McEvoy v Wagglens Pty Ltd

1. [1]

   HIS HONOUR: On 11 February 2019, the plaintiff, Fentin McEvoy, filed a summons seeking an order to extend the time to file an appeal from a decision of the Local Court. The plaintiff also seeks leave to appeal that decision, and orders either setting aside the Local Court’s decision or remitting the matter back to the Local Court for determination.

Background

1. [2]

   On 25 May 2011, the plaintiff entered into an employment contract with Wagglens Pty Ltd, the first defendant (“the employment contract”). Wagglens Pty Ltd is a real estate agency trading as Mosman First National Real Estate. Roderick Marr, the second defendant, was the sole director and secretary of the first defendant at all relevant times when the plaintiff was employed by the first defendant.

2. [3]

   On 19 April 2012, the plaintiff ceased to attend the office of the first defendant and did not return. The circumstances of him doing so, and whether it was in the context of him resigning his employment, are matters of dispute between the parties.

3. [4]

   In order to better understand the application, it is appropriate to briefly trace the relevant Local Court history. Throughout the proceedings in the Local Court and in this Court, the plaintiff has appeared without legal representation, although he informed the Local Court that he has a law degree.

Local Court history

1. [5]

   On 24 May 2018, the plaintiff filed a statement of claim in the Local Court, seeking damages from the defendants in the sum of $26,250.12. The damages were expressed to be “for breach of employment contract dated 25 May 2011 by way of under-payment”. The pleading identified the second defendant as a director of the first defendant, but did not identify a cause of action against him.

2. [6]

   By letter dated 7 June 2018, the defendants’ solicitors sought particulars from the plaintiff. In that correspondence, the defendants expressed an assumption that the plaintiff would allow 14 days from receipt of his response for them to file a defence or apply to strike out his claim. Exchanges of letters and emails ensued. By email dated 21 June 2018, the plaintiff purported to provide particulars and declined to provide an assurance that he would allow a period of 14 days for the defendants to file a defence.

3. [7]

   On 22 June 2018, the plaintiff filed a motion for default judgment against the defendants, which was entered on the same date. On 26 June, the plaintiff sought and was granted a garnishee order by the Local Court against the defendants to the amount of $26,494.12. On 28 June, the plaintiff was paid $348.70 by the first defendant consequent to the garnishee order. On 29 June, the defendants became aware of the default judgment and invited the plaintiff to consent to it being set aside. By email dated 2 July, the plaintiff declined, expressing the view that the defendants had “sufficient time to file their Defences”.

4. [8]

   On 4 July 2018, the defendants filed a notice of motion seeking orders that the default judgment be set aside, the plaintiff repay the garnished amount of $358.70, and costs. An affidavit in support, sworn by the second defendant, was filed at the same time. On 27 July 2018, the Local Court set aside the default judgment, conditional upon the defendants filing a defence on or before 10 August 2018. The defence was filed on 9 August 2018, pleading that the plaintiff was barred from bringing the action as the claim was filed more than six years after the cause of action accrued.

5. [9]

   On 10 September 2018, the defendants filed a notice of motion, together with an affidavit in support, sworn by the second defendant on the same date. The notice of motion sought orders that the plaintiff’s statement of claim be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or the proceedings be dismissed, presumably pursuant to r 13.4 (though this is not explicitly stated), that the amount garnished be repaid, and costs.

6. [10]

   The plaintiff did not file any material in response. The notice of motion was set down for hearing before Magistrate Reiss on 25 September 2018. At the hearing, the plaintiff submitted that, firstly, the six year limitation period expired on 25 May 2018, and therefore the statement of claim was filed one day within the expiration of the six year period. Secondly, the contract of employment was “embodied in a deed” and therefore, pursuant to the 12 year limitation period applying to actions arising from a cause of action in a deed, he was well within the statutory period within which to seek enforcement of a term of it. Thirdly, he submitted that the second defendant was liable pursuant to s 550 of the Fair Work Act 2009 (Cth).

7. [11]

   The defendants submitted that the plaintiff had not given prior notice of any of these contentions, other than in discussions immediately before the court hearing. The magistrate determined that the plaintiff should be afforded an opportunity to file an affidavit in reply setting out his evidence, and stood the hearing over to 23 October 2018, directing that any affidavits in the plaintiff’s case be filed and served by 16 October. Following discussion between the magistrate and the plaintiff as to how long he should have to file an affidavit in reply, his Honour said:

8. [12]

   On 16 October 2018, the plaintiff filed an affidavit in reply with 100 pages of annexures (“the plaintiff’s October 2018 affidavit”). On 22 October 2018, the defendants filed two further affidavits, in response to claims made in the plaintiff’s October 2018 affidavit. According to the defendants’ counsel at the hearing on 23 October 2018 (“the October 2018 hearing”), they had been forwarded by email to the plaintiff’s email address at 4:55pm on 22 October 2018.

9. [13]

   The plaintiff did not appear at the October 2018 hearing. The reasoning in his Honour’s brief judgment did not include the relevant principles or distinguish between the application for the statement of claim to be struck out and the application for the proceedings to be dismissed. In making that observation, I do not mean to be critical; I am conscious of the severe time constraints on magistrates in dealing with their work-load. His Honour dismissed the plaintiff’s claim, principally on the basis that it was barred by the statute of limitations (“the October 2018 judgment”). In providing his reasons, his Honour stated that he had read the plaintiff’s affidavit “very closely”. His Honour said:

10. [14]

    On 6 November 2018, the plaintiff filed a notice of motion pursuant to rr 36.15 and 36.16(2)(b) of the UCPR, seeking to stay the orders made in the October 2018 judgment and to set aside or vary those orders. He also filed a supporting affidavit with the notice of motion, in which he explained that he has a hearing disability and, although he heard the magistrate’s direction as to the date by which he was to file an affidavit in reply, he did not hear the date on which the matter was adjourned for hearing and assumed that, based on his past experience with courts, he would receive written advice of the fresh hearing date. Annexed to his supporting affidavit was a medical certificate that corroborated his submission concerning his hearing disability. When he attended the Supreme Court registry on 16 October 2018 to file his affidavit, he inquired about “any other dates which may have been ordered for any further court procedures” but was not advised of the hearing date. He learned of the hearing date when he received an email advising him that the Court had made ex parte orders. Further, he stated in his affidavit that he had intended to “argue [his] case in Court” by reference to the material annexed to his affidavit.

11. [15]

    The plaintiff filed two further affidavits, one sworn by his brother John McEvoy on 30 November 2018, and another by him, sworn on 3 December 2018. Both affidavits advanced further material in support of his statement of claim, and the plaintiff also prepared seven pages of written submissions in support of his application, which focused primarily on the merits of his claim for damages.

12. [16]

    On 4 December 2018, the magistrate heard the plaintiff’s motion to set aside the October judgment. After hearing from the parties and referring to the plaintiff’s written submissions, his Honour dismissed the plaintiff’s notice of motion, finding that he had been given the opportunity to present his material to the Court, and had done so, in affidavit form (“the December 2018 judgment”). Therefore, the judgment was:

13. [17]

    His Honour disregarded r 36.15 of the UCPR as being inapplicable, and it appears from the terms of the judgment that his Honour proceeded on the assumption that r 36.16(2)(b) was the basis of the application, which is that:

14. [18]

    The relevant parts of his Honour’s judgment are as follows:

15. [19]

    I assume the reference in the judgment to “applicant company” was either intended to be to the first defendant as the applicant on the notice of motion filed by the defendants on 4 July 2018, or to “defendant company”. The summons subject of these proceedings was filed on 11 February 2019, being 69 days after 4 December 2018.

16. [20]

    Under the heading “Appeal Grounds”, the plaintiff set out an explanation as to why the summons was filed out of time. That explanation was to the following effect. On 31 December 2018, the plaintiff filed a summons and notice of motion in the Supreme Court registry, appealing the Local Court’s decision. On the same day, the plaintiff lodged an application to postpone, remit or waive payment of a court fee. The plaintiff allegedly saw the Duty Registrar on that same date, who confirmed that if the application was approved and any required fees paid, the summons would be deemed to have been filed on 31 December 2018. On 23 January 2019, the Business Support Coordinator to the Supreme Court emailed the plaintiff regarding postponement of part of the filing fees and the need to receive a re-drafted summons from the plaintiff with an additional order extending time to appeal. However, on 30 January 2019, he received an email from the Business Support Coordinator of the Supreme Court, indicating that the filing would not be backdated to 31 December 2018.

The relevant law

1. [21]

   Rule 50.3 of the UCPR sets out the time within which a summons commencing an appeal must be filed. It provides as follows:

2. [22]

   The relevant deadline for the filing of an application to appeal or to apply for an extension of time to appeal would have been up to 1 January 2019. The plaintiff seeks an order that the time within which to file an appeal be extended, so as to allow him to appeal the December 2018 judgment out of time, presumably pursuant to r 50.3(1)(c). The principles governing the discretion to extend the time to for the filing of a notice of appeal are set out by McColl JA in Jingalong Pty Ltd v Todd [2014] NSWCA 330. Her Honour said:

3. [23]

   Leave is required to appeal an interlocutory judgment or order of the Local Court, in accordance with s 40(2)(a) of the Local Court Act 2007 (NSW). The conditions for granting such leave are stated in Gibson v Drumm [2016] NSWCA 206 by the Court of Appeal. At [19], Beazley P and Simpson JA stated:

4. [24]

   A further consideration is the law concerning an application to strike out pleadings or dismiss proceedings, which were the bases of the defendants’ notice of motion of 10 September 2018. Rules 13.4 and 14.28 of the UCPR are in the following terms:

The plaintiff’s allegations and the defendants’ responses

1. [25]

   The plaintiff’s filings are sometimes enigmatically brief, and at other times unduly expansive. His affidavits frequently cross the line between evidence and submissions, perhaps unsurprisingly, given his lack of legal representation. A particular difficulty with understanding his case is that he has not given his version of events in a cohesive narrative, but rather as counterpoints to aspects of the defendants’ narrative.

2. [26]

   In order to better understand the material, I have condensed the plaintiff’s pleaded allegations of fact and the defendants’ responses, as set out in their affidavits filed in the Local Court.

3. [27]

   There are certain undisputed facts and documents. On 25 May 2011, the first defendant purchased shares in two companies, John F McEvoy Real Estate Pty Ltd and McEvoy & Bird Pty Ltd. The vendor, John McEvoy, was the plaintiff’s brother. The agreement for sale was executed as a deed on that date. There were five parties to the deed: John McEvoy, John F McEvoy Real Estate Pty Ltd, McEvoy & Bird Pty Ltd, the first defendant and, as a guarantor, the second defendant. The first defendant employed the plaintiff and his brother, pursuant to separate contracts of employment, which were referred to in the deed at cl 12:

4. [28]

   The employment contract concerning the plaintiff was signed by him and the second defendant on 25 May 2011. It contained provisions as to various conditions of employment, including the hours to be worked and the power of the employer to terminate the employment. It provided that the plaintiff’s salary would be $75,000, inclusive of superannuation. Those provisions including the following:

5. [29]

   The “commencement date” was defined as being 25 May 2011. The term “employer” was defined to be the first defendant. There were no provisions governing the obligations and rights of the parties in the circumstance that the employee resigned.

6. [30]

   The deed named the plaintiff and his brother as “key persons” in a part concerning restrictions against competition, which purported to restrain them from trading in competition with the first defendant. A clause in that section provided that the vendor agreed to:

7. [31]

   A form of the restraint of trade deed was annexed to the deed of sale. The plaintiff was to be a party to that deed. It referred to the “Employment Agreement” in a clause that referred to the vendor and key persons covenanting with the purchaser that they would not carry on or be engaged in certain businesses within certain geographical areas during certain periods, “other than at the request of the Purchaser for the benefit of the Purchaser pursuant to an Employment Agreement during the term of the Employment Agreement”. The plaintiff did not annex an executed copy of the deed to any of his affidavits.

8. [32]

   The plaintiff’s affidavit evidence is to the effect that on or about 29 March 2012, the defendant gave him permission to attend a doctor’s appointment later that day. On his return, they had a conversation. The plaintiff deposed as to what then occurred as follows:

9. [33]

   At some point the same day, the second defendant handed him a letter on the topic of the plaintiff working reduced hours. There was a discussion, the letter was not acted upon and he continued working his normal hours. The plaintiff did not indicate what was stated in the letter on the topic of “reduced hours”, or what his “normal” hours were.

10. [34]

    On or about 19 April 2012, the second defendant called the plaintiff into his office where the following conversation occurred:

11. [35]

    I assume the plaintiff infers that the reference to “the end of May” was to 25 May 2012, in view of the terms of cl 3 of the employment contract.

12. [36]

    The plaintiff stated that, on this understanding, he did not return to the workplace and his employment ceased on 25 May 2012. His annual salary was $75,000 and for his employment between 25 May 2011 and 25 May 2012, he was paid a total of $48,749.88, leaving a balance owing of $26,250.12. The plaintiff stated that the defendants never issued him with any wage slips or group certificates, and therefore he was unable to produce any such documents to prove the underpayment. Instead, he produced what was purported to be a summary table demonstrating the alleged underpayment, which he had created, based on his banking records.

13. [37]

    The defendants’ case, as derived from the second defendant’s affidavits, was as follows. As of 19 March 2012, the plaintiff was working five days per week. On that date, the second defendant met with the plaintiff and his brother, John McEvoy, in the first defendant’s offices. The following conversation occurred:

14. [38]

    The plaintiff expressly denied there was any meeting on 19 March 2012 with the second defendant, or agreement to vary his working hours or reduce his salary.

15. [39]

    The second defendant’s affidavit evidence was that on 29 March 2012, he handed the plaintiff a letter of the same date. This letter was annexed to one of his affidavits, addressed to the plaintiff from him as director of the first defendant, which stated:

16. [40]

    At the same time, the plaintiff handed the second defendant a tax invoice from a doctor, together with information on relaxation and depression, which was annexed to the affidavit. It referred to a consultation with the plaintiff on that date. At the time, the plaintiff said to the second defendant: “I cannot commit to working 3 days per week”. The second defendant responded: “Well, that could change everything. Maybe we need to go back to the option of only retaining John [McEvoy]”. I note that in his affidavits, the plaintiff did not admit or deny that the letter annexed to one of the second defendant’s affidavit was the one he referred to.

17. [41]

    By way of corroboration of his version of events, the second defendant relied upon an email dated 30 March 2012, which he annexed to one of his affidavits, from him and addressed to Leslie Coulcher, who he described as the first defendant’s accountant at that time. It states, in part:

18. [42]

    The plaintiff worked the three days per week pursuant to the agreement. On 31 March 2012, the second defendant handed the plaintiff a letter of that date, addressed to the plaintiff from the second defendant as director, purporting to be a notice of termination of the plaintiff’s employment:

19. [43]

    On 19 April 2012, whilst at his workplace, the second defendant heard the plaintiff yelling, but could not make out what he was saying. He walked to the part of the office where he heard the commotion. Another employee, Isabelle Swarts, said: “[The plaintiff] was very upset and angry. He resigned. He says he is leaving and not coming back”. The plaintiff did not attend the office again.

20. [44]

    In a letter dated 24 April 2012 and posted on the same date, the second defendant, as director, wrote to the plaintiff:

21. [45]

    The second defendant said he did not receive a reply and heard nothing further from the plaintiff, until he attended the office on 24 May 2018 and served the second defendant with his statement of claim.

22. [46]

    An affidavit sworn by Ms Swarts on 22 October 2018 was filed and read at the October 2018 hearing. She stated that she did not recall the circumstances of the plaintiff’s resignation. She carried out a search of her company email account, which yielded an email she had sent to the second defendant on 20 April 2012. It reads, in part:

23. [47]

    In his October 2018 affidavit, the plaintiff submitted that the defendants were liable on alternative bases. These were as follows:

24. [48]

    The employment contract, at cl 3, provided that the term of the plaintiff’s employment was a period of 12 months from 25 May 2011, and that it could only be varied by the employer by giving one month’s notice in writing after the expiration of five months from the commencement date. The first defendant had not done so, and indeed, the second defendant had expressly stated that the plaintiff would be paid “until the end of May”.

25. [49]

    The contract was part of the deed, by virtue of cl 12.2 of the deed. Pursuant to the deed, the second defendant was a guarantor. Accordingly, the second defendant was liable for the failure of the first defendant to comply with its obligations pursuant to the employment contract. The provisions in the deed setting out his responsibilities as guarantor were as follows:

26. [50]

    The plaintiff submitted that the second defendant:

27. [51]

    The plaintiff further submitted that s 550 of the Fair Work Act 2009 (Cth) applies. As at March – April 2012, s 550 provided:

28. [52]

    In his October 2018 affidavit, the plaintiff submitted that the “contraventions” by the second defendant for the purposes of s 550 were an underpayment of wages, a failure to provide pay slips and group certificates, a failure to make and keep employee records, his “unlawful or wrongful dismissal”, “[h]arsh, unjust or unreasonable dismissal” and “adverse action … by injuring the employee in his employment”, which allegedly involved the second defendant not giving him his “legal entitlements such as pay” and alleging he was guilty of stealing from the business.

29. [53]

    The defendants submitted in the Local Court that the plaintiff’s claim should be dismissed as statute-barred, pursuant to s 14(1)(a) of the Limitation Act 1969 (NSW), which provides as follows.

30. [54]

    The plaintiff’s response was that, since his employment ceased on 25 May 2012 and the statement of claim was filed on 24 May 2012, it was filed within time. Alternatively, the employment contract was an integral part of the deed and, pursuant to s 16 of the Limitation Act, the limitation period for an action on a cause of action founded on a deed is 12 years. That section provides:

31. [55]

    The plaintiff’s submissions as to how the employment contract was a part of the deed appeared to depend on the integral nature of the employment relationship to the value of the business to the purchaser, the liability of the vendor if the anticipated earnings from the vendor’s goodwill were not met, references to the “employment agreement” in the deed and the form of the restraint of trade deed.

32. [56]

    The plaintiff submits that, although he was not a party to the deed, pursuant to s 36C of the Conveyancing Act 1919 (NSW), he is in the same position in law as if he was a party to the deed. Section 36C provides:

33. [57]

    Section 7 of the Conveyancing Act defines “instrument” and “property” as follows:

34. [58]

    A further alternative argument advanced by the plaintiff was that the employment contract was for a term of 12 months, and therefore any underpayment of wages could not be ascertained until it had expired. Therefore, the cause of action did not arise until on or after 25 May 2012, which was the earliest date on which any underpayment could be ascertained, and the 12 month period runs from that date, in which case the statement of claim was filed in time.

The parties’ submissions on this application

1. [59]

   The plaintiff filed written submissions on the application, which were 46 pages in length.

2. [60]

   The plaintiff’s written submissions did not address the preliminary issue of whether leave should be granted to extend the time within which the appeal may be filed. However, the appeal grounds set out in the summons suggest that the plaintiff’s position is that he was not at fault; the “original version” of his summons was filed within time and he had been assured that once the filing fee issue was clarified, the filing would be retrospectively accepted. In support of this position, in an affidavit filed on 22 July 2019, the plaintiff annexed copies of correspondence with the Supreme Court registry.

3. [61]

   In their oral submissions, the defendants accepted that the plaintiff had an evidentiary basis for the delay in filing his summons, but submitted that the plaintiff should not be granted an extension of time to appeal, as the plaintiff did not have a “fairly arguable case” (see Jingalong Pty Ltd v Todd, quoted at [22] above) for seeking leave to appeal the decision. Although the plaintiff’s annexed correspondence did not corroborate his claim that he was advised the filing would be accepted retrospectively, for the purposes of his application, I nevertheless accept that he was so advised.

4. [62]

   The part of the appeal grounds of the summons that referred to the subject of the appeal for which leave was sought, focused exclusively on the October 2018 judgment. The plaintiff alleged that the magistrate made errors of law in the October 2018 judgment, in that he failed to properly consider the following:

   1. (1)

      the plaintiff’s claim that the employment contract had lasted for 12 months and therefore the statement of claim was filed in time;

   2. (2)

      the evidence as to the fact and quantum of the plaintiff’s loss of wages;

   3. (3)

      the defendants’ repudiation of the contract had not been accepted by the plaintiff, and

   4. (4)

      that the employment contract was a deed.

5. [63]

   In his written submissions, the plaintiff essentially submitted, irrelevantly, that in the December 2018 judgment, the magistrate erred in law, by failing to find that the second defendant’s late payment of wages was a breach of the employment contract that gave rise to an election to terminate the contract, but the plaintiff did not elect to terminate.

6. [64]

   In his oral submissions, the plaintiff agreed that an encapsulation of his complaint was that the magistrate did not have due regard to the injustice that would be occasioned to the plaintiff by the October 2018 judgment not being revisited. He submitted that the magistrate, in exercising his discretion, did not sufficiently take into account the consequences of the plaintiff’s absence on 23 October 2018 to put arguments to the Court in relation to his affidavit material that he had filed prior to that date. Had he been present at the October 2018 hearing, he could have assisted the magistrate with understanding his written submissions on the difficult area of the application of the principles of constructive dismissal and repudiation of the employment contract.

7. [65]

   The defendants submitted that leave should only be granted if there are:

8. [66]

   The plaintiff’s evidence and written submissions were before the Court and considered by the magistrate, so there was no “substantial reason” to set aside the judgment.

9. [67]

   The defendants submitted that if leave is granted, then as the December 2018 judgment involved an exercise in discretion, the plaintiff must establish an error in that exercise: see House v The King (1936) 55 CLR 499; [1936] HCA 40 per Dixon, Evatt and McTiernan JJ at 504-505:

Consideration

1. [68]

   The first matter for consideration is whether to grant an extension of time within which to file an appeal from the decision of the magistrate of 4 December 2018. The December 2018 judgment was an interlocutory judgment: Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 per Gibbs CJ at 248. As noted earlier, leave is required to appeal an interlocutory judgment or order of the Local Court, in accordance with s 40(2)(a) of the Local Court Act.

2. [69]

   The starting point for that consideration are the “four factors of general relevance to an application to extend time within which to appeal”, identified by McColl JA in Jingalong Pty Ltd v Todd. The third factor, “whether the applicant has a fairly arguable case”, is clearly crucial, and in view of the plaintiff’s plausible explanation for his late filing of the summons, I will move directly to an examination of the basis of the plaintiff’s claim concerning the December 2018 judgment and the defendant’s response to it.

3. [70]

   The magistrate’s December 2018 judgment, which was delivered ex tempore, was brief. His Honour noted there was “some material” to support the plaintiff’s explanation that he had not heard the magistrate set a hearing date at the 25 September 2018 hearing, which was an acknowledgement of the medical report annexed to the plaintiff’s affidavit, confirming his hearing disability.

4. [71]

   During the October 2018 hearing, the magistrate said that he had read the plaintiff’s filings and that they had been taken into account. His Honour observed that the plaintiff had appreciated the significance of the October 2018 hearing, and there was an obligation placed on him to make his case if it was to survive the defendant’s notice of motion. In relation to the instant hearing, the magistrate adverted to the further material relied upon by the plaintiff in support of his original claim.

5. [72]

   In neither the December 2018 judgment, nor the October 2018 judgment, did the magistrate mention the nature of the proceedings in the October 2018 hearing, which was a part-heard application to either strike out the statement of claim pursuant to r 14.28 of the UCPR, or dismiss the proceedings. Further, he did not consider the principles that applied to strike out applications. The October 2018 judgment reads as if it was exclusively a consideration of the application to dismiss the proceedings, although that is not explicitly stated as such.

6. [73]

   The power to strike out a pleading should be deployed sparingly. In State of New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177, Emmett JA (Macfarlan JA and Simpson J agreeing) stated, at [71]:

7. [74]

   On a hearing to strike out pleadings, the function of the court is not to evaluate the evidence on disputed issues of fact, as that is a matter for trial. The evidence of the party opposing the application is to be accepted at face value, and it is tenability of the cause of action pleaded that is in question: see, for example, Empire Shipping v Owners of the Ship “Shin Kobe Maru” (1991) 32 FCR 78; [1991] FCA 641 at 80.

8. [75]

   The summary dismissal of proceedings should only occur if there is a high degree of certainty about the ultimate outcome of the proceedings, and that power must always be exercised with caution: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] per Gaudron, McHugh, Gummow and Hayne JJ; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] per French CJ and Gummow J.

9. [76]

   In this case, there was a disputed issue of fact as to whether the plaintiff had resigned on 19 April 2012, that bore directly on the basis of the plaintiff’s statement of claim and the defendants’ notice of motion on both aspects of the orders sought, which was that the plaintiff’s action was statute-barred by s 14(1)(a) of the Limitation Act.

10. [77]

    The defendants’ evidence that the plaintiff had resigned on 19 April 2012 was consistently to the effect that he had resigned on that date, corroborated by documentation generated in the following days. The only significant inconsistency in that material was as to whether the plaintiff had communicated his resignation in person or by telephone. Whereas the second defendant’s affidavit evidence was that the plaintiff had resigned in person to Ms Swarts, her affidavit evidence was that she had no recollection of the circumstances. However, an email composed by her on 20 April 2012 stated that the plaintiff had tendered his resignation by phone. The plaintiff’s affidavit evidence before the magistrate at the October 2018 hearing was that “[t]he alleged conversation between the plaintiff and Isabelle Swarts did not occur”. The import of that contention, for the purposes of the hearing, was a simple denial of both versions with no corroborating evidence of his version.

11. [78]

    In my opinion, it was open to the magistrate at the October 2018 hearing to dismiss the proceedings, which his Honour did. It is inevitable that a determination of the factual dispute as to whether the plaintiff resigned, and if so, whether he did so on 19 April 2012, would be determined to the appropriate standard in favour of the defendants, with the effect that the action would be statute-barred by s 14(1)(a) of the Limitation Act.

12. [79]

    The plaintiff’s alternative submission, that the employment contract was for these purposes to be treated as part of the deed and therefore subject to a longer limitation term, would also inevitably be rejected. The employment contract does not purport to be a deed. It is expressed to be an “employment agreement” and is in the form of a contract. Although referenced in the deed, it is not expressed to be part of it. The fact that the deed references the “restraint of trade deed” is indicative that the parties were conscious at the time of differentiating between the separate forms of, and obligations of, a deed and contract.

13. [80]

    The factual dispute between the parties as to whether the first defendant had complied with the terms of the contract requiring one month’s notice would be determined in favour of the defendants, in view of the second defendant’s evidence and the corroborating documents generated shortly after the events in question.

14. [81]

    The plaintiff’s submission that the second defendant was liable for the failures of the first defendant is inconsequential, since liability of the first defendant could not be established. Whether the terms of the “personal guarantee” clause of the deed, cl 17, on a correct interpretation, extends as far as the plaintiff submits, is unnecessary to determine.

15. [82]

    As noted earlier, the plaintiff’s submissions based on the Fair Work Act, in his October 2018 affidavit, were made on a multitude of bases. There is a paucity of evidence in support of this claim of non-payment or underpayment of his salary, the non-issuance of pay slips or group certificates or the failure to keep employment records by the first defendant, which could have been advanced by the issuing of subpoenas, but that option has not been exercised. The basis of unlawful or wrongful dismissal would appear to depend on the same body of evidence as that which is relevant to the alleged breach of the employment contract, and therefore would not succeed.

16. [83]

    In his October 2018 judgment, in dismissing the statement of claim, the magistrate did not address all of the plaintiff’s submissions that he had set out in his October 2018 affidavit.

17. [84]

    At the December 2018 hearing, the magistrate did not address this shortcoming arising from his October 2018 judgment. That was a matter that was not expressly identified by the plaintiff in his submissions at the December 2018 hearing. In this sense, given the incompleteness of the magistrate’s examination of the plaintiff’s case in his October 2018 judgment, the plaintiff did have a “fairly arguable case” in relation to the December 2018 judgment and I would therefore grant leave to extend the time to appeal.

18. [85]

    However, despite those shortcomings, the ultimate dismissal of the plaintiff’s statement of claim is inevitable, when all the material the plaintiff has filed in both the Local Court and in this Court is considered. That being so, there is little utility in addressing that failure by remitting the matter for rehearing of the plaintiff’s notice of motion, since the remedy of a re-hearing of the defendants’ notice of motion would be futile; the dismissal of the plaintiff’s statement of claim is inevitable. In the words of the Court of Appeal in Gibson v Drumm, there is not an “injustice which is reasonably clear in the sense of going beyond what is merely arguable”. In Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54, the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) said, at 145:

Conclusion

1. [86]

   In these circumstances, it is appropriate to grant leave to extend the time within which the plaintiff may file an appeal, but to refuse leave to appeal.

Orders

1. [87]

   I make the following orders: