DARNA PTY LTD & ANOR v FAIR WORK OMBUDSMAN - [2014] FCCA 1106

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARNA PTY LTD & ANOR v FAIR WORK OMBUDSMAN

[2014] FCCA 1106

Catchwords:
INDUSTRIAL LAW – Default judgment – Second Applicant director not a person who has standing to apply for a review or setting aside of the Compliance Notice – failure by First Applicant company to appoint legal representation – failure to do an act required by the Federal Circuit Court Rules 2001 (Cth) – failure to prosecute the proceedings with due diligence or at all – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.716, 716(1)(a), 716(2)(a), 716(2)(b), 716(3)(a), 716(3)(e), 717

Federal Circuit of Australia Act 1999 (Cth), s.17(A)(2)

Federal Circuit Court Rules 2001 (Cth), rr.9.04, 13.03(A), 13.03(B), 13.03(B)(1)(a), 13.03(C)(1)(c), 13.10(a)

Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595
Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 1105
KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361

First Applicant:

DARNA PTY LTD
(ACN 135 545 069)

Second Applicant:

YOAV OREN

Respondent:

FAIR WORK OMBUDSMAN

File Number:

MLG 55 of 2014

Judgment of:

Judge Hartnett

Hearing date:

27 May 2014

Delivered at:

Melbourne

Delivered on:

27 May 2014

REPRESENTATION

The First Applicant:

No appearance

The Second Applicant

In person

Counsel for the Respondent:

Mr J. Tracey

Solicitors for the Respondent:

The Office of the Fair Work Ombudsman

THE COURT ORDERS THAT:

The proceeding filed 7 January 2014 insofar as it is brought by, and relates to, the First Applicant be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The proceeding filed 7 January 2014 insofar as it is brought by, and relates to, the Second Applicant be dismissed pursuant to s.17A(2) of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the Second Applicant has no reasonable prospect of successfully prosecuting the claim.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 55 of 2014

DARNA PTY LTD
(ACN 135 545 069)

First Applicant

YOAV OREN

Second Applicant

And

FAIR WORK OMBUDSMAN

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

These proceedings commenced with an Application filed on 7 January 2014 by Darna Pty Ltd as the First Applicant and Mr Oren as the Second Applicant, with the Fair Work Ombudsman as the named Respondent.
The Application was supported by a Statement of Claim filed 7 January 2014. The orders sought by the applicants are set out in paragraph 12 of the Statement of Claim and are as follows:-
“(a) A declaration that the first and the second applicant did not contravened subsection 716(5) of the FW Act [the Fair Work Act 2009 (Cth)] by failing to comply with the compliance notice
(b). A declaration that the first and the second applicants have” a reasonable excuse” within the meaning of the FW Act for not complying with compliance notice.
(c) An order that the compliance notice should be amended and/or withdrawn
(d) An order pursuant to section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1106
Decision Date: 27 May 2014

CaseChat Overview and Summary

DARNA PTY LTD & ANOR v FAIR WORK OMBUDSMAN concerned a dispute between Darna Pty Ltd and Mr. David Darna (the applicants) and the Fair Work Ombudsman (the respondent). The applicants sought to set aside a notice issued by the Fair Work Ombudsman under section 550 of the Fair Work Act 2009 (Cth) (the Act), which required them to provide information and documents relevant to an investigation into alleged contraventions of the Act by Darna Pty Ltd. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the notice issued by the Fair Work Ombudsman was valid and enforceable. Specifically, the applicants argued that the notice was an abuse of process and that the Ombudsman had acted in bad faith in issuing it. They contended that the investigation was not being conducted for a legitimate purpose under the Act, but rather for an ulterior motive.

Judge Hartnett considered the scope of the Fair Work Ombudsman's investigative powers under section 550 of the Act, which permits the Ombudsman to require a person to provide information or documents relevant to an investigation into a contravention of the Act. The Court affirmed that the Ombudsman's powers are broad and that a notice issued under this section is presumed to be valid. To succeed in an argument of abuse of process or bad faith, the applicants would need to demonstrate a clear and compelling case that the Ombudsman's actions were not for a purpose authorised by the Act. The Court found that the applicants had failed to provide sufficient evidence to establish that the Ombudsman had acted in bad faith or that the notice constituted an abuse of process.

Consequently, the Court dismissed the applicants' application to set aside the notice.

Orders