Elvin v Fair Work Ombudsman (No 3)

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FEDERAL COURT OF AUSTRALIA

Elvin v Fair Work Ombudsman (No 3) [2025] FCA 195

Appeal from: Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483
File number(s): ACD 38 of 2024
Judgment of: COLLIER J
Date of judgment: 13 March 2025
Catchwords: PRACTICE AND PROCEDURE – case management orders sought in course of appeal – single Judge exercising appellate jurisdiction – interlocutory application seeking order for interrogatories – interlocutory application seeking order to set aside notice to admit – interrogatories and notice to admit original jurisdiction tools under Chapter 2 Federal Court Rules 2011 (Cth) – rules governing appellate jurisdiction found under Chapter 3 Federal Court Rules 2011 (Cth) – application for further evidence on appeal governed by s 27 Federal Court of Australia Act 1976 (Cth) and r 36.57 Federal Court Rules 2011 (Cth) – application for interrogatories dismissed – notice to admit set aside – s 37M Federal Court of Australia Act 1976 (Cth) and r 1.32 Federal Court Rules 2011 (Cth)
Legislation:

Fair Work Act 2009 (Cth) s 325(1)

Federal Court of Australia Act 1976 (Cth) s 27, 37M

Federal Court Rules 2011 (Cth) rr 1.32, 20.01, 21.01-04, 36.57
Cases cited:

Elvin v Fair Work Ombudsman (No 1) [2024] FCA 1071

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation)(No 8) [2024] FCA 483

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 7) [2023] FCA 1164

APX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 683

SZQPY v Minister for Immigration and Border Protection [2013] FCA 1113

Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795

Guss v Johnstone [2000] FCA 1455

Ainsworth v Hanrahan (1991) 25 NSWLR 155
Division: Fair Work Division
Registry: Australian Capital Territory
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 24
Date of hearing: 13 November 2024
Counsel for the Appellant: The Appellant was self-represented
Counsel for the First Respondent: Mr M Seck with Ms B Byrnes
Solicitor for the First Respondent: Office of the Fair Work Ombudsman

ORDERS

ACD 38 of 2024
BETWEEN:

COLIN KENNETH ELVIN

Appellant
AND:

FAIR WORK OMBUDSMAN

First Respondent

FOOT AND THAI MASSAGE PTY LTD (IN LIQUIDATION)

Second Respondent

JUN MILLARD PUERTO

Third Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

13 MARCH 2025

THE COURT ORDERS THAT:

1.The interlocutory application filed by the appellant on 9 September 2024 be dismissed.

2.The notice to admit dated 9 September 2024 served on the first respondent on 13 September 2024 be set aside pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) and r 1.32 of the Federal Court Rules 2011 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J

  1. Before me are two interlocutory applications filed in the appeal of Mr Colin Kenneth Elvin from the decision of the Federal Court…

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Details
Case
[2025] FCA 195
Decision Date

CaseChat Overview and Summary

Elvin v Fair Work Ombudsman (No 3) involved Mr Elvin, a party in a proceeding against the Fair Work Ombudsman, appealing certain decisions made by Katzmann J. The appeal centred on issues of minimum rates of pay for employees and record-keeping under the Fair Work Act 2009 (Cth). Mr Elvin appealed against judgments made in the initial proceedings, where he and his company were found to have contravened various provisions of the Act. The Fair Work Ombudsman cross-appealed certain aspects of the original decisions. Mr Elvin sought to obtain further information from the Fair Work Ombudsman through interrogatories and a notice to admit, which the Ombudsman opposed. The court was required to decide whether the interrogatories and the notice to admit were appropriate tools for the appellant to use in the context of an appeal and whether they should be permitted under the circumstances.

The court dismissed the application for interrogatories, noting that Mr Elvin had not demonstrated that the information sought could not have been obtained at trial. It emphasised the importance of finality in litigation and the discretionary nature of admitting further evidence. The court found that the application for interrogatories did not meet the criteria set out in the Federal Court Act and the Federal Court Rules, particularly regarding the necessity and cogency of the evidence. Furthermore, the court set aside the notice to admit, finding it inappropriate for the resolution of the appeal and in line with the principles of efficient and expeditious dispute resolution. The court concluded that the notice to admit was not a suitable tool in the context of an appeal and did not serve the interests of justice.

In light of the above, the court made the following orders: The interlocutory application filed by the appellant on 9 September 2024 was dismissed. The notice to admit dated 9 September 2024, served on the first respondent on 13 September 2024, was set aside pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) and r 1.32 of the Federal Court Rules 2011 (Cth). These orders reflect the court's view that the interlocutory applications were not appropriate in the context of the appeal and did not align with the principles of efficient and expeditious resolution of disputes.

Orders

Orders of the court

1. The interlocutory application filed by the appellant on 9 September 2024 be dismissed.

2. The notice to admit dated 9 September 2024 served on the first respondent on 13 September 2024 be set aside pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) and r 1.32 of the Federal Court Rules 2011 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I am satisfied that the first interlocutory application should be dismissed, and the orders sought in the second interlocutory application should be granted. I have reached this view for the following reasons.BACKGROUND In Elvin v Fair Work Ombudsman (No 1) [2024] FCA 1071, I set out relevant background to the proceedings as follows:1On 10 May 2024 Katzmann J gave final judgment in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483. The respondents were found to have contravened the Fair Work Act 2009 (Cth) in multiple respects referable to, inter alia, minimum rates of pay for employees and record keeping. Mr Elvin was the second respondent in that case, being the director of the first respondent Foot & Thai Massage Pty Ltd ACN 147 134 272, a company now in liquidation. Her Honour appointed a referee to calculate the extent of underpayment of employees’ entitlements and adopted the referee’s report (to which Mr Elvin unsuccessfully objected). Her Honour made orders including the payment of compensation, interest and pecuniary penalties by the company and Mr Elvin.2By Amended Notice of Appeal filed on 6 July 2024 Mr Elvin has appealed the judgment of Katzmann J given on 14 October 2021 (Liability Decision) and the final judgment given on 10 May 2024 (Penalty Decision). 3Further, by Amended Notice of Cross-Appeal filed on 19 July 2024 the Fair Work Ombudsman appealed part of the Liability Decision and Penalty Decision, materially referable to the finding of Katzmann J that the Hair and Beauty Award did not cover and apply to relevant employees of the company. Relevantly, both interlocutory applications currently before the Court concern the Fair Work Ombudsman’s decision not to make a claim against Mr Ruben Benting, a previous employee of Foot and Thai Massage Pty Ltd (in liquidation). In Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 7) [2023] FCA 1164, Katzmann J provided the relevant background to Mr Benting’s involvement in the matter at first instance as follows:11One of the Ombudsman’s claims, which I found proved, was that in two discrete periods Mr Elvin and the second respondent, Jun Puerto required six employees of FTM to repay FTM $800 in cash each fortnight because of a decline in the fortunes of FTM. The Ombudsman alleged, and I found, that the requirements to repay the money were contraventions of s 325(1) of the FW Act which at the time of the contraventions provided that:An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.12One of the witnesses who gave evidence in the Ombudsman’s case was Ruben Benting. He was one of the employees of FTM who was allegedly underpaid. He deposed that he was required to make similar payments to FTM. I queried with the Ombudsman’s counsel during the liability hearing why no claim had been made in relation to him and was told it was “a forensic choice”.13It appears from the material before the Court that Mr Elvin is vexed by the Ombudsman’s forensic decision. He has pressed the Ombudsman for detail and is dissatisfied with her responses to his queries. Equally, he is vexed by the Ombudsman’s decision not to pursue a case against the respondents based on allegations by other FTM employees who made similar allegations against them. He explained that this is the reason he issued the notices.CONSIDERATIONInterrogatories

Evidence

Evidence Before The Court

Further, r 36.57 of the Federal Court Rules provides:36.57 Further evidence on appeal(1) A party may apply for the Court to receive further evidence on appeal.(2)The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:(a) briefly but specifically, the facts on which the application relies;(b) the grounds of appeal to which the application relates;(c) the evidence that the applicant wants the Court to receive;(d) why the evidence was not adduced in the court appealed from.(3)The application and the affidavit must be filed as follows:(a) if the appeal is to the Full Court—4 copies;(b) if the appeal is to a single Judge—2 copies.(4)Any other party to the appeal who wants to adduce evidence on the appeal must file an affidavit at least 14 days before the hearing of the appeal.Note:Section 27 of the Act allows the Court to receive further evidence on appeal. To the extent that the Court has discretion to allow further evidence in an appeal:·An appellant must ordinarily demonstrate that he or she could not, without reasonable diligence, have adduced the material at trial: SZQPY v Minister for Immigration and Border Protection [2013] FCA 1113 at [54].·The proposed material must be cogent and likely to have produced a different result, had it been available at the trial: Guss v Johnstone [2000] FCA 1455 at [30].·Given the need for finality of litigation, strong discretionary considerations weigh against the admission of further evidence: Guss v Johnstone at [43], APX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 683 at [42]. The matter at first instance before Katzmann J was the subject of many interlocutory applications by the parties, and resultant determinations by her Honour. In such circumstances, Mr Elvin has not demonstrated that the material he now seeks could not have been adduced at trial before her Honour, or is likely to have produced a different result had it been available at trial. In my view, Mr Elvin’s interlocutory application filed on 9 September 2024 should be dismissed. Rule 1.32 of the Federal Court Rules empowers the Court to make any order it considers appropriate in the interests of justice. I further note that s 37M of the Federal Court Act requires that proceedings in the Court be administered in a manner which facilitates the resolution of disputes quickly, inexpensively and efficiently. The notice to admit dated 9 September 2024 served by Mr Elvin on the first respondent on 13 September 2024 should be set aside, pursuant to s 37M of the Federal Court Act and r 1.32 of the Federal Court Rules.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Relevantly, both interlocutory applications currently before the Court concern the Fair Work Ombudsman’s decision not to make a claim against Mr Ruben Benting, a previous employee of Foot and Thai Massage Pty Ltd (in liquidation). In Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 7) [2023] FCA 1164, Katzmann J provided the relevant background to Mr Benting’s involvement in the matter at first instance as follows:11One of the Ombudsman’s claims, which I found proved, was that in two discrete periods Mr Elvin and the second respondent, Jun Puerto required six employees of FTM to repay FTM $800 in cash each fortnight because of a decline in the fortunes of FTM. The Ombudsman alleged, and I found, that the requirements to repay the money were contraventions of s 325(1) of the FW Act which at the time of the contraventions provided that:An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.12One of the witnesses who gave evidence in the Ombudsman’s case was Ruben Benting. He was one of the employees of FTM who was allegedly underpaid. He deposed that he was required to make similar payments to FTM. I queried with the Ombudsman’s counsel during the liability hearing why no claim had been made in relation to him and was told it was “a forensic choice”.13It appears from the material before the Court that Mr Elvin is vexed by the Ombudsman’s forensic decision. He has pressed the Ombudsman for detail and is dissatisfied with her responses to his queries. Equally, he is vexed by the Ombudsman’s decision not to pursue a case against the respondents based on allegations by other FTM employees who made similar allegations against them. He explained that this is the reason he issued the notices.CONSIDERATIONInterrogatories Rules of Court make provision for orders for interrogatories against an historical background where pleadings were typically lengthy and complex proceedings. As Kirby P explained in Ainsworth v Hanrahan (1991) 25 NSWLR 155 at [161]-[162], Courts of Chancery sought to address defects in legal process by enabling access by litigants to documents in the possession of, or answers to questions by, an opponent. To that extent the ability of a party to serve interrogatories is a form of discovery available to a party in the course of a proceeding. The power of the Court to order interrogatories is found in Part 21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). In particular, I note rr 21.01, 21.02 and 21.03 which provide:21.01 Order for interrogatories(1)A party may apply to the Court for an order that another party provide written answers to interrogatories.(2)The application must be accompanied by an affidavit annexing the proposed interrogatories.21.02 When application may be madeA party must not make an application under rule 21.01 until 14 days after the pleadings have closed and, if an order has been made under Division 20.2, the parties have served any lists of documents.21.03 Answers to interrogatories(1) A party who is ordered to answer interrogatories must do so by filing:(a) written answers in accordance with:(i) Form 40; and(ii) subrules (3) and (4); and(b) an affidavit verifying the answers in accordance with rule 21.04.(2) The party must serve the documents mentioned in subrule (1) on each party who has filed a notice of address for service.(3) The answers must address each interrogatory:(a) by directly answering the substance of the interrogatory; or(b) by objecting to answer the interrogatory on a ground mentioned in subrule (4) and briefly stating the facts on which the objection is based.(4) A party may object to answering an interrogatory only on one or more of the following grounds:(a) that the interrogatory does not relate to an issue raised on the pleadings and in issue;(b) that the interrogatory is vexatious or oppressive;(c) privilege.Note: The Court will, in its order, specify the time for compliance.