WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2017 WAIRC 00834

DELIVERED : FRIDAY, 22 SEPTEMBER 2017

FILE NO. : M 95 OF 2016

CLAIMANT

AND

Dr William David Pannell

Respondent

CatchWords : Application by respondent for summary judgment – Whether there is a real issue of fact or law to be tried – Release and discharge given to a party in family law proceedings – Claim under Minimum Conditions of Employment Act 1993 (WA) and Long Service Leave Act 1958 (WA) against same party

Legislation : Minimum Conditions of Employment Act 1993 (WA)
Long Service Leave Act 1958 (WA)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)

Case(s) referred to
in reasons : SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011]
  WASCA 138
  Gadens Lawyers v Beba Enterprises Pty Ltd [2012] VSC 519
   Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159
  Butler v Saint John of God Healthcare Inc [2008] WSCA 174
  Shire of Toodyay v Merrick [2016] WASC 29
  Richard James Quinlivan v Austral Ships Pty Ltd [2003]
  WAIRComm 9633
  United Voice v Minister for Health [2012] WAIRComm 319
  Casella v Hewitt [2008] WASCA 13
  SAS Global Forrestdale Pty Ltd v Towton Investments Pty Ltd
  [2010] WASC 167
  Eighty Second Agenda Pty Ltd v Hamburg [2015] FCA 11136
  Electricity Generation Corporation v Woodside Energy Ltd [2014]
  HCA 7
  Grant v John Grant and Sons Pty Ltd [1954] HCA 23
  Barnes v Forty Two International Pty Ltd [2014] FCAFC 152
  Ridgepoint Corporation Pty Ltd v Perth Airport Pty Ltd [2014]
  WASCA 235
  Dean v Cumberland Newspaper Group [2003] FMCA 561

Result : Summary judgment for the respondent

Representation:

Claimant : Mr D. Howlett (counsel) instructed by Croftbridge

Respondent : Mr T. Carmady (counsel) instructed by William + Hughes

REASONS FOR DECISION

Introduction

1          The claimant in this case, Ms Jodie Pannell (‘Jodie’) married Mr Daniel Pannell (‘Daniel’) on 8 January 1994. Commencing in 1993, Jodie and Daniel worked in a winery business operated from 14545 Vasse Highway, Pemberton (‘the Pemberton Property’). The owner of the Pemberton Property was Daniel’s father, Dr William Pannell (‘Bill’), the respondent in this case. Bill is married to Sandra Pannell (‘Sandra’). Jodie and Daniel lived together at the Pemberton Property from the mid 1990’s until, on 24 November 2012, Jodie moved out of that property. By this date her relationship with Daniel had ended. In this case, there is a dispute about the identity of Jodie’s employer while she worked in the winery business. Jodie alleges that her employer was Bill. He says that, commencing in 2000, Jodie was employed by a partnership of two partners: himself and Picardy Pty Ltd (‘the Company’).

2          This case was commenced by Jodie filing an originating claim on 8 July 2016 in which she makes a claim for $76,170.05 arising from her employment by Bill in the winery business between 1 November 1996 and 10 February 2013 (‘the Employment Law Proceedings’). The claim is for unpaid annual leave of $62,602.84 as provided under the Minimum Conditions of Employment Act 1993 (WA) (‘MCE Act’) and for unpaid long service leave of $13,567.21 as provided for under the Long Service Leave Act 1958 (WA) (‘LSL Act’). Jodie also seeks orders for the imposition of penalties for contravention of those statutes. Bill defends the Employment Law Proceedings on several alternative grounds. One of those grounds, that Jodie signed a settlement deed in September 2013 releasing Bill from claims including claims that she now brings in the Employment Law Proceedings, is the basis for Bill’s application for summary judgment.

3          The principles to be applied in determining this application for summary judgment are not in dispute. The Industrial Magistrates Court has jurisdiction to determine proceedings upon an application of a party for summary judgment. It is an implied power of the court (Richard James Quinlivan v Austral Ships Pty Ltd [2003] WAIRComm 9633 [31]) or it is an incident of the specific powers conferred on the court by regulation 5 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) to make orders for the efficient, economical and expeditious dealing with cases: United Voice v Minister for Health [2012] WAIRComm 319 [20] – [22] (Smith AP); [100] (Kenner C). It is for Bill to persuade the court that there is no issue to be tried. Although there is an evidentiary burden on Jodie to show a valid claim, the overall legal burden is upon Bill. His application for summary judgement will not be granted unless I am satisfied that this case is ‘one of the clearest of cases, when there is (such) a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment (dismissing the case) ought properly be granted’: SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20]. If the ‘ultimate outcome’ of the case may be effected by unresolved questions of fact or difficult questions of law or any other factor including the filling of the current ‘evidential vacuum’ then the application will be dismissed: SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd at [20] – [25]. The power to order summary judgment must be exercised with great care: Casella v Hewitt [2008] WASCA 13 [36] (McLure JA).

4          The principles to be applied when interpreting a settlement deed are also not in dispute. The effect of the deed is to be determined by what a reasonable bystander would have understood the deed to mean. This will require consideration of the language used by the parties in the deed against the background of the dispute which the parties were endeavouring to resolve: Eighty Second Agenda Pty Ltd v Hamburg [2015] FCA 11136, [43] (Middleton J). The general words of any release must be viewed in the context of ‘the state of knowledge of the parties concerning the existence, character and extent of the liability in question and the actual intention of the releaser’ to determine whether it would be unconscientious to allow those general words to be relied upon by Bill: Butler v Saint John of God Healthcare Inc [2008] WASCA 174 [3] – [6] (Buss JA), [30] – [32] (Newnes AJA) (McLure JA agreed with both Buss JA & Newnes AJA); Ridgepoint Corporation Pty Ltd v Perth Airport Pty Ltd [2014] WASCA 235 [55] (McLure P, Newnes & Murphy JJA agreeing); Shire of Toodyay v Merrick [2016] WASC 29.

5          The origin of the settlement deed is in proceedings in the Family Court of Western Australia. On 8 May 2013, Jodie commenced property proceedings in that court against Daniel, Bill and Sandra (‘the Family Law Proceedings’). Jodie applied for orders that she be granted: unencumbered title to a unit in Nedlands by transfer from Daniel; a partial joint interest (with Daniel) in the Pemberton Property by transfer from Bill; and shares in the Company (jointly with Daniel) by transfer from Bill, Sandra and Daniel. The particulars of claim filed by Jodie in the Family Law Proceedings alleged that she had engaged in work at the Pemberton Property without being paid ‘commercial wages’ or ‘long service leave, holiday pay or superannuation entitlements commensurate with the work performed’ on the strength of a promise by Bill and Sandra that, if she did that work, she would be granted the property interests she claimed. The Family Law Proceedings ended when consent orders were made in September 2013 reflecting a ‘deed of settlement and release’ (‘the Settlement Deed’ or ‘the SD’) executed by Bill, Sandra, Daniel, Jodie and the Company. The Settlement Deed includes the following clause (‘Jodie’s Release Clause’):

6.1 Release by Jodie
…

Jodie releases and discharges William, Sandra, Daniel, the Company and the Partnership from any claim, action, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunction, specific performance or other remedy that Jodie has, or might have but for this Deed, in respect of the claims made by Jodie in the Proceedings, arising out of her employment by the Partnership and her appointment as a director of the Company, whether arising at common law, in equity or under statute or otherwise.

6          Jodie’s claims against Bill in the Employment Law Proceedings, unarguably, arise under statute (i.e. the MCE Act and the LSL Act) and, unarguably, are claims that fall within the description of claims for an ‘other remedy’ being claims for payments and penalties as provided in those statutes. Bill’s application for summary dismissal of Jodie’s claim will not be granted unless I have the requisite degree of certainty that Jodie’s claim against Bill in the Employment Law Proceedings is a claim that falls within either of the following descriptions (adopting the language of Jodie’s Release Clause):

• In respect of claims made by Jodie in the Family Law Proceedings (‘the Family Law Claim Issue’); or
• Arising out of her employment by a partnership comprised of Bill and the Company (‘the Partnership Issue’).

The resolution of the Family Law Claim Issue and the Partnership Issue requires an understanding of the background to the Settlement Deed (undertaken immediately below) before consideration of each of those issues.

Background to the Settlement Deed

7          The content of the Family Law Proceedings is evident from the following documents filed in those proceedings (and included in the material filed in this application for summary judgment): Jodie’s Form 1 Initiating Application filed 8 May 2013 (‘Form 1’); Jodie’s affidavit of 6 May 2013 (‘Jodie’s FL Affidavit’); and Jodie’s Particulars of Claim’ filed 11 June 2013. It will also be necessary to refer to Jodie’s evidence about the Family Law Proceedings, contained in her affidavit of 2 June 2017 and filed in this application (‘Jodie’s EL affidavit’).

8          Jodie commenced receiving legal advice about family law matters in December 2012 and continued to be represented by the same firm throughout the Family Law Proceedings. The parties to the Family Law Proceedings were Jodie (as the applicant), Daniel (as the first respondent) and ‘William and Sandra Pannell’ (as the second respondent). Bill and Sandra are ‘grouped’ as a second respondent.

9          Interim orders sought against Daniel included orders for urgent access to funds for property settlement or interim spousal maintenance or interim child support departure and orders for disclosure. The disclosure requested included: financial records of the Company ‘and the partnership known as Picardy and any other company, trust or partnership in which’ Daniel had an interest; and ‘the partnership agreement’ in relation to the companies in which Daniel had an interest including Picardy Pty Ltd. The final orders sought against Daniel included orders for: the transfer of his interest in a unit in Nedlands to Jodie; spousal maintenance quantified following valuation evidence on the value of the Pemberton Property and the Company; and other orders relating to child support.

10       The interim orders sought against Bill and Sandra were orders for disclosure only. The disclosure requested included: financial records of the Company; communications with a bank regarding the Pemberton Property, the Company and the winery business. The final orders sought against Bill and Sandra concern the Pemberton Property and shares in the Company. Jodie sought final orders that: Bill and Sandra transfer to her and Daniel a 75% interest in the Pemberton Property or, in the alternative, a declaration that Bill and Sandra holds on trust for Daniel and her a 75% interest in the Pemberton Property; Bill and Sandra transfer to Daniel and her 375 shares in the Company, or in the alternative, a declaration that Bill and Sandra holds on trust for Daniel and her, 375 shares in the Company.

11       In support of her application for the final orders sought against Bill and Sandra, Jodie particularised representations made by Bill and Sandra to herself and Daniel promising an interest in the Pemberton Property and the winery business in exchange for moving to the Pemberton Property and working in the winery business. The representations and consequent conduct of Jodie and Daniel were said to found: a cause of action in estoppel; the creation of a constructive trust; and a cause of action in restitution. The conduct of Jodie and Daniel, said to be in reliance upon the representations, was particularised by Jodie. They moved to the Pemberton Property. They worked in the winery business. They were ‘paid less than commercial wages for the work conducted’ (Jodie’s Particulars of Claim at paragraphs 38, 59 and 62). They were not ‘paid long service leave, holiday pay or superannuation entitlements, commensurate with the work performed’ (Jodie’s Particulars of Claim at 38(h)). Jodie organised the employment and payment of staff of the winery business (Jodie’s Particulars of Claim at 40(h)). Jodie’s evidence in support of these particularised allegations is contained in Jodie’s FL Affidavit (especially at paragraphs 41, 45 – 56 and 60). Jodie notes her agreement ‘to work for a nominal salary’ and to her earning a ‘modest income’ and states that on two occasions Bill and Sandra were presented with a calculation of ‘proper wages that should have been earned compared to what was actually paid’.

12       The material filed by Jodie in the Family Law Proceeding does not identity the legal entity that is said to be her employer while working in the winery business. The material refers to various entities involved in the operation of the winery business. Jodie refers to the Company, including the circumstances leading to her own directorship and to the shareholding of Bill, Sandra and Daniel. She refers to a partnership between Bill (‘as the owner of the Pemberton Property’) and the Company (‘as the owner of plant and other non-fixed assets’) (see Jodie’s FL Affidavit at 39). She produces financial statements of the Company and, separately, financial statements of a partnership of Bill and the Company. This material is consistent with Jodie having an awareness of the existence of and the conceptual distinction between the Company and a partnership comprising Bill and the Company. Jodie also refers to role of Bill, Sandra, Daniel and herself in the winery business. There are numerous references to ‘Picardy’ in material filed by Jodie in the Family Law Proceeding when describing the operation of the winery business. In some instances, the context of the reference makes the precise identity of ‘Picardy’ to be clear. For example, the reference to ‘Picardy’ in paragraph 7 of Jodie’s FL Affidavit, in context, is a reference to the Pemberton Property. However, the context does not always reveal whether a reference to ‘Picardy’ is a reference to the Pemberton Property or to the Company or to a partnership name or to a business name or is being used as a convenient label for a known entity (e.g. Bill) or collection of entities (e.g. Bill and Sandra) or an unknown entity or collection of entities that are involved in the operation of the winery business. For example, in paragraph 14 of Jodie’s FL Affidavit, she speaks of ‘working full time with Picardy’ from 1996 until 2013 and in paragraph 40 of Jodie’s Particulars of Claim is a long list of what her ‘work for Picardy included’. It is unclear from the context of these paragraphs whether the reference to Picardy is a reference to the Company or some other entity or is a convenient label for an unknown entity. A further relevant example of ambiguity appears in paragraph 17 of Jodie’s FL Affidavit, where she speaks of declining to resign as a director of ‘Picardy’ which, in context, is a reference to the Company. In the following sentence, Jodie states that, ‘I resigned from my employment from Picardy … in January 2013’. Again, it is unclear from the context whether she is speaking of having resigned as an employee of the Company or resigned as an employee of some other unidentified entity.

13       Jodie signed a Minute of Consent Orders and the Settlement Deed in September 2013. By clause 5 of the Settlement Deed the parties must take all steps necessary to procure the making of orders which are annexed to the Settlement Deed. The annexure is in an identical form to the minute of consent orders pronounced by the court on 23 September 2013. Jodie does not allege any oral or written communications around the time of signing that are relevant to the construction of the deed, see Jodie’s EL Affidavit at paragraph 119.

14       The recitals of the minute of consent orders note that Daniel, Jodie, Bill and Sandra, having attended a mediation in July 2013 and ‘reached an agreement in resolution of all financial matters’ (my emphasis), have signed the Settlement Deed. The recitals also record that the parties intend that the Orders ‘as far as practicable end the financial relationships between them and avoid further proceedings between them (my emphasis). The consent orders provide for Daniel to transfer his interest in a unit in Nedlands to Jodie. Daniel indemnifies Jodie for claims arising ‘in any way in respect of Picardy Pty Ltd’ and ‘Picardy the partnership’ due to ‘Jodie having been an employee, director, office holder of the Company or the partnership’.

15       The recitals of the Settlement Deed include reference to: Bill and the Company carrying on the business of wine-making in partnership under the name of ‘Picardy’ and to Daniel and Jodie being ‘in the process of resolving financial matters’.

16       The Settlement Deed provides for the transfer of a unit in Nedlands from Daniel to Jodie (Clauses 2,3,4,5) as contemplated by the consent orders. Clauses 6 and 7 of the SD contain respectively ‘mutual releases’ and a ‘plea in bar’. These terms are discussed in the following paragraph. Clauses 8, 9, 10, 11, 12 and 13 concern respectively, confidentiality, costs, notices, governing law, variation and counterparts in unexceptional terms.

17       The parties to the deed ‘release and discharge each other’ (clause 6.1, 6.2, 6.3) and ‘covenant not to claim, sue or take any action’ against each other (clause 6.4, 6.5, 6.6) and acknowledge that each party may ‘plead the deed in bar to any claim for proceedings for the other party’ (clause 7). The distinction between a ‘release and discharge’, a ‘covenant not to sue’ and a ‘plea in bar’ is discussed by the Court of Appeal in Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159 [14] – [25] (Newnes JA, Murphy JA and Mazza JA). For present purposes, it is sufficient to state that the distinction between those clauses is of no legal significance in the current proceedings where the ‘release and discharge’ is by deed under seal and where, if Jodie’s claim was found to be a joint debt (as asserted by Bill and specifically denied by Jodie), the Deed of Release identifies each and every ‘potential’ joint debtor. In short there is no significance to the distinction between a release and discharge, covenant not to sue and a plea in bar that requires separate consideration of those concepts. Clause 7 provides that each party acknowledges that each other party is entitled to enforce the deed directly and plead the deed in bar to any claim by the other party in relation to matters released under clause 6; the Settlement Deed is a settlement by ‘accord and satisfaction’ (Gadens Lawyers v Beba Enterprises Pty Ltd [2012] VSC 519 [35] (Emerton J)).

Family Law Claim Issue

18       In the introduction to these reasons, I noted that Bill’s application for summary dismissal of Jodie’s claim will not be granted unless I have the requisite degree of certainty that her claims for unpaid annual leave under the MCE Act and unpaid long service leave under the LSL Act are, adopting the language of Jodie’s Release Clause, ‘in respect of claims and made by Jodie in the Family Law Proceedings’. For the reasons set out below, my view is that a reasonable bystander would understand the reference to ‘the claims made by Jodie in the Family Law Proceedings’ to include allegations by Jodie in the Family Law Proceedings of financial entitlements which are relevant to the orders sought by her in those proceedings. Jodie’s allegations in the Family Law Proceedings of a forgone entitlement to ‘paid long service leave, holiday pay or superannuation entitlements, commensurate with the work performed’ was relevant to her claim for orders based upon estoppel or a constructive trust or restitution. The effect of Jodie’s Release Clause is to release and discharge Bill from the same claims made in the Employment Law Proceedings.

19       The ordinary meaning of the word ‘claims’ in the phrase ‘claims made by Jodie in the Family Law Proceedings’ would include allegations of fact or law by Jodie in the Family Law Proceedings that were relevant to the orders sought by her in those proceedings. Jodie’s allegation in the Family Law Proceedings of a forgone entitlement to long service leave and holiday pay is an allegation of both fact and law. It is an allegation of the existence of (unidentified) legal criteria for an entitlement to each of long service leave and holiday pay. It is also an allegation of fact i.e. that Jodie has satisfied that legal criteria.

20       An alternative construction, urged by Jodie’s counsel, is to confine the word ‘claims’ in the phrase ‘claims made by Jodie in the Family Law Proceedings’ to causes of action alleged in those proceedings (i.e. estoppel, constructive trust and restitution) or to a remedy identified in the Family Law Proceedings. On this view, Jodie’s Release Clause has no application to the claims made in the Employment Law Proceedings because she made no claim for payment of long service leave or for payment of holiday pay in the Family Law Proceedings. This construction ignores the use of the word ‘claims’ in contrast with the phrase ‘claim, action, demand etc.’ in the same sentence of Jodie’s Release Clause. The contradistinction suggests that ‘claims’ is intended to be given a broader meaning than ‘claim, action, demand’ etc. A broader meaning would encompass allegations by Jodie of financial entitlements relevant to the orders sought in the Family Law Proceedings. The result is to release and discharge Bill, notwithstanding three further matters relied upon by Jodie. First, Jodie notes that mention is not made of the MCE Act or the LSL Act in the Family Law Proceedings. Secondly, Jodie observes that the Family Court of WA may not have had the power to make orders pursuant to the MCE Act or the LSL Act. Thirdly, Jodie states that she has never received any payment from Bill that is referrable to any entitlement under those statutes. The short answer to these points is that parties are free to settle a dispute on any terms that are agreed upon, including on terms that go beyond the ambit of the forum of their current dispute. For example, a deed of release by parties in workers’ compensation proceedings may release a party from future claims under discrimination legislation: Dean v Cumberland Newspaper Group [2003] FMCA 561; see also Butler v Saint John of God Healthcare Inc [2008] WASCA 174. In the end, it is for the parties to determine the ambit of the settlement. In this case, Jodie’s Release Clause reflects an intention to release and discharge Bill from claims that Jodie has subsequently made in the Employment Law Proceedings. Similarly, insofar as the MCE Act and LSL Act each have formal requirements for ‘contracting out’ and the Settlement Deed does not satisfy those requirements, there is nothing in those statutes to suggest that parties to a dispute are not free to settle the dispute by means of an agreement that does not comply with those formal requirements.

21       The construction argued by Jodie would also pay insufficient weight to the additional phrase ‘in respect of’ that appears in the clause, ‘in respect of the claims made by Jodie in the Family Law Proceedings’. In Butler v Saint John of God Healthcare Inc [2008] WASCA 174, in the context of construction of a deed of settlement, the Court of Appeal considered the phrase ‘in respect of’ to be of ‘wide connotation’ and to ‘have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer’ (Newnes AJA at [37], [38]). The ‘wide connotation’ is consistent with the parties’ desire to end current litigation and avoid future litigation in a context where the current litigation had not reached the stage of clarifying the parties’ positions on matters such as those discussed in paragraph 12 above.

22       Finally, the construction argued by Jodie also overlooks the objective of the parties to the Family Law Proceedings in executing the Settlement Deed in so far as the recitals to the deed and the Minute of Consent Orders make express reference to an unqualified desire of the parties to cease any financial connection. Jodie’s allegation of work by her on the Pemberton Property for less than her full entitlements, in reliance upon certain promises made by Bill, revealed a financial connection between her and Bill. It loomed as a significant and complex issue in the Family Law Proceedings. The recitals are consistent with the parties having reached an agreement not to have to ever re-visit any aspect of that connection, including allegations relating to employment entitlements. The effect of the words of Jodie’s Release Clause, as I construe their meaning, are consistent with the same objective.

23       In the introduction to these reasons I noted that general words of Jodie’s Release Clause must be assessed in the context of ‘the state of knowledge of the parties concerning the existence, character and extent of the liability in question and the actual intention of the releaser’ to determine whether it would be unconscientious to allow those general words to be relied upon by Bill. Jodie’s evidence was that it was not until early 2014 that she became aware that ‘she should have been paid her accrued annual leave and long service leave when her employment ended’ (Jodie’s EL affidavit at paragraph 180). In light of the references to unpaid long service leave and holiday pay in Jodie’s Particulars of Claim filed on 11 June 2013 (at paragraph 38(h)), I infer that it was not until early 2014 that Jodie became aware of her precise entitlements under the MCE Act and the LSL Act. In circumstances where Jodie was legally represented in the Family Law Proceedings and where unpaid long service leave and unpaid holiday pay were specifically adverted to in the Family Law Proceedings, my view is that it would not be unconscientious to construe Jodie’s Release Clause in the manner set out above.

24       The content of the Minute of Consent Orders, particularly clause 8, tends to confirm the intention of the parties to cease any further claims against each other arising from all aspects of the winery business. Clause 8 provides that Jodie transfer and assign to Daniel all and any monies owed to her by the Company and by a partnership comprising Bill and the Company. On its face, clause 8 is sufficiently broad to be construed as an assignment by Jodie to Daniel of monies owed to her by a partnership of Bill and the Company, including employment entitlements. It is not necessary to make a finding on whether the clause would operate to assign to Daniel monies owed to Jodie by Bill when he is not in partnership with the Company or to make a finding on the effectiveness of the purported assignment. It is sufficient for present purposes to refer to the existence of clause 8 as evidence of the intention of the parties to cease any further claims against each other in connection with the winery business.

The Partnership Issue

25       In the introduction to these reasons I noted that Bill’s application for summary dismissal of Jodie’s claim will not be granted unless I have the requisite degree of certainty that her claims in the Employment Law Proceedings, adopting the language of Jodie’s Release Clause, arise out of her employment by a partnership comprised of Bill and the Company. Jodie’s case in the Employment Law Proceedings is that she was at all relevant times employed by Bill and not by a partnership of Bill and the Company. Bill’s case in the Employment Law Proceedings is that Jodie was employed by Bill until March 2000 and thereafter by a partnership of Bill and the Company. Jodie contends that the identity of her employer is an issue that is properly resolved at trial. I agree.

26       I have noted above that, in the Family Law Proceedings, Jodie did not identify the legal entity that is said to be her employer while working in the winery business. In his Submissions in Support of Respondent’s Application for Summary Judgment, Bill draws attention to a number of documents suggesting a partnership of Bill and the Company was Jodie’s employer and, further, suggesting that Jodie was aware of this fact, including: financial statements (23.7, 23.23), payslips (23.8), payroll advice (23.9), ATO records (23.10 – 23.12), documents filed in the Family Law Proceedings (23.13 – 23.14), communications by Jodie with various entities including Government Agencies (23.15 – 23.16, 23.22) and banks (23.17, 23.19, 23.20 – 23.21). Jodie’s response is to deny the existence of any agreement concerning her employment by any partnership (Jodie’s EL Affidavit at 129 – 132) and to explain documents suggesting her employment by a partnership of Bill and the Company on the basis that third parties created those documents and that she has not, expressly or by implication, ever accepted their content (e.g. Jodie’s EL Affidavit at 186).

27       On any view, Bill’s case involves proof of either an express oral employment agreement made in March 2000 (or thereafter) between Jodie and a partnership or proof of an agreement, by implication, from the conduct of Jodie and a partnership around March 2000 and thereafter. In the absence of a written contract of employment between Jodie and a partnership it is impossible for this court, on a summary judgment application, to make a finding on the identity of Jodie’s employer without the benefit of evidence to fill the ‘evidential vacuum’ on significant events in March 2000. It may be accepted that post contractual conduct may be admissible to resolving questions as to identity of Jodie’s employer. It may also be accepted that there is evidence of Jodie’s awareness of the existence of a partnership between Bill and the Company (Jodie’s FL Affidavit at paragraph 39). However, Jodie’s knowledge of the existence of a partnership is not compelling evidence that the partnership is as her employer.

Conclusion

28       In the end result, Bill’s application for summary dismissal of Jodie’s claim will be granted because I am satisfied that there is such a high degree of certainty about the ultimate outcome of the proceedings if it went to trial that it is appropriate to summarily terminate the claim. There are no factual disputes or substantial questions of law involved in my conclusion that claims made by Jodie in the Family Law Proceedings which are the subject of Jodie’s Release Clause include her claims made in the Employment Law Proceedings. However, I do not accept Bill’s alternative argument for summary dismissal, that Jodie’s employer, unarguably, was a partnership of himself and the Company. If the claim were not summarily dismissed, the identity of Jodie’s employer would be an issue for trial.

M FLYNN

INDUSTRIAL MAGISTRATE