring parties who appear in person in a case where factual matters are contested to give their evidence from the witness box so as to minimise the confusion between evidence and submissions, facilitate the taking of objections and to make plain the opportunity for cross-examination by the other party.

Ground 13

[59] In our opinion the cheque butts do not materially impact on the determination of the primary issue before the Commission. We have proceeded on the assumption that the further cheque butts if produced would have afforded further evidence that the Appellant was paid commission from which tax was deducted as if he were an employee.

Ground 18

[60] There is no basis for concluding that the Senior Deputy President failed to take account of the applicant's submissions dated 15 November 2002. The Commission is not obliged to undertake a view merely because a party requests that a view be undertaken. In the present case we have difficulty seeing how a view could rationally impact upon the determination of the issue in dispute. There was certainly no error in the present case in the Member below declining to conduct a view.

Ground 19

[61] "Good travel industry practice" was not a relevant consideration in relation to any of the issues before the Member below.

Ground 20

[62] Paragraph [14] of the decision amounts to a finding that if there was a relationship of employment between Mr Abdalla and Viewdaze Pty Ltd then that relationship had been terminated at the initiative of the employee because, as the Commission explained in paragraph [15], "the arrangements between the parties ceased as a result of Mr Abdalla's refusal to accede to repeated requests by the respondent and his financial representatives that he comply with the legislative requirements of the Goods and Services Tax". In our opinion this reasoning is flawed. No GST is payable by an employer in respect of remuneration paid to an employee. The "repeated requests" made by Viewdaze and its accountant related to information sought in order to pay Mr Abdalla as though he were an independent contractor. If (contrary to what we have found) Mr Abdalla was in fact an employee then those "repeated requests" were misconceived and his "refusal to accede" to them would have been entirely justified and cannot properly be characterised as involving a termination of employment at the initiative of the employee.

[63] However, having said this, the observations of the member below in paragraphs [14] and [15] of the decision were obiter and in no way material to her determination of the jurisdiction motion before her. We have considered the subject matter of that motion for ourselves and reached a conclusion adverse to the Appellant. Accordingly, paragraphs [14] and [15] of the decision below become irrelevant.

Ground 22

[64] This is not a proper ground of appeal.

Other Matters

[65] The earlier Full Bench decision in this matter stated (at [6]):

[66] In the first of these propositions we understand the earlier Full Bench to have been indicating that the Respondent bears what might be referred to as an `evidentiary onus'72 which it must discharge in order to put the Commission's jurisdiction in issue. That is, the Respondent must lead evidence or make specific factual submissions which, if accepted, would lead to the conclusion that the Commission had no jurisdiction. Once that `onus' has been discharged the `onus' passes back to the Applicant who bears the ultimate responsibility for establishing that the application is within jurisdiction. Where, on an motion under s.170CEA, the evidence before the Commission is insufficient to enable it to come to a conclusion favourable to the mover of the motion on an issue which has to be determined, the motion should be dismissed.73

[67] So much appears from the authorities relied upon by the earlier Full Bench. Thus, in Cabay the Full Bench stated:

The words with underline emphasis come from the decision of Williams SDP in Curran v Thomas Jewellers Aust. Pty Ltd (Print P6275, 28 October 1997). That same statement was adopted with approval by the Full Bench in Egan v Botanic Gardens Management Services Pty Ltd per Ross VP, Watson SDP and Holmes C, 28 March 2000, Print S4512.


[68] We grant leave to appeal in relation to grounds 1, 6, 7, 10, 12, 14, 15 and 16 of the notice of appeal but dismiss the appeal. We refuse leave to appeal in relation to the remaining grounds in the notice of appeal.




A. Abdalla on his own behalf.

G. Vella for Viewdaze Pty Ltd t/as Malta Travel

Hearing details:



17 February.

Printed by authority of the Commonwealth Government Printer

<Price code G>

1 per Williams SDP, Lacy SDP, Simmonds C, 24 September 2002, PR922818

2 PR925347

3 PR922818 at [6]

4 Transcript PN 54-57; PN89-90

5 Wan v AIRC (2001) 116 FCR 481 at [30]

6 ibid

7 see, for example, Leigh Carpenter v. Corona Manufacturing, per Williams SDP, Lacy SDP, Tolley C, 17 December 2002, PR925731

8 (2000) 98 IR 168 at [20]

9 (2000) 203 CLR 194 at [17]. See also Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at [23].

10 s170CE(1) of the Act.

11 Pawel v. Australian Industrial Relations Commission and Another (1999) 97 IR 392, at p. 395 (per Branson and Marshall JJ); Administrative Clerical and Services Union v Automated Meter Reading Services (AMRS) Munro J, Kaufman SDP, Cribb C, 3 September 2002, PR022053.

12 Usefully summarised in Fearnley v Tenix Defence Systems Pty Ltd, Ross VP, Polites SDP, Smith C, 22 May 2000, Print S6283.

13 Ross VP, Polites SDP and Foggo C, 2 July 1999, Print R4924

14 ibid at [70]

15 (1986) 160 CLR 16

16 ibid at p. 47

17 ibid at p. 49

18 ibid at p. 24

19 ibid at p. 29

20 ibid at p. 26

21 ibid at p.p. 36-37

22 ibid at p. 35

23 (2000) 98 IR 168 at [59]-[60]

24 (1989) 34 IR 179

25 ibid at p. 184

26 per Ross VP, Polites SDP, Foggo C, 2 July 1999, Print R4924

27 ibid at [70]

28 (2001) 207 CLR 21

29 ibid at p. 49

30 ibid at p. 50

31 ibid at p.p. 38-41

32 ibid at p.p. 41-42

33 ibid at p. 43

34 ibid at p. 39

35 ibid at p. 41

36 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at p. 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 at p. 39; see also Brodribb per Wilson and Dawson JJ at p. 37.

37 Hollis v Vabu (2001) 207 CLR 21 at p.p. 41-42 and p. 45

38 Brodribb esp Mason J at p. 29.

39 Brodribb per Wilson and Dawson at p. 37.

40 "The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck" Re Porter (1989) 34 IR 179 at p. 184 per Gray J; Massey v Crown Life Insurance [1978] 2 All ER 576 at p. 579 per Lord Denning approved by the Privy Council in AMP v Chaplin (1978) 18 ALR 385 at p. 389.

41 AMP v Chaplin (1978) 18 ALR 385 at p. 389

42 Hollis v Vabu (2001) 207 CLR 21 at p. 45

43 AMP v Chaplin (1978) 18 ALR 385 at p. 394

44 Massey v Crown Life Insurance [1978] 2 All ER 576 at p. 579 per Lord Denning

45 Brodribb

46 Flows from the reasoning of Mason J in Brodribb at p. 24

47 Brodbribb esp Mason J at p. 24.

48 Zuijs v Wirth Bros. Pty. Ltd (1955) 93 CLR 561 at p. 571

49 Hollis v Vabu (2001) 207 CLR 21

50 Humberstone v Northern Timber Mills (1949) 79 CLR 389 at p. 404 per Dixon J

51 Brodribb per Wilson and Dawson JJ at p. 36

52 Brodribb per Wilson and Dawson JJ at p. 37

53 Brodribb per Mason J at p. 24

54 Hollis v Vabu (2001) 207 CLR 21 at [47] see also [58]

55 Brodribb per Mason J at p. 24

56 Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539; AMP v Chaplin (1978) 18 ALR 385 at p. 389

57 Brodribb per Wilson and Dawson JJ at p. 36

58 Hollis v Vabu at [50]

59 Brodribb per Mason J at p. 24; Wilson and Dawson JJ at p. 37

60 cf Brodribb per Mason J at p. 24

61 as to paid holidays, see Brodribb per Mason J at p. 24

62 Brodribb per Wilson and Dawson JJ at p. 37

63 ibid

64 ibid

65 In the objective sense discussed in Codelfa Construction Propreitary Limited v State Rail Authority of New South Wales 149 CLR 337 per Mason J (with whom Stephen and Wilson JJ agrred) at p. 352.

66 Hollis v Vabu at [19]

67 See the treatment of statutory regulation in Re Family Day Care Providers, per Boulton and Munro JJ and Donaldson C, 5 April 1991, Print J7216.

68 Sections 4 and 6 of the Travel Agents Act 1986 (Vic)

69 (1991) 178 CLR 134

70 ibid at p.p. 142-3

71 Transcript PN 22

72 In using the term onus we are cognizant of the warning issued by the Full Bench in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, per Munro J, Harrison SDP, Leary C, 20 June 1997, Print P2071): "It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be "satisfied" about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process. This is especially so where a discretion, as in the case of section 127, is exercisable on the Commission's own motion. In short, the Commission is either satisfied that it should exercise the discretion, or it is not. It matters little how the Commission arrives at that state of mind. Perhaps no party can be said to bear an onus in a quasi-judicial proceeding that is freed of legal technicality and is directed to the determination of a statutory discretion. Even if that view be accepted, there are ingredients of the principles associated with the notion of onus of proof that have a useful role in any adversarial proceeding. In that context, a notion of onus stems from the fact that an applicant is the party who usually has the carriage of the application and who bears the risk of failure. The applicant thus may be said to bear an onus of satisfying the Commission that an order should be made. Where a matter commences on the Commission's own motion, no party bears any direct onus but the Commission must be satisfied that a proper basis for exercise of power in the matter is established." The notion of `evidentiary onus' is convenient in the Commission's unfair termination jurisdiction where the Commission is determining an application inter-parties and cannot act of its own motion.

73 Reilly v Nepean Country Club (Hamilton DP, 31 March 2003, PR929453)