Wipro Limited v State of New South Wales and Anor

By a notice of motion filed on 1 June 2022, the plaintiff seeks orders pursuant to rr 28 and 1.21 of the Uniform Civil Procedure Rules 2005 (NSW). In essence, the orders sought are first, that certain questions be heard and determined separately before any other question in the proceedings, and secondly, that the proceedings be removed to Court of Appeal. The notice of motion is supported by an affidavit of Cilla Robinson affirmed on 1 June 2022 which has been read without objection.

The first defendant consents to the orders which have been sought. The second defendant, who has appeared unrepresented before me today has indicated, in general terms, his consent. Notwithstanding that, the determination of whether the orders sought should be made remains a matter for the Court's discretion.

The factual background to the matter is helpfully set out in written submissions provided by the first defendant, from which I draw the following summary.

Section 4(1) of the Long Service Leave Act 1955 (NSW) (the Act) provides that:

Section 4(2)(a)(i)(A) of the Act provides that, subject to specified provisions, the amount of long service leave to which a worker is entitled shall, in the case of a worker who has completed at least 10 years service with an employer, be a period of 2 months.

The second defendant previously worked for the plaintiff for a total of 10 years, eight months and 23 days. That period consisted of 5 years, 11 months and 20 days of service in India, and 4 years, 9 months and 2 days of service in New South Wales.

On 12 December 2019, the second defendant sent the plaintiff a letter of demand in respect of long service entitlements said to be owing to him. The plaintiff did not pay those entitlements. On 16 April 2020, the second defendant complained to the New South Wales Industrial Relations Commission about the plaintiff’s failure to pay him. The plaintiff was informed by an inspector appointed under section 384 of the Industrial Relations Act 1996 (NSW) that the second defendant was entitled to the entitlements he had claimed.

In these circumstances, the plaintiff was asked to pay the amounts owing. On 7 September 2021, the plaintiff commenced the current proceedings against the State of New South Wales, seeking declaratory relief with respect to the second defendant’s entitlement to long service leave.

The summons has since been amended in circumstances to which I need not refer. The issues between the parties include whether or not the period of employment undertaken by the second defendant overseas should be regarded as “leave” for the purposes of the Act. There are conflicting decisions in relation to that issue. Two of those decisions were delivered by the New South Wales Industrial Commission in Court session. The third is a decision of the Victorian Court of Appeal.

It is against that agreed factual background that the orders to which I referred earlier have been sought.

The principles which govern an application of this nature were summarised by Davies J in Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd: [1]

It seems to me that, bearing in mind those principles, there are a number of matters which weigh in favour of making of the orders which have been sought.

To begin with, the facts are agreed between the parties. Further, whilst the making of the orders sought remains a matter for the Court’s discretion, such discretion must be exercised in a way which seeks to give effect to the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 (NSW), namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. In my view, making the orders sought would be conducive to achieving that purpose. It is also relevant, although not conclusive, that all parties agree to the orders which are sought being made. Finally, the question to be resolved is a narrow one.

There remains a question of whether the Court of Appeal may be assisted by the determination of a judge at first instance in relation to the issue in question. It seems to me that any such assistance would be limited, bearing in mind the conflicting decisions which the Court of Appeal will be asked to consider.

Accordingly and for those reasons, I make orders in accordance with the Short Minutes of Order which have been signed by me and dated today. Those Short Minutes will now include order 4 which will be in these terms: