Devine Marine Group Pty Ltd v Fair Work Ombudsman

Case [2013] FCA 442


FEDERAL COURT OF AUSTRALIA

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

Legislation:

Evidence Act 1995 (Cth), s 187
Fair Work Act 2009 (Cth), ss 481, 535, 539, 550(2)(d), 562, 563, 565, 566, 567, 569, 569A, 570, 712
Fair Work Regulations 2009 (Cth), sub-reg 3.33
Federal Court of Australia Act 1976 (Cth), ss 13(3), 15(1C), 24, 43
Federal Court Rules 2011, rr 7.23, 20.22
Federal Magistrates Act 1999 (Cth), ss 3(2), 45
Federal Magistrates Court Rules 2001, rr 1.05(2), 14

Training and Skills Development Act 2008 (SA)

Cases cited:

Australian Securities and Investments Commission v Mining Projects Group Ltd (No 2) [2008] FCA 951
Construction, Forestry, Mining and Energy Union v CSBP Limited (No 2) (2012) 202 FCR 149
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372
R v Ronen & Ors (2004) 62 NSWLR 707
R v The Associated Northern Collieries (1910) 11 CLR 738
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129

Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96

Date of hearing: 2 April 2013
Place: Adelaide
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 106
Counsel for the Applicant: Mr S Mitchell
Solicitor for the Applicant: Corporate Network Legal Solicitors
Counsel for the Respondent: Mr N Rochow SC with Mr E Stratton-Smith
Solicitor for the Respondent: Office of the Fair Work Ombudsman

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

SAD 281 of 2012

BETWEEN:

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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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