FEDERAL CIRCUIT COURT OF AUSTRALIA
JACKSON v P/T CONSTRUCTIONS WA PTY LTD	[2015] FCCA 1014	

Catchwords: 
INDUSTRIAL LAW – General protections claim – interlocutory application for summary dismissal of substantive application – adverse action – workplace right – workers compensation claim – whether person a partner in a business – whether person an employee – whether compensation for loss suffered because of a contravention.

PRACTICE AND PROCEDURE – Interlocutory application for summary dismissal of substantive application – explanation of no reasonable prospect of success – whether no reasonable prospect of success – whether frivolous, vexatious or abuse of process.

PARTNERSHIP – Whether person a partner or employee.

REMEDIES – Whether compensation for loss suffered because of a contravention.

WORDS AND PHRASES – “no reasonable prospect of success” – “compensation for loss suffered because of a contravention” – “myriad”.	

Legislation:
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth), Part 3-1, ss.12, 323, 340(1), 341, 342, 352, 360, 390, 392, 545(1) and (2), 548, 570
Fair Work Bill 2008 (Cth), Explanatory Memorandum
Fair Work Regulations 2009 (Cth), reg.3.01
Federal Circuit Court Rules 2001 (Cth), r.13.10
Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 17A, 18
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), r.26.01
Partnership Act 1895 (WA), ss.4, 7, 8
Workers Compensation and Injury Management Act 1981 (WA), ss.18, 19	

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; (2004) 78 ALJR 907; (2004) 206 ALR 387
Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392
Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
Bailey v Krantz (1984) 55 ALR 345 
Beck & Anor v Spalla & Anor [2005] FCAFC 82; (2005) 142 FCR 555
Board of Bendigo Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044
Cai v Tiy Loy & Co Ltd [2015] FCCA 715
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980; (2014) 314 ALR 1
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 3) [2012] FCA 697
Cowell v Quilter Goodison Co Ltd & Anor [1989] IRLR 392
Dafallah v Fair Work Commission & Anor [2014] FCA 328; (2014) 225 FCR 559; (2014) 242 IR 273
Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629
Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No.2) (1987) 16 FCR 410
Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275
Fazio v Fazio [2012] WASCA 72
Fencott v Muller (1983) 152 CLR 570 
Flavel v Railpro Services Pty Ltd (No.2) [2013] FCCA 1449
George v Fletcher (Trustee) [2010] FCAFC 53 
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62
Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317 
Hamilton v Whitehead (1988) 166 CLR 121
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 47 ATR 559; (2001) 106 IR 80
Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512 
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 
Jeffery & Katauskas Pty Limited v SST Consulting [2009] HCA 43; (2009) 239 CLR 75; (2009) 260 ALR 34; (2009) 83 ALJR 1190
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 
Kennedy v Australasian Coal and Shale Employees Federation & Anor (1983) 78 FLR 252; (1983) 9 IR 347
Kennedy v Australasian Coal and Shale Employees Federation & Anor (No.2) (1983) 74 FLR 241: (1983) 9 IR 355
Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 
Lee v Lees Airfarming [1961] AC 12
Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337
Lopes v Marino (1939) 38 AR (NSW) 188
Manday Investments Pty Ltd v Commonwealth Bank of Australia (No.3) [2012] FCA 751
Moorgate Tobacco Company Limited v Philip Morris Limited & Anor (1980) 145 CLR 457 
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; [2013] 234 IR 139
Newman v East Yarra Friendly Society Pty Limited Trading As My Chemist Pharmacy [2011] FCA 1262
PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; (1998) 153 ALR 520 
Pickering v Centrelink [2008] FCA 561
Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208 
Rana v Commonwealth of Australia [2013] FCA 189
Re Wakim; Ex parte McNally & Anor [1999] HCA 27; (1999) 198 CLR 511
Rogers v R (1994) 181 CLR 251
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
Scott & Ors v Commissioner of Taxation [2002] AATA 778; (2002) 50 ATR 1235 
Secretary of State for Trade and Industry v Bottrill [2000] 1 All ER 915
Shand v Ball (1936) 35 AR (NSW) 77
Spalla v St George Motor Finance Ltd (No.6) [2004] FCA 1699
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
State Bank of New South Wales Ltd v Stenhouse (1997) Aust Torts Reports 81-423
State of Victoria (Office of Prosecutions) v Grant [2014] FCAFC 184
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 
Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; (2014) 314 ALR 166
Tradesman Technologies Pty Ltd v Ameduri [2010] FMCA 1011
Transport Workers Union of Australia, NSW Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982
Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228 
Vukovic v Myer Pty Ltd [2014] FCCA 985 
Walker v Hirsh (1884) 27 Ch D 460
White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298

The Concise Oxford Dictionary of Current English (Oxford: Oxford University Press, 1984)
Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011)	
Applicant:	Dominic David Jackson	

Respondent:	P/t Constructions Wa Pty Ltd	

File Number:	PEG 266 of 2014	

Judgment of:	Judge Antoni Lucev	

Hearing date:	8 April 2015	

Date of Last Submission:	8 April 2015	

Delivered at:	Perth	

Delivered on:	1 May 2015	

REPRESENTATION
Counsel for the Applicant:	Ms C McKenzie	

Solicitors for the Applicant:	McKenzie and McKenzie	

Counsel for the Respondent:	Ms M Saraceni	

Solicitors for the Respondent:	Ellery Brookman Barristers and Solicitors	

ORDERS
(1)	Under r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth):
(a)	the first head of compensation claimed by the applicant at Part H of the “Form 2 – Amended Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Amended Claim”) for non-payment of nine weeks wages at the rate of $3000 per week; and
(b)	the third head of compensation claimed by the applicant at Part H of the Amended Claim for compensation for unfair dismissal and lying by the respondent,
be summarily dismissed, but otherwise the respondent’s application in a case filed 18 February 2015 seeking that the application be summarily dismissed be dismissed.
(2)	The respondent’s application in a case filed 18 February 2015 seeking that the applicant pay security for costs and that the proceedings be stayed until security for costs is paid be dismissed.
(3)	The applicant and respondent must confer concerning:
(a)	whether, and, if so, on what terms, the applicant might file and serve a Further Amended Claim;
(b)	the utility of further mediation; and
(c)	the costs, if any, of the respondent’s two applications in a case filed 18 February 2015, which are otherwise reserved,
prior to the next directions hearing.
(4)	The proceedings are otherwise adjourned to a directions hearing at 9.30am on 6 July 2015.
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Perth	
PEG 266 of 2014
Dominic David Jackson	
Applicant

And

P/t Constructions Wa Pty Ltd	
Respondent

REASONS FOR JUDGMENT
Two applications in a case
1.	The respondent P/T Constructions WA Pty Ltd (“P/T Constructions”) has filed two applications in a case which respectively seek:
a)	summary dismissal of the substantive application pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and costs under s.570 of the Fair Work Act 2009 (Cth) (“FW Act”); and
b)	security for costs and a stay until security for costs has been paid. This second application in a case was not pursued at the hearing of the applications in a case.
2.	The applications in a case were supported by an affidavit of Lawrence Michael Tierney (“Mr Tierney”) affirmed on 12 February 2015 (“Mr Tierney’s 2015 Affidavit”). Mr Tierney is a director of P/T Constructions. Two other affidavits were extensively referred to in the course of the hearing of the applications in a case: an earlier affidavit Mr Tierney affirmed on 10 October 2014 (“Mr Tierney’s October 2014 Affidavit”) and an affidavit of the applicant, Dominic David Jackson (“Mr Jackson”) affirmed on 26 November 2014 (“Mr Jackson’s 2014 Affidavit”).
Substantive application
3.	The substantive application which was filed on 15 December 2014 to which the applications in a case relate is set out in a “Form 2 –Amended Claim under the Fair Work Act 2009 alleging dismissal of Mr Jackson by P/T Constructions in contravention of a general protection” (“Amended Claim”) which alleges dismissal in contravention of a general protection.
4.	The Amended Claim alleges that Mr Jackson was employed by P/T Constructions for a period commencing on 21 May 2014, to either 11 June 2014 or 7 July 2014 on a construction site at the Eastern Goldfields Regional Prison (“EGRP”): Amended Claim, Part B, item 10 and Part G, item 24 at [1]. Mr Jackson’s 2014 Affidavit alleges that he was employed until 11 July 2014 by P/T Constructions: Mr Jackson’s 2014 Affidavit at [31].
5.	The factual substance of the Amended Claim is at Part G of the Amended Claim where Mr Jackson says:
	1	I was employed by P/T Constructions from 21-5-2014 to the 7/7/2014
	2	On 1st July 2014 I had a work accident and P/T Constructions at first accepted my claim on workers compensation and then denied it.
	3	Please see lodged affidavit
	4	Laurie Tierney then sacked me.
(Transcribed without amendment from the Amended Claim).
6.	At Part H of the Amended Claim compensation is claimed as the remedy, and in a schedule to the Amended Claim that compensation is particularised as follows:
	Amount of Compensation claimed
	1)	Non payment of wages for 9 weeks at the contract rate of $3000 per week
	$27000
	2)	Loss of income for 10 weeks until the move back to Perth could be affected
	$30000
	3)	Compensation for Unfair Dismissal and lying to Pindan and QBE workers compensation Insurers and Work Cover
	$25000
	–––––––––––––––––––––––––––––––––––––––––––––––––––––
	Total
	$82000
(Transcribed without amendment from the Amended Claim).
7.	It is relevant to note that the Amended Claim was prepared and filed by Mr Jackson at a time at which he was not legally represented. Although Mr Jackson is now legally represented no orders have been made for the filing of a Further Amended Claim, or have been sought to be made, in the relatively short time since Mr Jackson has been legally represented.
Response to the substantive application
8.	P/T Constructions filed a Response to the substantive application on 17 February 2015 opposing the orders sought by Mr Jackson and seeking a dismissal with costs. The grounds of opposition assert that:
a)	Mr Jackson was not an employee of P/T Constructions;
b)	even if Mr Jackson were an employee, no provision of the FW Act had been breached; and
c)	the Court did not have power to award the remedy claimed to the extent that it did not fall within the meaning of “compensation for loss suffered because of the contravention” in accordance with s.545(2)(b) of the FW Act,
and sought an order for payment of costs under s.570 of the FW Act.
Contravention of a workplace right general protection
9.	Under s.340(1) of the FW Act a person must not take adverse action against another person:
a)	relevantly, because the other person has a workplace right, or has exercised a workplace right, or proposes, or has at any time proposed to, exercise a workplace right; or
b)	to prevent the exercise of a workplace right by the other person.
10.	A causal link must be established between any alleged adverse action in s.342 of the FW Act which is complained of, here an alleged dismissal from employment, and the matters in s.340 of the FW Act: Board of Bendigo Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044 at [62] per French CJ and Crennan J and [104] per Gummow and Heydon JJ. A workplace right includes the ability to initiate, or participate in, a process or proceedings under a workplace law: FW Act, s.341(1)(b).
Summary dismissal
FCC Rules, r.13.10
11.	Rule 13.10 of the FCC Rules provides as follows:
	The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
	                     (a)  the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
	                     (b)  the proceeding or claim for relief is frivolous or vexatious; or
	                     (c)  the proceeding or claim for relief is an abuse of the process of the Court.
12.	On the basis of r.13.10 of the FCC Rules P/T Constructions seeks an order summarily dismissing Mr Jackson’s substantive application because:
a)	there is no reasonable prospect of successfully prosecuting the application; and
b)	the application is:
i)	frivolous;
ii)	vexatious; and
iii)	an abuse of process of the Court.
No reasonable prospect of success
13.	Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No. 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
14.	In Spencer it was observed that:
a)	no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)	the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)	the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)	where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)	the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)	the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)	full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
15.	In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed in relation to the phrase “no reasonable prospect of success”, that:
a)	a court must be satisfied that the applicant has no reasonable prospect of success;
b)	evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)	it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)	if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)	in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)	a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)	the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)	what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J (“Dandaven”).
16.	The Court’s power to summarily dismiss an application is discretionary, and P/T Constructions in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeve J (“Cassimatis”).
Whether relationship of employer and employee existed
17.	P/T Constructions alleges that Mr Jackson was not an employee of P/T Constructions, and the Amended Claim therefore has no reasonable prospect of success, because Mr Jackson would had to have been an employee of P/T Constructions in order to bring:
a)	a general protections claim under the FW Act; and
b)	a workers compensation claim under ss.18 and 19 of the Workers Compensation and Injury Management Act 1981 (WA) (“WCIM Act”), which is said to be the workplace right sought to be exercised.
Mr Jackson disputes that he was not an employee, and says that he was an employee of P/T Constructions for a period commencing on 21 May 2014 and ending on either 11 June 2014 or 7 or 11 July 2014.
18.	Mr Tierney’s 2014 Affidavit asserts that the relationship between P/T Constructions, a company called Fantastic Building Works Pty Ltd (“Fantastic”) (of which Mr Jackson was a director: Mr Tierney’s 2015 Affidavit at [22] and Annexure LT-4), Mr Tierney and Mr Jackson was one whereby:
a)	there was an oral agreement for the hire of equipment by Fantastic from P/T Constructions: Mr Tierney’s 2014 Affidavit at [7]-[9];
b)	consequent upon P/T Constructions obtaining a contract on the EGRP site to provide brick and block laying goods and services on site, a contract which Mr Jackson witnessed the signing of: Mr Tierney’s 2014 Affidavit at [30], Mr Jackson was involved on the EGRP site by reason of the fact that P/T Constructions and Mr Tierney provided Mr Jackson with site access to enable him to network and to scope business for Fantastic: Mr Tierney’s 2014 Affidavit at [12]-[20], [30] and [40]-[41];
c)	Mr Jackson applied to the Department of Corrective Services for a swipe card to access the EGRP site, which enabled him to come and go “at his discretion, to facilitate his networking”: Mr Tierney’s 2014 Affidavit at [40];
d)	Mr Jackson visited the site often, and Mr Tierney understands that he sought work on behalf of Fantastic, but that no work was awarded to Fantastic: Mr Tierney’s 2014 Affidavit at [44]-[49];
e)	Mr Tierney did not give permission to Mr Jackson to sit in on early morning pre-start meetings, and he asked P/T Constructions’ site manager, Mr Gazzard about this, and Mr Gazzard told him that Mr Jackson had not asked Mr Gazzard for permission to sit in on the meetings, and that Mr Gazzard had never directed or instructed Mr Jackson to do so on behalf of P/T Constructions: Mr Tierney’s 2014 Affidavit at [45]; and
f)	at no time did P/T Constructions have a contractual relationship with Mr Jackson to undertake work on site, whether as an employee of, or contractor to, P/T Constructions, and at no time did any person give directions or instructions to Mr Jackson to undertake work for P/T Constructions: Mr Tierney’s 2014 Affidavit at [52]-[53].
19.	Mr Jackson’s 2014 Affidavit asserts that:
a)	in March 2014 Mr Tierney contacted Mr Jackson to advise that he had won a job in Kalgoorlie, and that Mr Tierney asked Mr Jackson to become “a partner in the project”, and that Mr Jackson would need $70,000 to loan to P/T Constructions “to pay wages etc” before monies flowed from the head contractor to P/T Constructions: Mr Jackson’s 2014 Affidavit at [8];
b)	a sum of $50,000 by way of loan to P/T Constructions from Mr Jackson was agreed “to finance the job”: Mr Jackson’s 2014 Affidavit at [9], but Mr Jackson has paid in excess of $50,000 by way of a loan to P/T Constructions: Mr Jackson’s 2014 Affidavit at [10];
c)	there is a dispute between Mr Jackson and Mr Tierney as to the purpose of the payment of the sum in excess of $50,000, with Mr Tierney claiming that it is for monies owed on the hire of equipment, and Mr Jackson disputing he ever hired any equipment from Mr Tierney or that he owed Mr Tierney any money: Mr Jackson’s 2014 Affidavit at [11]; see also Mr Tierney’s 2014 Affidavit at [9];
d)	on 15 March 2014 Mr Tierney emailed Mr Jackson a breakdown of the costs and profit of the job and a copy of the contract, and a meeting was held at Mr Tierney’s office at which it was discussed that Mr Jackson would become a director of P/T Constructions: Mr Jackson’s 2014 Affidavit at [12]-[13];
e)	Mr Tierney and Mr Jackson flew to Kalgoorlie to sign the contract for the job (which was at the EGRP site), but before signing the contract they had a meeting at a motel at which it was discussed that:
i)	Mr Tierney and Mr Jackson would receive a $3,000 a week “wage” for every week worked on the job at the EGRP site;
ii)	Mr Tierney and Mr Jackson would rent a house for the employees of P/T Constructions, and would need a housekeeper-cook, and it was agreed that Mr Jackson’s partner (Ms Filitonga) would do the cooking and cleaning for $800 a week; and
iii)	Mr Tierney and Mr Jackson would split the profits from the job equally: Mr Jackson’s 2014 Affidavit at [14]-[15];
f)	a meeting was held with Pindan (who it appears were the head contractor on the EGRP site) at which both Mr Tierney and Mr Jackson signed the contract, and Mr Jackson and Mr Tierney looked for a property to rent which was found at 78 Richardson Street in Boulder: Mr Jackson’s 2014 Affidavit at [16]-[17];
g)	Mr Jackson attended a Pindan induction course with other employees of P/T Constructions, and obtained a swipe card in the name of P/T Constructions, and says that he was reprimanded by a Pindan manager for safety breaches relating to the use of a brick saw when cutting blocks for P/T Constructions: Mr Jackson’s 2014 Affidavit at [18];
h)	Mr Jackson commenced work on 21 May 2014 and all equipment for work (including safety equipment) was supplied by P/T Constructions bar one bar bender which was Mr Jackson’s equipment: Mr Jackson’s 2014 Affidavit at [21];
i)	Mr Jackson’s work hours were 6.30am to 4.30pm Monday to Saturday and 9.00am to 4.00pm on Sundays: Mr Jackson’s 2014 Affidavit at [22];
j)	together with the “supervisor”, Mr Gazzard, Mr Jackson came to a decision that Mr Jackson would attend the pre-start meeting instead of Mr Gazzard, which meant that he started at 6.00am on Monday to Saturday and 8.45am on Sundays: Mr Jackson’s 2014 Affidavit at [23];
k)	Mr Jackson would take direction from or have a discussion with Mr Gazzard each day about his daily activities, and sometimes would have more than one discussion, but rarely took direction from Mr Tierney as Mr Tierney was seldom at the place where physical work was done, although Mr Tierney would come down to the site with Mr Gazzard and Mr Jackson on the days that he was in Kalgoorlie: Mr Jackson’s 2014 Affidavit at [23]-[24];
l)	after the pre-start meeting all of the contractors, including Mr Jackson, would sign on to a sign-on sheet, and would obtain general information about the day’s activities which Mr Jackson would take back to the P/T Constructions’ shed and share with other P/T Constructions’ employees, including Mr Tierney, following which they were all required to sign on to another sign-on sheet which was given to Pindan: Mr Jackson’s 2014 Affidavit at [25]-[26];
m)	all employees were also required to fill out a pre-start card: Mr Jackson’s 2014 Affidavit at [27];
n)	under the heading “What Work I did for P/T Constructions” Mr Jackson lists his duties as follows:
	Drilling and epoxying starter bars
	Making wooden window frames
	Removing frames from buildings
	Moving blocks
	Setting up and moving scaffold
	Using the quick cut concrete saw
	Demolition of walls
	Mixing core fill and mortar
	Cleaning up
	Laying out bars
	Cutting Steel
	Washing out cavities
	Loading scaffold
	Taking block count
	Building Pits for Frews another contractor
	Loading slap
	Cutting blocks
	Putting up bunting
	Putting on starter caps
	Directing Pindan what material to deliver
	Using the radio
	Moving the container
	Starting the generators
	Core filling the blocks
	Sorting out steel schedule
	Sorting out door schedule
	Helping to mark out slab
	Setting up brick saw
	Taking faulty machinery to get repaired
	Taking Photos of work onsite
	Organizing safety equipment
	Picking up materials
	Liaising with material suppliers
	Attending safety meetings
	Attending contractors meetings
	Liaising with other contractors
	Outfitting employees in personal safety gear
	which list Mr Jackson says is not exhaustive: transcribed without amendment from Mr Jackson’s 2014 Affidavit at [28];
o)	Mr Jackson was “safety officer for the company”, the latter appearing, contextually, to be a reference to P/T Constructions: Mr Jackson’s 2014 Affidavit at [29];
p)	Mr Jackson once worked for three days with two other P/T Constructions’ employees to build pits for another contractor at the EGRP site and P/T Constructions hired out the labour of Mr Jackson and the two other P/T Constructions’ employees at $100 per hour to each of the three contractors concerned: Mr Jackson’s 2014 Affidavit at [34]; and
q)	the allegation that Mr Jackson was networking at EGRP for concrete work “is ludicrous”, and Mr Jackson says that he was working full-time for P/T Constructions seven days a week in circumstances where the contract for the concrete work had already been given out by Pindan before the contract for the brickwork was signed, and that he was never given or asked for plans or the contract for the concrete work, and that another contractor had been given part of the concrete so that two contractors were doing the concrete work: Mr Jackson’s 2014 Affidavit at [36].
20.	P/T Constructions argues that Mr Jackson was not an employee, but on the evidence that Mr Jackson has adduced, that Mr Jackson was in partnership with Mr Tierney. In this regard, P/T Constructions pointed to Mr Jackson’s evidence that:
a)	Mr Tierney asked Mr Jackson to “become a partner in the project”: Mr Jackson’s 2014 Affidavit at [8];
b)	Mr Jackson agreed to a loan to P/T Constructions “to finance the job”: Mr Jackson’s 2014 Affidavit at [9]; and
c)	profits would be split equally: Mr Jackson’s 2014 Affidavit at [15].
21.	P/T Constructions argued that the above evidence established a commercial arrangement at arm’s length, and that the commercial arrangement was a partnership.
22.	Section 7 of the Partnership Act 1895 (WA) (“Partnership Act”) deals with the meaning of “partnership” and provides as follows:
	(1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit. 
	(2) In deciding whether a partnership does or does not exist in any particular case, the court shall have regard to the true contract and intention of the partners as appearing from the whole facts of the case.
23.	From the definition in s.7(1) of the Partnership Act three basic factors emerge. Firstly, that “business” is given a very wide meaning, and includes every conceivable trade, occupation or profession, but may not include every activity that merely results in monetary gain. Secondly, to constitute a partnership the business must be carried on by, or on behalf of, all the alleged partners. Thirdly, the partnership must be carried on for the purpose of profit. But, as s.7(2) of the Partnership Act makes clear, a court must “have regard to the true contract and intention of the partners as appearing from the whole facts of the case” in determining whether or not a partnership has been formed: see Fazio v Fazio [2012] WASCA 72 at [53] per Murphy JA (with whom Pullin JA at [13] and Newnes JA at [14] agreed) (“Fazio”).
24.	Section 4 of the Partnership Act precludes a partnership which includes P/T Constructions, because it appears to be registered as a company under the Corporations Act 2001 (Cth): Mr Tierney’s 2014 Affidavit at [1] and Mr Tierney’s 2015 Affidavit at [1].
25.	On Mr Jackson’s evidence some of the elements of a partnership are arguably present, but far from conclusively so. For example, there is no evidence of an agreement to share losses: Walker v Hirsh (1884) 27 Ch D 460, or of any authority to obtain credit on behalf of the partnership: Shand v Ball (1936) 35 AR (NSW) 77 at 82 per Browne J; Lopes v Marino (1939) 38 AR (NSW) 188, both of which are strong indicators of partnership. Further, it is possible to share profits without being a partner: s.8(3) of the Partnership Act provides that a contract for remuneration of a servant engaged in a business by a share of the profits does not of itself make the servant a partner in the business or liable as such. Thus, the splitting of profits, whilst prima facie evidence of partnership, does not preclude an employment relationship from existing, particularly as that employment relationship is not alleged to be between Mr Jackson and Mr Tierney, but rather between Mr Jackson and P/T Constructions.
26.	Turning to Mr Tierney’s evidence, the case for a partnership becomes weaker because it is apparent that Mr Tierney facilitated the relationship with Mr Jackson for the purposes of allowing Mr Jackson to network on the EGRP site, and not, on Mr Tierney’s evidence, for the purposes of conducting a business in common for the purpose of profit: Mr Tierney’s 2014 Affidavit at [15], [20], [40] and [44]. Furthermore, Mr Tierney’s evidence does not lend itself, firstly, to a finding that both Mr Tierney and Mr Jackson were intending to act as agents binding the business of the asserted partnership, nor, secondly, to Mr Jackson having a right of management or voice in the affairs of the business to be conducted by the partnership: Fazio at [53]-[54] per Murphy JA.
27.	In all of the above circumstances, and where a court must assess “the whole facts of the case”: Partnership Act, s.7(2), in order to determine if there is a partnership, the Court is not satisfied that the evidence presently before it is sufficient to establish a partnership as alleged by P/T Constructions, and is not nearly sufficient to warrant the Court exercising its discretion under r.13.10 of the FCC Rules to summarily dismiss the proceedings. Ultimately, the evidence at hearing may establish that there was a partnership of the type presently asserted by P/T Constructions, but for present purposes, the evidence simply does not establish that partnership at all, or, alternatively, to the standard required in order to obtain an order for summary dismissal of the proceedings.
28.	There is some suggestion that Mr Jackson was, or was intended to be, a director of P/T Constructions. There is no present evidence that he was a director, but even if he were so, that would not preclude his also being an employee of P/T Constructions, if he otherwise met the relevant tests to establish that he was an employee: see Hamilton v Whitehead (1988) 166 CLR 121; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; (2004) 78 ALJR 907; (2004) 206 ALR 387 at [45]-[52] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ; Lee v Lees Airfarming [1961] AC 12; Secretary of State for Trade and Industry v Bottrill [2000] 1 All ER 915.
29.	Concomitant with Mr Tierney’s argument alleging a partnership is the assertion that Mr Jackson was therefore not an employee. Ordinarily, a partner cannot be a party to a contract of employment with a partnership of which the partner is a part because the partnership is not a separate legal entity: Scott & Ors v Commissioner of Taxation [2002] AATA 778; (2002) 50 ATR 1235 at [16] per Member McCabe; Cowell v Quilter Goodison Co Ltd & Anor [1989] IRLR 392 per Lord Donaldson MR at 393 and Glidewell LJ at 394 (with whom Farquharson LJ at 394 agreed). In circumstances where the Court has concluded that there is presently insufficient evidence to establish a partnership, the relationship of employer and employee between P/T Constructions and Mr Jackson cannot, therefore, be excluded on the basis that Mr Jackson is a partner in a partnership providing services on the EGRP site.
30.	In order to create a contract of employment various elements must be present, namely:
a)	an intention between the parties to create an enforceable legal relationship;
b)	an offer by one party and its acceptance by the other;
c)	a contract supported by valuable consideration;
d)	the legal capacity to make the contract;
e)	genuine consent to the terms of the contract; and
f)	that the contract must not be rendered ineffective by reason of conduct illegal or contrary to public policy:
See Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011) page 96 at [4.40] (“Macken’s Law of Employment”)
31.	Whether a person is an employee or not is a question of law: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228 (“Visiting Medical Officers Association”); Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438, and there are many factors which may point to a contract being a contract of employment, with their relative importance varying with the circumstances. Control of the employee exercisable by the employer is a prominent factor, but not the sole criterion, and is one of a number of possible indicia of employment, including but not limited to “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision of holidays, the deduction of income tax and the delegation of work by the putative employee”: Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 at 24 per Mason J (with whom, on this point, Brennan and Deane JJ agreed at 47 and 49 respectively) (“Brodribb Sawmilling”); Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 47 ATR 559; (2001) 106 IR 80 at [43]-[45] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Visiting Medical Officers Association at [19] per Wilcox, Conti and Stone JJ.
32.	The Court is obliged to take Mr Jackson’s evidence at its highest: Dandaven at [6] per Gilmour J. On that basis, there is sufficient evidence that at the motel meeting the parties evinced an intention to create an enforceable legal relationship, and that there was an offer by Mr Tierney, accepted by Mr Jackson, supported by valuable consideration of a wage of $3000 a week, to which the parties, namely, Mr Jackson and Mr Tierney on behalf of P/T Constructions, both having the legal capacity to make the contract, consented: Mr Jackson’s 2014 Affidavit at [15]. The evidence that there was a contract of employment is however reinforced by Mr Jackson’s evidence that:
a)	he “commenced work” on 21 May 2014;
b)	all safety and other equipment were supplied by P/T Constructions, bar a bar bender that Mr Jackson took to the EGRP site;
c)	he worked regular working hours Monday to Sunday;
d)	he would take direction from or discuss his duties with P/T Constructions’ site supervisor Mr Gazzard each day;
e)	he was required to sign on each day;
f)	he did the work set out at para.19(n) above;
g)	he was safety officer for P/T Constructions; and
h)	P/T Constructions hired out his labour to other contractors.
See, generally, Mr Jackson’s 2014 Affidavit at [21]-[29] and [34].
33.	The Court notes that Mr Jackson was, it appears, not paid the wage he alleged he was promised, and, therefore, there is no evidence of deduction of PAYG taxation instalments, or of the making of superannuation contributions or the accrual of leave entitlements for Mr Jackson by P/T Constructions. That is, on Mr Jackson’s case, explained by the fact that he was entitled to have those matters attended to by P/T Constructions, but it failed to do so, because it did not pay him the agreed wage, either in part or at all.
34.	In the above circumstances, the Court is of the view that, although much of the evidence is in dispute, taking Mr Jackson’s evidence at its highest, there is sufficient evidence of the formation of a contract of employment, and of:
a)	control of Mr Jackson exercisable by P/T Constructions (through Mr Gazzard);
b)	entitlement to remuneration (and consequently to the deduction of PAYG entitlements, contributions to superannuation and accrual of leave entitlements);
c)	the provision and maintenance of equipment by P/T Constructions; and
d)	regular ordinary hours of work,
to make an arguable case for Mr Jackson that he was an employee of P/T Constructions.
35.	The evidence at hearing may or may not establish that Mr Jackson was an employee of P/T Constructions, but for present purposes the evidence is sufficient to show that Mr Jackson has an arguable case that he was an employee of P/T Constructions, and, therefore entitled to make a general protections claim and the workers compensation claim. It follows that P/T Constructions’ argument that Mr Jackson’s claim has no reasonable prospect of success because he was not an employee of P/T Constructions, and therefore that the proceedings ought to be summarily dismissed on that basis, has not been made out.
The workers compensation claim
36.	P/T Constructions claims that the reason for the dismissal of Mr Jackson was not based upon a workplace right, namely his workers compensation claim, because:
a)	the workers compensation claim was not, on the Amended Claim made or on the evidence in Mr Jackson’s 2014 Affidavit, said to be the reason for the adverse action, that is, the dismissal; and
b)	on the facts there is no causal nexus between the workers compensation claim made by Mr Jackson and Mr Jackson’s dismissal, and the reason for Mr Jackson’s dismissal did not relate to a workplace right, being the workers compensation claim, but rather a dispute between he and Mr Tierney which arose on 11 July 2014 at the EGRP site.
37.	Mr Jackson’s evidence in relation to the workers compensation claim and his alleged dismissal is as follows:
	30. On the 1of July 2014 I had a work accident. That evening I attended the medical Centre at Boulder where they directed me to the hospital. The Hospital told me I would need a operation, On the 2nd July I told Mr. Tierney. He gave the approval to Hand Doc the plastic surgery service. They rang me then I flew to Perth. Mr. Tierney gave the permission that evening to St John of God Hospital which they have confirmed in a letter.
	31. After flying back to Kalgoorlie from the operation and going back to work the next day. Mr. Tierney indicated he was no longer willing to go through his workers compensation. Things deteriorated and on 11 of July during the pre-start meeting Mr. Tierney called me out and as my employer cancelled my swipe card.
	33. The only other days I had off were to go to Perth for the operation. I was off work for 3 days and then returned to work. Every other day including Sunday I worked.
(Mr Jackson’s 2014 Affidavit at [30]-[31] and [33] – transcribed without amendment).
38.	Mr Tierney’s version of the events concerning Mr Jackson’s injury, workers compensation claim and exclusion from the EGRP site is, in summary, as follows:
a)	he initially did not know that Mr Jackson had been injured and gone to Perth. Mr Jackson later rang him and said that he had had to have surgery on his thumb and asked for P/T Constructions’ workers compensation insurance policy details. Mr Tierney refused to give Mr Jackson those details on the basis that Mr Jackson did not work for P/T Constructions: Mr Tierney’s 2014 Affidavit at [54]-[57];
b)	Mr Tierney did not provide the workers compensation insurance policy details to Mr Jackson’s hospital when the hospital rang and requested them: Mr Tierney’s 2014 Affidavit at [62];
c)	when Mr Jackson returned to Kalgoorlie a day or so later and asked Mr Tierney for P/T Constructions’ workers compensation insurance policy details, Mr Tierney told Mr Jackson he had never worked for P/T Constructions and that there was no incident report, witness or anything else to support what he was saying and that the dates of his absence did not correlate with the hospital records: Mr Tierney’s 2014 Affidavit at [63]-[64];
d)	Mr Tierney confirmed with the safety personnel of the head contractor, Pindan, that P/T Constructions was not aware of any alleged accident or injury to Mr Jackson and that no incident report or incident information had been submitted by Mr Jackson: Mr Tierney’s 2014 Affidavit at [65]-[67];
e)	Mr Jackson later asked Mr Tierney to do him a personal favour and put in an incident report. Mr Tierney says that that would have required him to falsify the dates on that report, and he refused to do so, and told Mr Jackson to contact the hospital and provide them with his own insurance details, following which Mr Jackson “got very nasty and threatened me verbally” and “called me a cunt and told me that he would find a way to fuck my company up”: Mr Tierney’s 2014 Affidavit at [68]-[70] - the quotes are from [70];
f)	Mr Jackson continued to go on to the EGRP site using a swipe card (which had been provided to him by Pindan) and was abusive to Mr Tierney and Mr Tierney’s site supervisor, Mr Gazzard. This resulted in Mr Tierney telling Mr Jackson he was no longer welcome on the site and that Mr Tierney was not going to tolerate Mr Jackson’s behaviour, which resulted in Mr Jackson saying that he would not leave until his injury claim had been made under P/T Constructions’ workers compensation insurance: Mr Tierney’s 2014 Affidavit at [71]-[74]; and
g)	on the morning of 11 July 2014 Mr Jackson threatened to have Mr Tierney “done in” and swore at him, which resulted in Mr Tierney telling Mr Jackson to leave the EGRP site, which Mr Jackson refused to do. Consequently, Mr Tierney informed the Pindan site manager of what had occurred and Mr Jackson’s swipe card was cancelled and Mr Jackson was asked to leave the site due to his threatening behaviour: Mr Tierney’s 2014 Affidavit at [76]-[77] - the quote is from [76].
39.	Although not pleaded or particularised with any precision, or by reference to relevant general protections sections of the FW Act, Mr Jackson’s claim is nevertheless recognised by P/T Constructions, correctly, as “a general protections claim made by … [Mr Jackson] alleging that he exercised his right to make a workers compensation claim … against … [P/T Constructions] and that subsequently his employment was terminated …”: P/T Constructions’ Outline of Submissions at [9]. P/T Constructions argue, however, that Mr Jackson “… has not alleged that the termination of his employment was on the ground that he exercised his right to and had made a workers compensation claim”: P/T Constructions’ Outline of Submissions at [9], and that the “nature of the amount of compensation being sought (non-payment of wages; lost income until move back to Perth and compensation for unfair dismissal) further confirms that the real nature of the … claim … is in no way connected to any adverse action …”: P/T Constructions’ Outline of Submissions at [10]. P/T Constructions therefore submits that, absent any causative link between the termination and the alleged workplace right, being the lodgement of a workers compensation claim, Mr Jackson’s claim has no reasonable prospect of success.
40.	In the Court’s view the causative link is arguably expressly made, and is certainly inherent, in the Amended Claim and the supporting evidence in Mr Jackson’s 2014 Affidavit at [31]. That evidence essentially says that:
a)	Mr Jackson had a work accident and suffered an injury which required an operation for which Mr Tierney “gave … approval”, and which would appear was the subject of an operation at a Perth hospital;
b)	Mr Jackson flew back to Kalgoorlie following his hand operation and returned to work the next day, and Mr Tierney, on behalf of P/T Constructions, then said to Mr Jackson that P/T Constructions was no longer willing to allow Mr Jackson to claim through P/T Constructions’ workers compensation insurance; and
c)	from there, the matter “deteriorated” and on 11 July 2014 Mr Jackson’s swipe card was cancelled by Pindan, at Mr Tierney’s request, effectively terminating his employment because he could no longer access the EGRP site.
41.	The Court does not accept, for present purposes, that there is necessarily an evidentiary gap in relation to what occurred between the day that Mr Jackson returned to work and was told, on his version of events, that P/T Constructions’ workers compensation insurance could not be utilised in respect of his injury, and the termination on 11 July 2014. The assertion that “[t]hings deteriorated” between the time that Mr Jackson returned to work and 11 July 2014 is arguably indicative of an ongoing dispute with respect to Mr Jackson’s workers compensation claim, which ultimately resulted, on Mr Jackson’s case, in termination of his employment by P/T Constructions on 11 July 2014. It is a version of events which is even arguable on Mr Tierney’s evidence which demonstrates ongoing attempts by Mr Jackson to have P/T Constructions recognise a workers compensation claim by Mr Jackson as an employee, and which, as a consequence of P/T Constructions’ refusal to deal with the matter, resulted in a deterioration in the relationship between Mr Jackson and P/T Constructions and Mr Tierney, the consequence of which was the termination of any relationship between Mr Jackson and P/T Constructions. Given the Court’s earlier findings concerning whether Mr Jackson was an employee that termination was, arguably, the dismissal of Mr Jackson from employment by P/T Constructions. The Court does not discount the potential seriousness of the misconduct alleged against Mr Jackson by P/T Constructions, but notes that there may be more than one reason for the taking of adverse action: FW Act, s.360; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; [2013] 234 IR 139 at [44]-[45] per Gray J, and that the prohibited reason need not be the sole reason for the impugned conduct, so long as it is included in the particular reasons for the adverse action: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [198] and [238]-[239] per Mortimer J.
42.	On the evidence presently before the Court it is tolerably clear that Mr Jackson asserts, and there is sufficient basis to argue, that the reason, or a reason, he was dismissed from employment was for exercising a workplace right, namely, the initiation or participation in a process, that is, making or proposing to make a workers compensation claim, under a workplace law, namely, and it does not appear to be in dispute, the WCIM Act under which a workers compensation claim would be made in Western Australia. The WCIM Act is a “workplace law” as defined in s.12 of the FW Act because it is a law of a State which regulates, in the context of workplace injury, relationships between employers and employees: Vukovic v Myer Pty Ltd [2014] FCCA 985 at [97] per Judge Cameron; Cai v Tiy Loy & Co Ltd [2015] FCCA 715 at [118]-[120] per Judge Manousaridis. The evidence also does not preclude the possibility that the workers compensation claim dispute between Mr Jackson and P/T Constructions was a reason, or part of the reason, for the alleged dismissal of employment of Mr Jackson by P/T Constructions. It follows that the evidence does not presently establish that the sole reason for the dismissal was Mr Jackson’s alleged misconduct.
43.	The evidence presently before the Court in relation to the workers compensation claim therefore manifests real issues of fact to be determined, and real room for doubt as to the contending contentions presently before the Court, and in relation to which it is, in the Court’s view, only evidence to be tested at a final hearing which will facilitate the Court being able to reach a properly reasoned and conclusive determination. In this respect the observations of the Federal Court in Dandaven are apposite: “in a case where evidence may give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading”: Dandaven at [6] per Gilmour J.
44.	The Court is therefore not prepared to summarily dismiss the substantive application on the basis that there is no reasonable prospect of success by reason of a lack of a causative link between the lodgement of, or making of, a workers compensation claim by Mr Jackson and his alleged dismissal from employment with P/T Constructions. That causative link is one which, on the evidence presently available, might arguably be made out at a full hearing.
45.	The Court notes that the claim made by Mr Jackson might be arguable, on essentially the same facts as give rise to the workers compensation claim, by reason of a contravention of s.352 of the FW Act which prohibits an employer dismissing an employee temporarily absent from work because of an illness or injury of a kind prescribed by reg.3.01 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”). Although this issue is raised in submissions by Mr Jackson: Mr Jackson’s Submissions, para.17, the Court need not address that submission further, for whilst it might be arguable, it is not apparent that it is pleaded (in any form) in the Amended Claim, nor is there presently in evidence any evidence of a kind prescribed by reg.3.01 of the FW Regulations.
Whether evidence of decision-maker refutable
46.	It was also argued by P/T Constructions that Mr Tierney’s evidence was that of the decision-maker, and was irrefutable. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980; (2014) 314 ALR 1 at [8] per French CJ and Kiefel J (“BHP Coal”) it was observed that:
	In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [(2012) 248 CLR 500 at 517 [45], French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision-maker as to his or her reasons. The court is not obliged to accept such evidence. It may be unreliable for a number of reasons. For example, other objective evidence may contradict it.
The above passage in BHP Coal was cited with approval and followed by the plurality of the Full Court of the Federal Court of Australia in State of Victoria (Office of Prosecutions) v Grant [2014] FCAFC 184 at [49] per Tracey and Buchanan JJ.
47.	In this case Mr Tierney’s version of events is disputed. At final hearing Mr Tierney’s evidence may, or may not, be accepted by the Court. For reasons set out above, there is sufficient evidence available on Mr Jackson’s case to enable an argument to be put that:
a)	he was an employee of P/T Constructions; and
b)	there is a causative link between the workplace right (the workers compensation claim) and the adverse action (the alleged dismissal from employment).
Furthermore, to simply accept Mr Tierney’s evidence at this stage would be to ignore or reverse accepted propositions in respect of summary dismissal applications requiring Mr Jackson’s evidence to be taken at its highest, or for evidence of an ambivalent character to be sufficient to amount to reasonable prospects, or to draw all reasonable inferences in favour of the non-moving party: see, for example, Dandaven at [6] per Gilmour J. It follows, therefore, that the Court is not prepared to summarily dismiss the substantive application on the basis that Mr Tierney’s evidence is irrefutable.
Whether injury occurred on dates Mr Jackson was employed
48.	P/T Constructions also argued that there was no reasonable prospect of success because, in any event, Mr Jackson was not injured during dates on which he worked for P/T Constructions. It was therefore argued that any injury sustained did not arise out of, or in the course of, employment for the purposes of ss.18 and 19 of the WCIM Act, and therefore there was no workplace right, because there was no right to make a workers compensation claim in respect of a period of non-employment.
49.	P/T Constructions acknowledges in its submissions that Mr Jackson in his Amended Claim posits two periods of employment, one from 21 May 2014 to 11 June 2014 and another from 21 May 2014 to 7 July 2014, and that on the basis of Mr Jackson’s Affidavit there is a third period of employment posited commencing 21 May 2014 and ending on 11 July 2014. Acknowledging that P/T Constructions does not admit that an employment relationship existed, Mr Tierney’s 2014 Affidavit evidences that Mr Jackson was on the EGRP site on 11 July 2014. The relevant injury is alleged to have occurred on 1 July 2014, and on Mr Jackson’s 2014 Affidavit, he subsequently received treatment in Perth some time in the first week of July 2014 with the approval of Mr Tierney. On the evidence in both Mr Jackson’s 2014 Affidavit and Mr Tierney’s 2014 Affidavit his EGRP site access was terminated on 11 July 2014, and on Mr Jackson’s case this brought his employment to an end by way of dismissal.
50.	The Court must draw all reasonable inferences in favour of the non-moving party: Dandaven at [6] per Gilmour J. P/T Constructions’ argument disregards the law in this respect because it is open to infer on the basis of the Amended Claim and the available evidence that there was an employment relationship which arguably existed between Mr Jackson and P/T Constructions from 21 May 2014 to either 7 July 2014 or 11 July 2014. It may be, also, that the employment relationship ended on 11 June 2014, in which case P/T Constructions’ submissions would have substance, as they would if the employment relationship did not exist. But the evidence sufficiently establishes that the date of alleged employment is in dispute, and it is arguable that the alleged employment ended on either 7 or 11 July 2014, and that the injury therefore occurred during a period of employment. The determination of that issue can only conclusively be resolved as a consequence of evidence at trial, and not by way of summary disposition at this relatively early stage of the proceedings.
The nature of the remedy sought
51.	P/T Constructions also argues for the summary dismissal of the proceedings on the basis of the nature of the remedy sought by Mr Jackson, and in particular that:
a)	the nature of the amount of compensation being sought (non–payment of wages; lost income and compensation for unfair dismissal) confirms that the nature of the claim is in no way connected to any adverse action as required under Division 3 of Part 3-1 of the FW Act;
b)	the heads of claim for compensation for the general protections claim do not come within the orders able to be made by the Court under s.545 of the FW Act for a general protection claim alleging breach of a workplace right, and particularly, where compensation is being sought, that it must be for “loss that a person has suffered because of the contravention”: FW Act, s.545(2)(b);
c)	that part of the compensation claim which seeks payment for wages during the period of employment is a small claim within the Small Claims Division of the FW Act jurisdiction of the Court, and is unrelated to any loss suffered as a result of a termination following upon the making of a worker’s compensation claim; and
d)	that part of the claim which seeks compensation for unfair dismissal and for “lying to Pindan and QBE Workers Compensation Insurance [“QBE”] and Work Cover” is not a proper claim for compensation flowing from a general protections claim.
52.	Section 545(1) and (2) of the FW Act provides as follows:
	(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. 
	(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following: 
	(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; 
	(b) an order awarding compensation for loss that a person has suffered because of the contravention; 
	(c) an order for reinstatement of a person. 
53.	Section 545(1) affords the broadest possible discretion to the Court to grant an appropriate remedy in respect of any contravention of a civil remedy provision under the FW Act: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392 at [421] per Barker J (“International Aviation Service Assistance”); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 3) [2012] FCA 697 at [186] per Katzmann J, followed in Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512 at [15] per Gray J (“Australian International Academy”).
54.	In International Aviation Service Assistance the Federal Court observed as follows in relation to s.545(1) and (2) of the FW Act:
	441		The question arises, however, whether the Court may order compensation, that is to say the payment of a pecuniary sum on account of hurt and humiliation found to be a direct consequence of contravention of s 340 and s 346 of the FW Act.  There is no direct authority under the FW Act concerning this question.  However, approaching the question as a matter of first principle, it is plain that s 545(1) is intended to provide the Court with a very broad power to make appropriate orders where contravention is established.  In this s 545(2) provides confirmation that certain types of orders – for example, an order awarding compensation for the loss a person has suffered because of a contravention – may be made.  But s 545(2), in this regard, expressly states that it has effect “without limiting subs (1)”. 
	442		As a matter of principle it is difficult to see why a compensatory financial order cannot be made in respect of hurt and humiliation (or “shock, distress and humiliation” as s 329(4) of the FW Act describes this head of loss) shown to be a direct consequence of a contravention.  At common law, courts have been reluctant to provide damages for a breach of a contract which results in hurt and humiliation, unless the parties to the contract can be taken to have contemplated such damages for breach: Baltic Shipping Co v Dillon (1992) 176 CLR 344 (Baltic Shipping), for example at 365, Mason CJ. There are special reasons usually cited by courts as to why this common law position in respect of breach of contract should obtain.  For example, in Baltic Shipping, at 369, Brennan J suggested that if a promisor in a usual commercial setting were exposed to such an indefinite liability in the event of breach of conduct, the making of commercial contracts would be inhibited.
	443		However, the power of the Court under s 545(1) and (2) to make appropriate orders following contravention including an order for compensation is quite divorced from this type of contractual consideration.  As a matter of broad public policy, the Parliament of Australia has provided that the Court may give appropriate relief where contravention is proved.  Relief in these circumstances helps to uphold the policy indicated in the FW Act that, amongst other things, contraventions of the freedom of association provisions should not occur and that appropriate orders should be made to remedy the contravention of such provisions.  There is, therefore, in my view, no obvious policy consideration that militates against the making of a compensation order under s 545(1) or a compensation order under s 545(2), for the sorts of reasons that have inhibited the award of damages at common law for a breach of contract which is attended by shock, distress or humiliation. 
	444		Indeed, there are other indications in the FW Act itself that suggest that s 545(1) and (2) should properly be construed to this effect.  For example, s 392(4) of the FW Act expressly provides that compensation should not include compensation for shock, distress or humiliation in respect of a proceeding for unlawful dismissal.  That provision does not apply in this case, but is in clear contrast to s 545 which contains no such limitation.
International Aviation Service Assistance at [441]-[444] per Barker J, followed in Transport Workers Union of Australia, NSW Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982 at [23]-[24] per Flick J (“No Fuss Liquid Waste”).
55.	In relation to s.545(2)(b) of the FW Act the Federal Court observed in International Aviation Service Assistance that:
	423		In accordance with usual principle, an order awarding compensation must be assessed on the basis that an applicant establishes loss that a person has suffered because of the contravention and that this requires an appropriate causal connection between the contravention and the loss claimed.
International Aviation Service Assistance at [423] per Barker J.
56.	In Flavel v Railpro Services Pty Ltd (No.2) [2013] FCCA 1449 (“Flavel”) this Court adopted what was said by the Federal Court:
a)	in International Aviation Service Assistance concerning the causal connection required between the contravention and the loss claimed: Flavel at [6] per Judge Simpson; and
b)	in both International Aviation Service Assistance and No Fuss Liquid Waste as to the power to award damages for non-economic loss for distress, hurt and humiliation under s.545(2)(b) of the FW Act: Flavel at [7] per Judge Simpson.
57.	International Aviation Service Assistance was followed by the Federal Court in Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 at [73] per Gilmour J where it was observed that:
	73		Both under the FW Act and the WR Act, the making of a compensation order is confined by the express purposes of such orders: “compensation for loss … suffered because of the contravention” (FW Act, s 545(2)(b)) and “compensation for damage suffered … as a result of the contravention” (WR Act, s 807(1)(b)). In both cases, the statutory precondition to a compensation order is that there has been loss or damage suffered because, or as a result of, the contravention. There must be “an appropriate causal connection between the contravention and the loss claimed”: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [423].
58.	The Court notes that various sums have been awarded by the federal courts for non-economic loss under s.545(2)(b) of the FW Act: see, for example, Hall v City Country Hotel Management Pty Ltd & Ors (No. 2) [2014] FCCA 2317 at [26] and [27(d)] per Judge Manousaridis – $2500; Dafallah v Fair Work Commission & Anor [2014] FCA 328; (2014) 225 FCR 559; (2014) 242 IR 273 at [179] per Mortimer J – $3000; International Aviation Service Assistance at [450] per Barker J – $7500; and Flavel at [16] per Judge Simpson – $25 000.
59.	Turning then to the heads of compensation claimed by Mr Jackson, the first is for non-payment of wages for nine weeks at the rate of $3000 per week. The non-payment of wages during the duration of a contract is not a claim in relation to an alleged dismissal in contravention of a general protection under ss.340, 341 and 342 of the FW Act. Any compensation arising from the failure to pay the contractual benefit of wages is not compensation for a loss that Mr Jackson might have suffered because of the contravention of s.340(1) of the FW Act. The alleged non-payment of wages does not arise out of the dismissal (the adverse action) on the basis of the existence, exercise, or proposed exercise, of a workplace right, in this case a workers compensation claim. Rule 13.10 of the FCC Rules provides that a proceeding may be dismissed in relation to any claim for relief in the proceeding, which allows for this particular claimed head of compensation to be struck out on the basis of the claim as it is presently pleaded. The Court therefore finds that as presently pleaded Mr Jackson’s claims in the Amended Claim for non-payment of wages for nine weeks at the contract rate of $3000 per week is to be summarily dismissed under r.13.10(a) of the FCC Rules as having no reasonable prospect of success.
60.	The Court notes, however, that it may be arguable that a failure to pay an employee in full by a specified method may itself be a contravention of a different civil remedy provision, namely s.323(1) of the FW Act. Section 323(1) and (2) of the FW Act provides as follows:
	             (1)  An employer must pay an employee amounts payable to the employee in relation to the performance of work:
	                     (a)  in full (except as provided by section 324); and
	                     (b)  in money by one, or a combination, of the methods referred to in subsection (2); and
	                     (c)  at least monthly.
	             (2)  The methods are as follows:
	                     (a)  cash;
	                     (b)  cheque, money order, postal order or similar order, payable to the employee;
	                     (c)  the use of an electronic funds transfer system to credit an account held by the employee;
	                     (d)  a method authorised under a modern award or an enterprise agreement.
61.	In Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 (“Wollongong Coal”) the Federal Court in dismissing an application for summary judgment found that:
	30		The ordinary language of s 323 is apt to identify, and provide for the enforcement of, an obligation to pay amounts which have become payable, as well as the more specific obligation to pay such amounts in full, in money and at least monthly (subject to the statutory exemptions which accompany the obligation).  It does so by permitting the imposition of a civil penalty for contravention of the obligation.
Wollongong Coal at [30] per Buchanan J.
62.	The Federal Court in Wollongong Coal went on to observe that:
	31		The applicant does not rely on s 323 as a foundation for recovery of any underpayment.  It relies on s 323 to establish breach of a civil remedy provision.  Recovery of unpaid amounts is sought on a different statutory footing under s 545 of the FW Act, namely compensation for loss suffered as a result of contravention of a civil remedy provision.  
	32		The applicant’s construction of s 323 has direct support in the judgment of Jessup J in Murrihy.
	33		Although the construction of s 323 argued by the applicant appears not to have been contested in Murrihy, it appears clear that Jessup J also subscribed to it.  Thus, his Honour said (at [119]):  
	119	It was not suggested by the respondents that their failure to pay the applicant’s commission entitlements did not involve a contravention of s 323(1).  It clearly was such a contravention.  …  
	and (at [142]):
	142	… A significant innovation introduced by the FW Act was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the FW Act.  Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them.  In this respect, s 323(1) is a civil remedy provision.  There is – and there would have been at the time of the introduction of this provision – no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations.  Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.  
	(Emphasis added) 
	and (at [163]):  
	BONUSES
	163	Under the terms of her contract of employment with Betezy, the applicant was to be paid a bonus of 5% of the first deposit made by a client introduced by agents working under her control.  The bonuses were to be paid on a monthly basis.  In her Further Amended Statement of Claim, the applicant alleged that bonuses fell due between 1 January 2011 and 18 January 2012, but were not paid.  The applicant’s evidence (based on the respondents’ discovery) demonstrated that, in each of the months between (and including) January and November 2011, excluding June, at least one such first deposit was made.  At the end of each such month, the 5% bonus should have been paid.  It is common ground that no bonus was paid at the time (or at any time thereabouts).  There was, in the circumstances, a contravention by Betezy of s 323 of the FW Act in respect of each such month.  …  
	34		These matters are significant for the present interlocutory application in two ways.  
	35		First, in my view it may not be said that the applicant has no reasonable prospects of success such that the proceedings should be dismissed under s 31A of the FC Act.  
	36		Secondly, it seems to me that I should approach the question of construction of s 323 in conformity with the views expressed by Jessup J.  I should do so as a matter of comity in any event, but I also regard the language of s 323 as sufficiently wide to accommodate the present proceedings.  I do not accept the more confined construction advanced by the respondents.
Wollongong Coal at [31]-[36] per Buchanan J.
63.	Less than a fortnight after the judgment in Wollongong Coal was delivered a Full Court of the Federal Court of Australia in Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; (2014) 314 ALR 166 at [47] per Allsop CJ, Siopis and Flick JJ said of s.323(1) of the FW Act that:
	The simple and common sense reading of the provision is that the employer must pay any amount or amounts payable to the employee.
64.	This Court may also have jurisdiction to hear a claim for breach of an employment contract in respect of a matter falling within the Court’s accrued jurisdiction: Kennedy v Australasian Coal and Shale Employees Federation & Anor (1983) 78 FLR 252; (1983) 9 IR 347 at 259-263 per Beaumont J; Kennedy v Australasian Coal and Shale Employees Federation & Anor (No. 2) (1983) 74 FLR 241; (1983) 9 IR 355; Baily v Krantz (1984) 55 ALR 345 at 355 per Gray J; Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 at [93] per Black CJ and [379] per Jessup J.
65.	A number of propositions can be broadly stated and accepted in relation to the issues in this matter:
a)	that when a federal court such as this Court: FCCA Act, s.8(1), has jurisdiction to determine a federal matter, such as FW Act claims, jurisdiction is conferred on that federal court to determine the whole controversy, and not just that part which attracted federal jurisdiction: Moorgate Tobacco Company Limited v Philip Morris Limited & Anor (1980) 145 CLR 457 at 472 per Gibbs J (“Moorgate Tobacco”); Beck & Anor v Spalla & Anor [2005] FCAFC 82; (2005) 142 FCR 555 at [25] per Hill, Finn and Kenny JJ (“Beck & Spalla”); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [85] per French J (“Johnson Tiles”); FCCA Act, ss.14 and 18;
b)	once a federal court has jurisdiction that jurisdiction is not lost even if the claim which attracted jurisdiction is dismissed, lost, struck out, found unnecessary to be decided, cannot be substantiated, or displaced by some countervailing claim or assertion: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 415-416 per Gummow J; Johnson Tiles at [86]-[87] per French J (and other cases there cited);
c)	non-federal claims are treated as part of the matter for the purposes of federal jurisdiction where they cannot be severed from the federal claims, a condition satisfied if both sets of claims:
i)	arise from a common sub-stratum of facts; or
ii)	are so related that determination of one is essential to determination of the other: Re Wakim; Ex parte McNally & Anor [1999] HCA 27; (1999) 198 CLR 511 at [140]-[145] per Gummow and Hayne JJ (“Wakim”); Johnson Tiles at [83] per French J;
d)	it may be a matter of impression and practical judgment as to whether the claims are one justiciable controversy and thus a single matter: Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ (“Fencott”); PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; (1998) 153 ALR 520 at [10] per Gaudron J; Wakim at [140] and [149] per Gummow and Hayne JJ, and in this regard the Court can look at the conduct of the parties and the pleadings, which define the issues and in which the claims for relief are set out: Johnson Tiles FCR at [83] per French J;
e)	assessing whether a claim falls within the scope of a federal court’s accrued jurisdiction requires consideration of the overall relationship of the federal claim to the controversy in respect of which jurisdiction is sought to be invoked: Johnson Tiles at [84] per French J, and if it is a trivial or insubstantial aspect of the controversy it would be inappropriate and inconvenient for such a case to be determined by a federal court: Fencott at 609 per Mason, Murphy, Brennan and Deane JJ; Johnson Tiles at [84] per French J; and
f)	even if a federal claim is determined adversely, whether as a question of law or fact, to an applicant, that determination does not necessarily deprive a federal court of jurisdiction to deal with the non-federal claims: Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 per Northrop, Jackson and Gummow JJ; Johnson Tiles at [84] per French J.
66.	The Court has noted the matters with respect to s.323(1) and (2) of the FW Act and the Court’s accrued jurisdiction because they may be relevant to any argument as to whether Mr Jackson might be granted leave to re-plead the Amended Claim so as to provide a basis for a claim for relief in the terms of, or similar to, the present claim for non-payment of wages which has been struck out, or an alternative basis, such as a partnership.
67.	The second head of claim for compensation is for $27000 for loss of income for ten weeks following the dismissal until Mr Jackson could move back to Perth. Whilst inelegantly expressed the claim is plainly a claim for financial loss arising directly from the alleged contravention of a general protection, namely the dismissal because of a workplace right.
68.	P/T Constructions ran an argument that the loss of income claim was not a general protection claim because it was a small claim under s.548 of the FW Act, seemingly because the original application ticking the small claims box remained unamended, and the claim was for a sum of $19,999 as originally claimed by Mr Jackson. That argument, however, ignores the effect of the Court’s order of 1 December 2014 in which the Court ordered that:
	1.	The applicant have leave to:
	a)	file and serve an amended Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, amending Parts G and H and annexing details of compensation claimed; and
	b) 	in the alternative to (a), substitute a Form 5 Small claim under the Fair Work Act 2009 for the existing Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection;
	by 15 December 2014.
69.	It is apparent from the Amended Claim that Mr Jackson filed and served an amended Form 2 claim alleging dismissal in contravention of a general protection, and not the alternative, namely a Form 5 small claim form. The matter was raised at the directions hearing because although the small claims box on the application was ticked, Mr Jackson had filed with the original application a Form 2 claim under the FW Act alleging dismissal in contravention of a general protection. The Court made order 1 above in order that the matter be put on a proper footing as either a general protections claim or a small claim. It is plain on the basis of the Amended Claim filed on a Form 2 alleging dismissal in contravention of a general protection, and which seeks a total of compensation in the sum of $82000, including $30000 for loss of income under the second head of the claim for compensation, that Mr Jackson is not pursuing the proceedings as a small claim.
70.	In all of the above circumstances, P/T Constructions’ argument that this is a small claims proceeding, and that Mr Jackson is therefore limited to a remedy in a sum not more than $20000: s.548(2)(a) of the FW Act, has no basis and is without merit. Even if it had merit, the head of compensation would not be summarily dismissed as the effect of s.548(2)(a) of the FW Act is to limit the Court’s jurisdiction to award an amount of not more than $20000, not to prevent if from being claimed, in small claims proceedings. Furthermore, the sum claimed would be an amount arising because of an entitlement of an employee arising under s.542(1) of the FW Act, that section allowing for the enforcement of a broad range of contractual terms without the need to separately invest the Court with federal jurisdiction: Fair Work Bill 2008 (Cth), Explanatory Memorandum, para.2142.
71.	For the above reasons, the second head of claim of compensation will not be summarily dismissed.
72.	As to the third head of claim for compensation, it seeks compensation for unfair dismissal and for alleged “lying” to Pindan, QBE and Work Cover.
73.	Compensation in this Court on a claim of the type brought by Mr Jackson in these proceedings is, as is outlined above, awarded for loss arising from the contravention of a civil remedy provision of the FW Act: FW Act, s.545(1) and (2)(b); International Aviation Service Assistance at [423], [441]-[444] and [448]-[450] per Barker J.
74.	Compensation is not awarded by this Court for unfair dismissal. The jurisdiction to make an order for compensation for unfair dismissal is vested in the Fair Work Commission, and not in this Court (or the Federal Court): FW Act, ss.390 and 392. The claim for compensation for unfair dismissal will therefore be summarily dismissed under r.13.10(a) of the FCC Rules.
75.	As to the claim for compensation for lying to Pindan, QBE and Work Cover, that is a claim which might be categorised as having some element of a claim for non-economic loss on the basis of distress, shock, hurt or humiliation arising from the alleged contravention of a general protection as alleged by Mr Jackson: see International Aviation Service Assistance at [443]-[444] and [448]-[450] per Barker J; No Fuss Liquid Waste at [24] per Flick J; Flavel at [7] and [16] per Judge Simpson. The difficulty with the claim in this instance is that whilst conceptually possible, the evidence in Mr Jackson’s 2014 Affidavit does not support the claim made. It is not possible to identify with any clarity or precision who is alleged to have lied to Pindan, QBE and Work Cover, when and how they have done so, and what precisely it is that they have allegedly lied about. The evidence in this regard is presently so flimsy as to warrant this aspect of the third head of the claim for compensation by Mr Jackson being struck out under r.13.10(a) of the FCC Rules as having no reasonable prospect of success.
76.	It follows from the above, that the third head of compensation claimed by Mr Jackson will be summarily dismissed under r.13.10(a) of the FCC Rules as having no reasonable prospect of success.
Conclusion – no reasonable prospect of success
77.	P/T Constructions’ claim for summary dismissal of these proceedings under r.13.10(a) of the FCC Rules on the basis that they have no reasonable prospect of success has failed in all but the following respects:
a)	the first head of claim for compensation for non-payment of wages in the sum of $27000; and
b)	the third head of claim for compensation in the sum of $25000 for unfair dismissal and lying to various companies.
78.	As indicated above, the first and third heads of claim for compensation will be summarily dismissed under r.13.10(a) of the FCC Rules as having no reasonable prospect of success, but otherwise P/T Constructions’ claim in this regard fails.
Frivolous
79.	Under r.13.10(b) of the FCC Rules a proceeding or any claim for relief in a proceeding may be summarily dismissed if it is frivolous.
80.	P/T Constructions submits that these proceedings are frivolous. It says that, at its highest, the cause of action in the present case is that P/T Constructions, in terminating Mr Jackson’s employment, took adverse action against him because he had lodged a worker’s compensation claim resulting from a workplace injury on 1 July 2014. P/T Constructions submits that this is not arguable and is without substance because Mr Jackson asserts that his last working day for P/T Constructions was 11 June 2014.
81.	A proceeding is frivolous when, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable or when the proceeding is without substance, groundless or fanciful: Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J.
82.	For reasons otherwise set out above, these proceedings cannot be regarded as frivolous, as there is an arguable case:
a)	that Mr Jackson was:
i)	an employee of P/T Constructions; and 
ii)	dismissed from employment with P/T Constructions in contravention of a general protection; and
b)	that Mr Jackson is entitled to compensation for financial loss as a result of the alleged contravention.
83.	P/T Constructions’ claim under r.13.10(b) of the FCC Rules that the proceedings or the claims made (save for those already dismissed above under r.13.10(a) of the FCC Rules) are frivolous is therefore not made out, and must fail.
Vexatious
84.	P/T Constructions submits that these proceedings are vexatious, because:
a)	Mr Jackson has “commenced myriad claims” against P/T Constructions arising out of its work on the EGRP site, and in particular: 
i)	a statutory demand alleging that between $53,669.00 and $56,019.49 expended by Mr Jackson on behalf of P/T Constructions had not been repaid: Mr Tierney’s 2015 Affidavit, Annexure LT-1: Creditor’s Statutory Demand for Payment of a Debt; and
ii)	a General Procedure Claim demanding payment of unpaid monies exceeding $65,000 alleged to have been expended by Fantastic Building Works Pty Ltd on behalf of P/T Constructions: Mr Tierney’s 2015 Affidavit at [20]-[25]; and
b)	given the “myriad claims” between the parties, some in Mr Jackson’s name and some in the name of Fantastic, but all related to dealings with P/T Constructions in relation to the EGRP site over a period including that between 21 May 2014 and on or about 7 July 2014, the bona fides of each claim, sometimes made on the basis that Mr Jackson was at all material times an employee of P/T Constructions, and at other times that he was an independent contractor to P/T Constructions, are in issue.
85.	In response, Mr Jackson says that:
a)	the statutory demand was properly withdrawn when P/T Constructions claimed a set-off for the amount alleged as owing in relation to the oral agreement for the hire of equipment; and
b)	the General Procedure Claim was initiated in order for the matter to be properly determined.
86.	The facts, based on Mr Tierney’s 2015 Affidavit, indicate that actions involving Mr Jackson, Fantastic and P/T Constructions have been as follows:
a)	the Statutory Demand served by Mr Jackson on P/T Constructions on 22 August 2014 claiming amounts from $53,669 to $56,019.49 alleged to have been expended by Mr Jackson for and on behalf of P/T Constructions, which was withdrawn on 4 September 2014;
b)	a claim alleging contravention of a general protection filed in the Fair Work Commission (“FWC”) served on P/T Constructions on 25 August 2014, which was the subject of a conference in the FWC on 27 August 2014 at which Mr Jackson was personally represented, and which did not settle, and which consequently resulted in the issuance by the FWC of a certificate under s.368 of the FW Act, that certificate being a jurisdictional prerequisite to the bringing of these proceedings: Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208 at [50] per Lucev FM; Newman v East Yarra Friendly Society Pty Limited Trading As My Chemist Pharmacy [2011] FCA 1262 per North J;
c)	the substantive application in these proceedings was filed on 8 September 2014, and purported to name both P/T Constructions and Mr Tierney as respondents, although Mr Tierney was not named on the s.368 Certificate under the FW Act, and was subsequently ordered to be removed as a respondent to the proceedings by order of this Court on 4 March 2015;
d)	on or about 3 October 2014 P/T Constructions was served with a general procedure claim filed by Fantastic in the Kalgoorlie Magistrates Court (Civil Division) (“Magistrates Court Civil Claim”), which contends that there was an agreement between Fantastic and P/T Constructions for Fantastic to advance approximately $50,000 to meet wages and other costs to carry out works on the EGRP site, and that in excess of $65,000 was expended by Fantastic and that P/T Constructions had failed to repay that sum. P/T Constructions filed a defence and counterclaim on 15 October 2014, in which it alleged that the amounts advanced by Fantastic are to be offset against amounts owing by Fantastic to P/T Constructions for unpaid equipment hire charges, and that P/T Constructions incurred further losses as a result of Fantastic’s breach of agreements with it. That matter is presently scheduled for trial on 8 to 12 June 2015; and
e)	on 25 August 2014 P/T Constructions was served with a general protections claim brought by Ms Filitonga, which was the subject of an unsuccessful conference before the FWC on 30 September 2014, resulting in the issuance of a s.368 Certificate under the FW Act. Subsequently, Ms Filitonga filed a small claims application in this Court on 25 August 2014, which is currently pending mediation.
87.	It is common ground that the Statutory Demand was withdrawn after P/T Constructions set up a counterclaim or counter-demand.
88.	The claim by Ms Filitonga does not directly involve Mr Jackson or Fantastic.
89.	In the above circumstances, P/T Constructions’ claim that there are “myriad” claims is an exaggeration, for “myriad” means “(of) indefinitely great number”: The Concise Oxford Dictionary of Current English (Oxford: Oxford University Press, 1984) page 669. There are but two claims involving Mr Jackson and Fantastic: this claim which involves Mr Jackson personally, and the Magistrates Court Civil Claim by Fantastic, of which Mr Jackson is a director. The Court notes that these proceedings and the Magistrates Court Civil Claim are based upon different causes of action, and involve different parties as applicants or plaintiffs. As presently framed, the substantive proceedings in this matter involve a statutory civil claim for a statutory remedy arising from a relationship based on the alleged contract of employment between Mr Jackson and P/T Constructions. Although the pleadings in the Magistrates Court Civil Claim are not in evidence, it is evident from Mr Tierney’s 2015 Affidavit, that the cause of action is between Fantastic and P/T Constructions and is based on an alleged breach of a common law commercial contract: Mr Tierney’s 2015 Affidavit at [20]-[24].
90.	In relation to whether proceedings are vexatious it suffices for present purposes to adopt the observations of the Federal Court in Rana v Commonwealth of Australia [2013] FCA 189 at [42]-[43] per Mansfield J, as follows:
	42 Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.
	43 It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant's intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.
91.	These proceedings cannot be described as vexatious. It is not apparent that they have been instituted with the intention of annoying or embarrassing P/T Constructions. It is also not apparent that they have been brought for a collateral purpose, or that they are not brought for the purpose of having this Court adjudicate on the issues to which the proceedings give rise. Nor, for reasons set out above are the proceedings generally untenable, hopeless, scandalous, oppressive or embarrassing. Those matters which have been struck out have been struck out on pleading grounds, and it is apparent from what the Court has said above, particularly with respect to the first claimed head of compensation, but not so much the third claimed head of compensation, that there may be a tenable cause of action in the event that leave were to be granted to re-plead the matter. These proceedings are not, for reasons explained above, part of a set of “myriad claims” brought by Mr Jackson. Mr Jackson is, in fact, an applicant in only one set of proceedings, being these proceedings, against P/T Constructions. Moreover, the other set of proceedings in which it might be said that he is involved, insofar as he is a director of the plaintiff (Fantastic) in the Magistrates Court Civil Claim, involves a wholly separate cause of action to these proceedings. It may be that some of the facts in relation to the formation of the contract of employment pleaded in these proceedings and the commercial contract pleaded in the Magistrates Court Civil Claim proceedings, and the events on the EGRP site, might overlap, but it remains the case that there are, on the face of it, two properly pleaded separate causes of action, each brought in an appropriate forum.
92.	In all of the above circumstances, the Court has concluded that these proceedings are not vexatious for the purposes of r.13.10(b) of the FCC Rules, either generally or as part of the alleged, but inaccurately characterised, “myriad claims”.
Abuse of Process
93.	P/T Constructions also submitted that the proceedings were an abuse of process, and in so doing repeated the earlier assertion that there were myriad claims between the parties. P/T Constructions referred to the following excerpts from authority:
	(a) 	… there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
See Rogers v R (1994) 181 CLR 251 per Mason CJ.
	(b)	(A)buse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging“ or “productive of serious and unjustiﬁed trouble and harassment.
See Jeffery & Katauskas Pty Limited v SST Consulting [2009] HCA 43; (2009) 239 CLR 75; (2009) 260 ALR 34; (2009) 83 ALJR 1190 at [28] per French CJ, Gummow, Hayne and Crennan JJ.
94.	The Court observes that the Federal Court has dealt with the issue of abuse of process in Spalla v St George Motor Finance Ltd (No. 6) [2004] FCA 1699 at [69] per French J (“Spalla”) where it was said that:
	69 The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts - Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 545 Carr J).
95.	A non-exhaustive list of matters relevant to the determination of an abuse of process was also set out in Spalla (taken from the judgment in State Bank of New South Wales Ltd v Stenhouse (1997) Aust Torts Reports 81-423 (“Stenhouse”)) as follows:
	(a)	the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
	(b)	the opportunity available and taken to fully litigate the issue;
	(c)	the terms and finality of the finding as to the issue;
	(d)	the identity between the relevant issues in the two proceedings; 
	(e)	any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of – 
	(f)		the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and 
	(g)	an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
Spalla at [70] per French J quoting Stenhouse at 64,089 per Giles CJ.
96.	Where there are other related, or possibly related, proceedings on foot the Court may also have regard to factors including:
a)	comity;
b)	jurisdiction;
c)	whether joinder of parties and hearing of causes of action together in the earlier proceedings, is possible;
d)	expense and convenience to the parties and witnesses; and
e)	the degree of progress in the earlier proceedings.
See Tradesman Technologies Pty Ltd v Ameduri [2010] FMCA 1011 at [32]-[86] per Lucev FM (“Tradesman Technologies”), and cases there cited. Relevant factors do not, and need not, carry equal weight, and in certain circumstances, one or other of the factors may be wholly conclusive: Tradesman Technologies at [85] per Lucev FM.
97.	Insofar as vexatiousness is an element of abuse of process, for reasons set out above, the substantive proceedings are not vexatious.
98.	The Court has already noted that although there are two separate causes of action, appropriately brought in two separate courts, there is likely to be some factual overlap between the proceedings in the Magistrates Court Civil Claim and these proceedings. Necessarily that will mean an evidentiary overlap, both in terms of the evidence per se and the witnesses required to give that evidence. Ordinarily, it might be oppressive, or unfair, or might bring the administration of justice into disrepute, if two separate courts were to hear:
a)	essentially the same matter; or
b)	at or about the time, matters in which there is a significant overlap of evidence.
99.	The first issue does not arise in this case because, for reasons set out above, the Magistrates Court Civil Claim and these proceedings involve quite distinct causes of action and different parties. Nor will the second issue be likely to arise. This is because the Magistrates Court Civil Claim is presently due to be heard on 8 to 12 June 2015, and if disposed of with the usual efficiency of a State Magistrates Court, the Magistrates Court Civil Claim will, in all likelihood, be determined before these proceedings are either returned to Court for a directions hearing on 6 July 2015, or are ready to be listed for final hearing, which will not presently be before March 2016 at the earliest. Thus, following judgment in the Magistrates Court Civil Claim the parties will be in a position to deal with any issues arising out of the judgment in the Magistrates Court Civil Claim which might affect the substantive hearing of these proceedings. It is fair to observe that such issues have not yet crystallised for the purposes of these proceedings. Therefore, to the extent that any factual issues determined in the Magistrates Court Civil Claim are the same as, or might overlap with, factual issues in these proceedings they are issues which can be procedurally dealt with in the substantive proceedings following any judgment delivered in the Magistrates Court Civil Claim proceedings.
100.	In the Court’s view, in the present circumstances, there is no unfairness or oppressiveness constituting an abuse of process in relation to these proceedings by reason of the Magistrates Court Civil Claim. The resolution of the Magistrates Court Civil Claim, which is well advanced and soon to go to trial, may assist in narrowing both the evidentiary scope of, and the issues to be determined in, these proceedings. The determination of the Magistrates Court Civil Claim will also give the parties the opportunity to examine any findings made and determine whether or not those findings impact upon these proceedings. For the above reasons, the Court perceives no injustice to P/T Constructions, and no abuse of process, in the substantive proceedings in this Court. That position may of course change dependent upon the determination of issues in the Magistrates Court Civil Claim.
101.	In all of the above circumstances, the Court is not satisfied that there is an abuse of process in this matter. It follows that there is no abuse of process for the purposes of r.13.10(c) of the FCC Rules, and in that respect the application for summary dismissal fails.
Other matters
102.	The Court has considered the evidence concerning the threatening behaviours contained in Mr Tierney’s 2015 Affidavit: Mr Tierney’s 2015 Affidavit at [26]-[35]. That evidence is presently not sufficiently relevant or compelling to form the basis for any finding in relation to the application for summary dismissal of these proceedings.
103.	The Court also notes that a consequence of the findings made by the Court in these Reasons for Judgment might be to cause the parties to consider whether further mediation might be of utility in resolving these proceedings. There will be an order that the parties confer with respect to mediation. The Reasons for Judgment also give rise to the question of whether or not Mr Jackson might file and serve a further amended claim, and again the Court will order that the parties confer with respect to that issue.
104.	As to costs, proceedings under the FW Act are normally not subject to costs orders, by reason of the provision of s.570 of the FW Act. The Court notes that in these proceedings there were two applications in a case, one of which was not pursued, and the other which has been dealt with in these Reasons for Judgment. In the circumstances, costs of the two applications in a case will be reserved, and the parties, bearing in mind the statutory hurdle that confronts them, are to confer with respect to the question of costs.
105.	The proceedings are otherwise to be adjourned to a directions hearing at 9.30am on 6 July 2015. That will allow sufficient time for conferral on the issues referred to immediately above, and may be sufficient time for the Magistrates Court Civil Claim to have been determined.
Conclusions and orders
106.	The Court has concluded that:
a)	under r.13.10(a) of the FCC Rules:
i)	the first head of compensation claimed by Mr Jackson, at Part H of the Amended Claim for non-payment of nine weeks wages at the rate of $3000 per week; and
ii)	the third head of compensation claimed by Mr Jackson at Part H of the Amended Claim for compensation for unfair dismissal and lying by P/T Constructions,
are to be summarily dismissed, but otherwise P/T Constructions’ application for summary dismissal will be dismissed;
b)	P/T Constructions’ application for security for costs and a stay of the substantive application until security for costs be dismissed;
c)	P/T Constructions and Mr Jackson must confer prior to the next directions hearing concerning:
i)	whether, and, if so, on what terms Mr Jackson might file and serve a Further Amended Claim;
ii)	the utility of further mediation; and
iii)	the costs of P/T Constructions’ two applications in a case, which are otherwise reserved; and
d)	the proceedings will otherwise be adjourned to a directions hearing at 9.30am on 6 July 2015.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:  

Date:  1 May 2015