Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Citation:
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Appeal from:
Application for leave to appeal: FWO v Devine Marine Group P/L & Ors [2012] FMCA 1127
Parties:
DEVINE MARINE GROUP PTY LTD (ACN 058 449 406) v FAIR WORK OMBUDSMAN
File number:
SAD 281 of 2012
Judge:
LANDER J
Date of judgment:
16 May 2013
Catchwords:
PRACTICE AND PROCEDURE – application for leave to appeal, and appeal, from interlocutory order of Federal Magistrate (now a Federal Circuit Court Judge) for discovery – whether order for discovery made upon declaration that such an order was “appropriate, in the interests of the administration of justice” pursuant to s 45 of the Federal Magistrates Act 1999 (Cth) – whether order for discovery fair in circumstances where costs of making discovery not recoverable – discussion of discovery in proceedings generally – whether application for leave to appeal, and appeal, within no-costs Fair Work Division
PRIVILEGE – application of privilege from self-incrimination in proceeding for civil penalty – whether “proper officer” available to swear affidavit of documents pursuant to discovery order
DEVINE MARINE GROUP PTY LTD (ACN 058 449 406) Applicant
AND:
FAIR WORK OMBUDSMAN Respondent
JUDGE:
LANDER J
DATE OF ORDER:
16 MAY 2013
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application for leave to appeal be allowed.
2.The draft notice of…
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
AGLC
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Case
[2013] FCA 442
Decision Date
CaseChat Overview and Summary
Devine Marine Group Pty Ltd applied for leave to appeal and subsequently appealed against an interlocutory order made by a Federal Magistrate for discovery of documents. The Fair Work Ombudsman, who had brought the proceeding for a civil penalty, had applied for an order for discovery. The Magistrate had made the order, stating that it was appropriate in the interests of the administration of justice under section 45 of the Federal Magistrates Act 1999. Devine Marine Group argued that the order was unfair because it did not provide for the recovery of costs incurred in making the discovery. Devine Marine Group also argued that the application for leave to appeal and the appeal itself should be dismissed because there were no costs associated with such applications in the Fair Work Division.
The court considered the nature of discovery orders in proceedings generally and whether an order for discovery could be made in the absence of a provision for costs recovery. The court also considered whether the application for leave to appeal and the appeal itself should be subject to the no-costs rule applicable to the Fair Work Division. The court found that the application for leave to appeal should be allowed and the appeal itself should proceed, because the issues raised were significant and the decision of the Magistrate was arguably erroneous. The court found that the order for discovery was unfair because it did not provide for the recovery of costs, and that the application for leave to appeal and the appeal itself should not be subject to the no-costs rule of the Fair Work Division.
The court allowed the application for leave to appeal and accepted the draft notice of appeal as a notice of appeal. The court allowed the appeal and set aside the orders made by the Magistrate, dismissing the application for discovery by the Fair Work Ombudsman. The court made no order as to costs.
Orders
Orders of the court
1. The application for leave to appeal be allowed.
2. The draft notice of appeal filed 9 November 2012 be accepted for filing as a notice of appeal.
3. The appeal be allowed and the orders made in Fair Work Ombudsman v Devine Marine Group Pty Ltd (ACN 058 449 406) & ors (ADG105/2012) by Federal Magistrate Simpson on 26 October 2012 be set aside and in lieu thereof the application filed 13 September 2012 by Fair Work Ombudsman in ADG105/2012 be dismissed.
4. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.