MIDYA v SAGRANI [1999] NSWCA 187

New South Wales Court of Appeal CITATION : MIDYA v SAGRANI [1999] NSWCA 187 FILE NUMBER(S) : CA 40768/98 HEARING DATE(S) : 28 May 1999 JUDGMENT DATE : 28 May 1999

SATYENDRA NATH MIDYA PARTIES : v RITA SAGRANI JUDGMENT OF : Mason P at 15; Handley JA at 1; Giles JA at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6460/97 LOWER COURT JUDICIAL OFFICER : Williams ADCJ

COUNSEL : P Menzies QC/M Robinson (Appellant) J Glisson QC/N Gye (Respondent) SOLICITORS : Legal Aid Commission of New South Wales (Appellant) Corby Levingston (Respondent) CATCHWORDS : APPEAL - whether new point of law could be raised on appeal; EMPLOYMENT - reasonable remuneration for services rendered - Industrial Relations Act 1996 - ss 117-8 - whether deduction for board and lodging permissible; INDUSTRIAL LAW - Industrial Relations Act - whether employer entitled to deduct value of board and lodging from remuneration ACTS CITED : Industrial Relations Act 1996 Coulton v Holcombe (1986) 162 CLR 1 CASES CITED: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Way v Latilla [1937] 3 All ER 759 DECISION : Orders made

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40768/98 DC 6460/97 MASON P HANDLEY JA GILES JA

Friday 28 May 1999 SATYENDRA NATH MIDYA v RITA SAGRANI APPEAL - whether new point of law could be raised on appeal EMPLOYMENT - reasonable remuneration for services rendered - Industrial Relations Act 1996 - ss 117-8 - whether deduction for board and lodging permissible INDUSTRIAL LAW - Industrial Relations Act - whether employer entitled to deduct value of board and lodging from remuneration The appellant, an Indian national, had been brought to Australia by the respondent in May 1994 and lived and worked in her home until May 1997. He had also worked in a warehouse for a company she controlled. There was a falling out and the appellant sought reasonable remuneration for his services. The trial Judge found for the appellant and entered judgment for $21,000 having allowed a deduction for board and lodging at $210 per week. The appellant claimed the trial Judge erred in allowing $210 per week and claimed that under ss 117 and 118 of the Industrial Relations Act 1966 the deduction should not have been made. The points based on the Act were not raised at the trial. HELD , dismissing the appeal: A party is bound by the conduct of his case at the trial and can only raise a new question of law on appeal in limited circumstances. The issues under ss 117 and 118 did not raise pure questions of law, and they could not be taken for the first time on appeal. Coulton v Holcombe (1986) 162 CLR 1 and Suttor v Gundowda Pty Ltd (1950) 81 CLR applied. ORDERS

(1) Leave to amend the grounds of appeal granted.

(2) Appellant to file and serve an amended notice of appeal within seven days.

(3) Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40768/98 DC 6460/97 MASON P HANDLEY JA GILES JA

Friday 28 May 1999 SATYENDRA NATH MIDYA v RITA SAGRANI JUDGMENT

1 HANDLEY JA: This is an appeal from a decision of Williams DCJ who heard what was in substance a claim for reasonable remuneration on a quantum meruit basis. The case arises out of what might be hoped are unusual facts. 2 The plaintiff, a national of India, was brought to this country by the first defendant in May 1994. The Judge was not satisfied that he lived in the home of the first defendant during the first month he was in this country. Thereafter until about 29 May 1997 he lived in the home of the first defendant at 609 Old South Head Road Rose Bay. Initially the plaintiff worked in a domestic capacity for the first defendant, "in return for board and lodging". However, as time went on, the nature of his domestic tasks changed. Various attempts were made to train him in cooking and he did additional work on a more formal basis than when he first arrived. Ultimately, as the judge found, there was a falling out and the plaintiff left and at a later stage these proceedings were commenced. 3 The statement of claim sought damages but in truth the claim was for reasonable remuneration for services rendered for the first defendant while he lived in her home in the amount of $129,835.96. 4 The judge found that a reasonable rate of payment for the work done by the plaintiff for the first defendant as a cook and cleaner was between $13 and $15 an hour and his Honour adopted a figure of $14. He found that the plaintiff worked, mainly at the home but also at the warehouse of a company controlled by the first defendant, Orientique Pty Limited, for about twenty five hours a week. 5 On this basis, the judge considered that the plaintiff was prima facie entitled to recover the sum of $350 a week for 156 weeks. The plaintiff however conceded, as a deduction against his claim, an offset of $150 per week for food and board. The judge thought that this was unrealistically low and increased it to $30 a day or $210 per week. On this basis, he found the verdict for the plaintiff and entered judgment for $21,000. 6 The plaintiff has appealed and his amended grounds of appeal are that the judge erred in finding that he should allow a credit for $210 per week for board and lodging, and a second ground that his Honour should have found that no deduction for board and lodging was permissible and none should have been made. This of course involved an attempt to reverse an express concession made below in that an agreed deduction for $150 a week for board and lodging was included in the claim shown on p 203 of the blue appeal book which was handed up at the end of the hearing by plaintiff's counsel as part of his address. 7 An appellant can take a new point of law on appeal which was not taken at the trial, but because of the risk of procedural unfairness inherent in such a course the courts have carefully circumscribed this right. The general rule vigorously applied by the High Court in Coulton v Holcombe (1986) 162 CLR 1 is that a party is bound by the conduct of his case at the trial and cannot depart from it on appeal. The limited exception sanctioned by cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 enables a new question of law to be taken on appeal only where the appellate court is satisfied that the opposite party could not have answered the point by evidence at the trial. 8 The fresh point of law sought to be taken in this case is based upon the Industrial Relations Act 1996 which commenced on 2 September that year. Section 117 provides:

"Remuneration payable to an employee must be paid in money …". 9 Section 118(1) provides:

"Payment of remuneration to an employee is to be made in full without any deduction for goods, board or lodging or any other services supplied by the employer in payment (or part payment) of remuneration". 10 No issue under these sections was presented to the trial judge. The parties did not have the opportunity to adduce evidence or make submissions directed to those issues and his Honour's findings did not address them either. 11 It is not clear that these sections render illegal or nugatory a contract which provides for an employee to receive a package which comprises both remuneration and other benefits. For example it is not clear that they invalidate a contract under which an employee receives cash remuneration and the benefit of a company car. His Honour considered that the task facing him was to determine what was reasonable remuneration for the work that had been done by the plaintiff for the first defendant. The general principles which apply in such a case are those referred to in Way v Latilla [1937] 3 All ER 759, a decision of the House of Lords. 12 In view of the way the case was presented to him, his Honour was content to approach it the way he did. There is no evidence that any award rate of pay applies in this State to domestic employees, whether they live in or not. Section 118(2)(a) authorises State Industrial Tribunals to make awards which permit amounts to be deducted by employers for goods, board or lodging. Presumably this is the statutory authority for the familiar provisions in shearers' awards that board and lodging will be provided while they are shearing at a station. 13 In the light of the way the case was conducted at the trial, I have not been persuaded that the appellant is entitled to take the points based on ss 117 and 118 as pure questions of law. Had they been presented to his Honour, attention would have been focused, more precisely than either the parties or his Honour found necessary, on the nature of the arrangement. If the plaintiff was entitled under the arrangement to receive a certain amount in cash and be provided with board and lodging, it is conceivable that the sections would have no application. On the other hand, if the true nature of the arrangement was that he was entitled to receive $350 in cash, the sections may well have applied, unless an industrial award authorised a deduction for board and lodging. 14 In my judgment therefore the plaintiff should not be permitted to take the new points of law in this Court. It follows in my judgment that the appeal fails and should be dismissed with costs. 15 MASON P: I agree. 16 GILES JA: I also agree. 17 MASON P: The formal orders of the Court are leave to amend the grounds of appeal; direct the appellant to file and serve an amended notice of appeal within seven days; appeal dismissed with costs.

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