Fair Work Ombudsman v A to Z Catering Solution Pty Ltd

[2017] FCCA 188

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v A TO Z CATERING SOLUTION PTY LTD & ANOR [2017] FCCA 188

Catchwords:
PRACTICE AND PROCEDURE – Evidence – admissibility – whether evidence sought to be tendered by applicant was obtained improperly or in contravention of a law of Australia – whether applicant engaged in any improper conduct – whether assuming applicant did engage in such conduct the evidence was obtained in consequence of that conduct – objections rejected.

Legislation:

Evidence Act 1995 (Cth), ss.138, 138(1), 138(1)(a), 138(1)(b)

Fair Work Act 2009 (Cth), ss.45, 535, 535(1), 536(1), 712

Fair Work Regulations 2009 (Cth), regs.3.33(1), 3.34, 3.36, 3.44(1), 3.44(6)

Cases cited:

Employment Advocate v Williamson [2001] FCA 1164

Parker v Comptroller-General of Customs [2009] HCA 7

R v Barakat; R v Younes (No 2) [2016] NSWSC 1255
Ridgeway v R [1995] HCA 66
Robinson v Woolworths Ltd [2005] NSWCCA 426

Applicant: FAIR WORK OMBUDSMAN

First Respondent: A TO Z CATERING SOLUTION PTY LIMITED ACN 155 365 370

Second Respondent: MOHAMMED MOSEEM YASIN

File Number: SYG 3448 of 2014

Judgment of: Judge Manousaridis

Hearing date: 1 and 2 February 2017

Delivered at:	Sydney
Delivered on:	3 February 2017

REPRESENTATION

Counsel for the Applicant: Mr M Easton

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the Respondent: Mr I Latham

Solicitors for the Respondent: Segelov Taylor Lawyers

ORDERS

1. The respondents’ objections to paragraphs 9-25 of the affidavit of William George Bodkin made on 14 October 2016 and to paragraphs 14-57 of the affidavit of Darren John Lang made on 17 October 2016, to the extent those objections are based on s.138 of the Evidence Act 1995 (Cth), are rejected.

2. The application in a case filed on 20 January 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3448 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

A TO Z CATERING SOLUTION PTY LIMITED 155 365 370 & ANOR

First Respondent

MOHAMMED MOSEEM YASIN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The respondents, whom the applicant (FWO) claims have contravened a number of provisions of the Fair Work Act 2009 (Cth) (FW Act), object to the tender of evidence (contentious evidence) which the FWO submits is relevant to a number of claims made in these proceedings. The objection is based on s.138 of the Evidence Act 1995 (Cth) (Evidence Act).

2. To be in a position to rule on the respondents’ objections, it will be necessary to describe the claims the FWO makes in her statement of claim, identify the contentious evidence, and describe the apparent relevance of the contentious evidence.

The statement of claim

1. The FWO alleges the first respondent (AZC) operated a catering business that was contracted to supply labour to the Riverina Australian Football Club Limited in Wagga Wagga, New South Wales. The FWO also alleges that the second respondent (Mr Yasin) has been the sole director of AZC, and that Mr Yasin has been responsible for the overall direction, management, and supervision of AZC, including decisions regarding AZC’s employees. These matters are admitted by AZC.

2. The FWO alleges that, during the relevant time, AZC was covered by the Registered and Licensed Club Award 2010 (Award), but that, contrary to s.45 of the FW Act, it failed to make payments it was required to make under the Award to a number of its employees (Employees). AZC admits it was covered by the Award, and that it did not make the payments the FWO alleges AZC was required to make to the Employees. The FWO also alleges, and AZC admits, that (a) contrary to s.536(1) of the FW Act, AZC failed to provide pay slips to a number of its employees within one working day of paying an amount to the employees for work they performed; and (b) contrary to s.535(1) of the FW Act and reg.3.33(1), reg.3.34, and reg.3.36 of the Fair Work Regulations 2009 (Cth) (FW Regulations), AZC failed to make and keep for seven years records that set out the remuneration and overtime paid to the Employees, the annual leave taken by the Employees, and the balance of entitlements the Employees had for annual leave.

3. The FWO also alleges that, contrary to reg.3.44(1) of the FW Regulations, AZC kept records (Weekend Rate Records) that were false or misleading to the knowledge of AZC, and that, contrary to reg.3.44(6) of the FW Regulations, AZC made use of the Weekend Rate Records knowing they were false or misleading by providing these documents to the FWO. The FWO alleges, and AZC admits, that AZC provided the Weekend Rate Records to the FWO in response to a letter dated 17 January 2014 that Mr Bodkin, a Fair Work Inspector (FWI), sent to AZC (Letter).

4. AZC has not given a substantive answer to the FWO’s allegations that the Weekend Rate Records were false or misleading to the knowledge of AZC, and that AZC provided the Weekend Rate Records knowing they were false or misleading. Instead, AZC, in its points of defence, states it has “sought to interrogate the second respondent as to the matters in” the relevant paragraphs of the statement of claim, but the “second respondent has claimed his privilege as to penalty and refused to answer those questions”.[1] For the purpose of these reasons, I will treat this statement as a non-admission of the allegations contained in the statement of claim to which it relates.

   [1] First Respondent’s Points of Defence, [34], [38], [41]

5. The FWO also alleges Mr Yasin was involved in AZC’s contraventions of the FW Act to which I have referred. Mr Yasin has filed a document titled “Points of Defence – Second Respondent”. He does not in that document provide a substantive response to any of the allegations made in the statement of claim. Mr Yasin only states that “the second respondent exercises his privilege against penalty and does not plead to each paragraph”.[2]

   [2] Second Respondent’s Points of Defence, [1]. The FWO makes other claims in the statement of claim. It is not necessary, however, top refer to these claims.

The contentious evidence and its apparent relevance

1. The contentious evidence may usefully be divided into two categories. The first is the Weekend Rate Records. As I have already noted, these documents were provided to the FWO by AZC in response to the Letter. The Weekend Rate Records are exhibited to the affidavit of Mr Lang.[3]The second category is documents and evidence of conversations that were generated after 17 January 2014. The evidence and documents are to be found and are referred to in the affidavits of Mr Lang[4] and Mr Bodkin[5] (Investigation Evidence).

   [3] Affidavit of D J Lang, 17.10.16, [16]; Exhibit DL-1, tab 16. This exhibit, and all other evidence to which I refer in these reasons for judgment, were admitted as evidence in the voir dire which I directed be held for the purpose of receiving evidence relevant to the admissibility of the contentious evidence.

   [4] Affidavit of D J Lang, 17.10.2016, [14]-[57]; Exhibit DL-1, tabs 2 and 6-47

   [5] Affidavit of W G Bodkin, 31.01.2017, [9]-[25]; Annexures “WB-2” to “WB-11”

2. The Weekend Rate Records are directly relevant to the FWO’s claims that AZC kept and used records that were false or misleading to the knowledge of AZC. The FWO submits the Investigation Evidence is relevant to AZC’s knowledge of the falsity of the Weekend Rate Records. The FWO also submits the Weekend Rate Records and the Investigation Evidence are relevant to Mr Yasin’s participation in, and knowledge of, AZC’s contraventions of s.45, s.535, and s.536 of the FW Act, and of his knowledge of the falsity of the Weekend Rate Records.

Grounds of the objection and FWO’s response

1. The respondents claim the contentious evidence was obtained improperly or in contravention of an Australia law, or they were obtained in consequence of an impropriety or of a contravention of an Australian law. The respondents principally rely on Mr Bodkin’s sending the Letter, about which they make the following submissions.

   a)Mr Bodkin, who I have already noted was a FWI, sent the Letter in contravention of an Australia law. This submission is based on the following premises:

   i)By sending the Letter, Mr Bodkin purported to exercise coercive power because the Letter purported to require its addressee to produce the documents identified in the Letter.

   ii)The only power a FWI has to coerce a person to produce documents is the power conferred by s.712 of the FW Act.

   iii)The Letter, however, did not comply with s.712 of the FW Act in a number of respects.

   iv)The Letter, therefore, was sent in contravention of a law of Australia, namely, s.712 of the FW Act.

   b)Even if Mr Bodkin’s sending the Letter was not a contravention of s.712 of the FW Act, his sending the Letter was improper for the reasons the respondents submit the sending of the Letter contravened s.712 of the FW Act.

   c)Further, or in the alternative, Mr Bodkin’s sending the Letter was improper for one or more of the following additional reasons:

   i)The Letter demanded that its addressee answer questions contained in a pro forma document that was attached to the Letter.

   ii)The Letter contained a misleading statement about the reasons for which it was created.

   iii)The Letter failed to disclose that compliance with the Letter was voluntary.

2. In addition to Mr Bodkin’s sending the Letter, the respondents rely on evidence of two conversations Mr Bodkin had with Mr Yasin, one on 20 January 2014, and the other on 30 January 2014.[6] The respondents submit the conversations were improper because Mr Bodkin did not inform Mr Yasin that he did not have to produce the documents referred to in the Letter.

   [6] The evidence of the conversations is at pages 171 and 173 of Exhibit WGB-1.

3. In response to the respondents’ submissions, the FWO submits:

   a)The Letter did not purport to compel the addressee to produce the documents referred to in the Letter.

   b)Even if the Letter did purport to compel the production of documents, and thus did not comply with s.712 of the FW Act, the sending of the Letter did not constitute the contravention of an Australian law and was not an impropriety.

   c)The Letter contained no misrepresentation; and if it did, the misrepresentation did not render improper Mr Bodkin’s sending of the Letter.

   d)Assuming the Letter was sent in contravention of an Australian law, or there was some impropriety in Mr Bodkin’s sending it, the respondents have not satisfied the onus that lies on them to show that the contravention or impropriety caused the FWO to obtain the contentious evidence.

   e)Assuming the Letter was sent in contravention of an Australian law, or there was some impropriety in Mr Bodkin’s sending it, and the respondents have satisfied the onus that lies on them to show that the contravention or impropriety caused the FWO to obtain some or all of the contentious evidence, having regard to the matters stated in s.138(3) of the Evidence Act, the desirability of admitting the contentious evidence outweighs the undesirability of admitting the contentious evidence given the (assumed) finding that some or all of the contentious evidence was obtained in contravention of an Australia law or as a result of an impropriety.

Principles

1. The starting point is the text of s.138(1) of the Evidence Act, which is as follows:

   Evidence that was obtained:

   (a)improperly or in contravention of an Australian law, or

   (b)in consequence of an impropriety or of a contravention of an Australian law,

   is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

2. A number of observations may be made about s.138(1) of the Evidence Act. First, it is directed to evidence “that was obtained”. The ordinary meaning of “obtain” is “to come into the possession of; to procure; to get, acquire, or secure”.[7] That presupposes human agency. “Evidence that was obtained”, therefore, denotes evidence that has come into the possession of a person, or which has been got, or acquired, or secured by a person, as a result of that or some other person’s conduct. That, in turn, implies a causal connection between the conduct of a person, and that or some other person’s coming into possession of evidence.

   [7] Oxford English Dictionary

3. Second, s.138(1) of the Evidence Act distinguishes between two classes of evidence. The first is evidence obtained in the manner specified in s.138(1)(a) of the Evidence Act, namely, evidence that was obtained improperly or in contravention of an Australian law. That which must be improper or which must be in contravention of a law of Australia is the conduct of a person (or persons) by which evidence is obtained by that person (or persons) or by some other person. Paragraph (a) of s.138(1) of the Evidence Act, therefore, applies to evidence that has come into the possession of a person directly or indirectly because of that or some other person’s contravening or improper conduct.

4. The second class of evidence is that identified in s.138(1)(b) of the Evidence Act, namely, evidence obtained “in consequence of an impropriety or of a contravention of an Australian law”. This paragraph does not expressly identify that which must have the character of an impropriety or of a contravention of an Australian law. Given the context in which s.138(1)(b) of the Evidence Act appears, however, it is clear that that which must have the character of an impropriety or of a contravention of an Australian law is the conduct of a person or persons by which that person or persons or some other person came into the possession of evidence.

5. If that is correct, s.138(1)(b) of the Evidence Act, read literally, says nothing more than what s.138(1)(a) says, namely, that there must be a causal connection between improper or contravening conduct, and the obtaining of evidence. It cannot be supposed, however, that Parliament intended s.138(1)(b) of the Evidence Act to be mere surplusage. In my opinion, any apparent surplusage of s.138(1)(b) of the Evidence Act is due to an ellipsis; and the ellipsis is the omission of the words “of evidence that was obtained because of” after the words “in consequence”. That ellipsis should be resolved by construing s.138(1)(b) of the Evidence Act as including the words “of evidence that was obtained because of” after the words “in consequence”. In my opinion, therefore, s.138(1)(b) of the Evidence Act applies to evidence that has been obtained as a consequence of evidence that was obtained because of an impropriety or of a contravention of an Australian law.

6. This construction is supported by the following passage from the Australian Law Reform Commission Interim Report on Evidence:[8]

   Consequentially Discovered Evidence. A suspect is interrogated. The interrogators act improperly. An admission is made, and as a result of the admission incriminating real and other evidence is discovered. Under present law, the consequentially discovered evidence could be excluded applying the Bunning v Cross discretion. The policy arguments which justify exclusion of an admission obtained improperly equally justify exclusion of consequentially discovered evidence. It is therefore proposed that the public interest balancing discretion apply to such evidence.

   [8] Australian Law Reform Commission, Evidence (Interim Report), Report No 26 (1985) [966]

7. The third observation or set of observations relates to the meaning of other expressions in s.138(1) of the Evidence Act. First, there is the word “contravention”. French CJ examined the meaning of that word in Parker v Comptroller-General of Customs, where his Honour said:[9]

   “Contravention” refers to “[t]he action of contravening or going counter to; violation, infringement, transgression”.

   Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.

   [9] [2009] HCA 7 at [29]-[30]

8. French CJ also considered the meaning of the word “improper”: [10]

   The relevant ordinary meanings of “improper” include “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”.

   [10] [2009] HCA 7 at [29]

9. In Employment Advocate v Williamson,[11] Branson J said that the words “improperly” and “impropriety” in s.138 of the Evidence Act should be understood in the sense discussed by Mason CJ, Deane, and Dawson JJ in Ridgeway v R.[12] Her Honour quoted a lengthy passage from their Honours’ judgment in that case which included the following:[13]

   The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances…

   [11] [2001] FCA 1164 at [80]

   [12] [1995] HCA 66

   [13] [1995] HCA 66 at [25]

10. In Robinson v Woolworths Ltd Basten JA (with whose reasons Barr J agreed) said that the identification of impropriety requires attention “to the following propositions”:[14]

    First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.

    [14] [2005] NSWCCA 426 at [23]

11. Basten JA also said:[15]

    In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.

    Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”: Ridgeway (at 36). Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject... The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to ‘community standards’ will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts.

    [15] [2005] NSWCCA 426at [36]-[37]

12. Finally, it would be convenient to say something about onus of proof. The relevant principles were stated in R v Barakat; R v Younes (No 2):[16]

    In an application to exclude evidence under s 138 of the Evidence Act, the onus lies on the accused to establish the impropriety or illegality on the balance of probabilities before any onus is placed upon the Crown to persuade the court that the evidence should be admitted…

    [16] [2016] NSWSC 1255 at [6]

1. I now consider the issues that arise on the parties’ competing submissions.

Was the sending of the Letter a purported exercise of coercive power?

1. The first question to consider is whether, as the respondents submit, Mr Bodkin’s sending the Letter purported to constitute the exercise of coercive power. To properly consider that question, it would be useful to set out the context in which Mr Bodkin drafted and sent the Letter.

Factual context

1. On or about 3 December 2013, Ms Fulmer and her father met with Mr Bodkin at the FWO’s office in Wagga Wagga. Ms Fulmer informed Mr Bodkin she was being paid flat rates of pay of $20 per hour, cash in hand, she had not been provided with a payslip, no tax had been deducted from her pay, and no superannuation had been paid.[17] Although Mr Bodkin does not, in his affidavit, say that Ms Fulmer identified AZC as her employer, I infer that she did so. Ms Fulmer completed a Workplace Complaint Form. Mr Bodkin understood that Ms Fulmer was not prepared to lodge a complaint unless her complaint was treated as confidential.[18]

   [17] Affidavit of W G Bodkin, 31.01.2017, [12]

   [18] Affidavit of W G Bodkin, 31.01.2017, [12]

2. Mr Bodkin informed Ms Fulmer he would action her complaint “after the Christmas shut-down period”.[19] Mr Bodkin says that had Ms Fulmer’s complaint not been confidential, he could have notified AZC of Ms Fulmer’s allegations and requested the relevant time and wages records.[20] He also says that, because Ms Fulmer’s complaint was confidential, it was not appropriate to refer the matter to the “Assisted Voluntary Resolution Team”.[21]

   [19] Affidavit of W G Bodkin, 31.01.2017, [13]

   [20] Affidavit of W G Bodkin, 31.01.2017, [15]

   [21] Affidavit of W G Bodkin, 31.01.2017, [15]

3. At the time Mr Bodkin received the complaint, one of the options available to a FWI when he or she received a confidential complaint was to “conduct an assessment of the employer”.[22] In that context, FWIs “generally used a template that had been created” for the purpose of conducting audits “aimed at particular industries or types of contravening conduct”.[23] Mr Bodkin recalls having had a discussion with “the Director at the time” during which he was told that “in this kind of case where we need to protect the identity of the complainant, particularly if they are a casual or still working, we should issue an audit letter and carry out an individual audit of that employer”.[24]

   [22] Affidavit of W G Bodkin, 31.01.2017, [18]

   [23] Affidavit of W G Bodkin, 31.01.2017, [18], [6.a.ii]

   [24] Affidavit of W G Bodkin, 31.01.2017, [19]

The Letter

1. The Letter is addressed to “Mohammed Moseem Yasin Director A to Z Catering Solution Pty Limited” after which an address is stated. It was sent on 17 January 2014 by ordinary post.[25]

   [25] Exhibit DL-1, page 20

2. The Letter is headed “Re: Assessment of time and wages records”, and is as follows:

   The Fair Work Ombudsman (FWO) is conducting an assessment of time and wage records within the catering industry in the Wagga Wagga region. This letter is to advise that your business has been selected for an assessment.

   The assessment will be undertaken by an officially appointed Fair Work Inspector, who is empowered under the Fair Work Act 2009 to enter certain business premises and inspect and copy time and wages records, or request that records be sent to our office for assessment.

   What are you required to do?

   Please forward to me by close of business Friday 31 January 2014 the following records in relation to all of your employees in Wagga Wagga and Griffith . . .

3. The Letter then sets out classes of documents. These include, among other things, payroll advice records or pay slips, attendance records, superannuation records, and apprenticeship or trainee contracts. The Letter then continues:

   The records that you forward to me for the purposes of this assessment can include any hard copy or electronic documents. Should you choose to forward hard copy documents please do not staple them.

   If you employ more than 30 staff in Wagga Wagga/Griffith, please contact me to discuss the appropriate number of records to provide.

   These documents should be forwarded to me at . . . Alternatively, they can be delivered in person to this office at . . .

   If we find that your business is not complying with any of its obligations, we will explain to you the contravention(s) and what you need to do to rectify the matter. Only where voluntary rectification is not achieved, or in cases of serious and/or wilful contraventions, we will take further compliance action.

   Should you have difficulty arranging the preparation and delivery of the records, or require further information on the requirements of this assessment, please contact me on . . . .

4. The Letter requested the addressee forward to Mr Bodkin “the completed Entity Information Form (enclosed)”. That is a FWO pro forma which requests various types of information concerning the employer and the employees of the employer. The Letter also stated that it attached “fact sheets”, these being “About the Fair Work Ombudsman”, and “Powers of Fair Work Inspectors”.

5. There is an issue about the intended addressee of the Letter. In my opinion, AZC is the intended addressee. The Letter is addressed to Mr Yasin as director of AZC; and the Letter (on the respondents’ case) demands documents held by the employer. Nothing, however, turns on this.

Purported exercise of coercive power?

1. In their written submissions, the respondents submit the Letter “clearly purports to exercise coercive power”.[26] They rely on the Letter stating that an assessment will be undertaken, that the FWI has power to request records be sent for assessment, and that the documents should be provided to Mr Bodkin. The respondents also rely on the Letter asking “What are you required to do?”, and on the Letter attaching the document “Powers of Fair Work Inspectors” which contains information about the powers that are available to a FWI to “issue a written Notice to Produce Records or Documents”.[27] Counsel for the respondents repeated the substance of these submissions in oral address.

   [26] Submissions by the applicant in a case [the respondents], 26.01.17, [7]

   [27] Submissions by the applicant in a case [the respondents], 26.01.17, [7];[8]

2. In general terms, coercion consists of a demand directed to a person coupled with an unlawful or improper threat of adverse consequences to that or to some other person if the demand is not met. The respondents, however, do not articulate what they mean by “coercive exercise of power”, or how they submit Mr Bodkin’s sending of the Letter constituted the purported exercise of such power.

3. The coercive power the respondents presumably have in mind is that which is associated with a notice to produce that is validly issued under s.712 of the FW Act. The only coercion that is associated with such a notice, however, is the exposure of the person to whom a notice is issued to a pecuniary penalty if, without reasonable excuse, the person fails to comply with it. Assuming, as the respondents submit, the Letter is properly to be characterised as purporting to require the addressee to produce the documents, and to complete the “Entity Information Form”, there is nothing in the Letter that could suggest, or reasonably suggest, that any failure by the addressee, AZC, to comply with the requirements of the Letter would or could result in any civil liability or any other legal consequence to AZC. Further, a failure to meet the demands stated in the Letter would have been incapable of giving rise to any such consequence because, as the respondents themselves submit, the Letter did not meet the requirements of a valid notice to produce as prescribed by s.712 of the FW Act. In those circumstances, the sending of the Letter, did not and, indeed, could not, constitute the exercise or the purported exercise of any coercive power.

4. It may be the Letter could be characterised as coercive in the sense it was capable of inducing AZC or Mr Yasin to do that which AZC or Mr Yasin would otherwise not do. The source of such coercion, however, would not have been the threat of some legal consequence that would arise because of a failure by the addressee to comply with the requirements of the Letter; the source of such coercion would have been AZC’s or Mr Yasin’s fear or expectation that Mr Bodkin (or some other FWI) would escalate his dealings with AZC and Mr Yasin by exercising coercive powers that were available to Mr Bodkin (or any other FWI) under the FW Act if AZC were not to comply with the requirements contained in the Letter.

5. I have so far assumed that the respondents are correct in characterising the Letter as requiring the addressee to produce documents and to complete the “Entity Information Form”. I do not, however agree with that characterisation. It is true the Letter asks “What are you required to do?” But that must be seen in the context of the Letter as a whole. The request for the documents is prefaced with the word “please”. That cannot be characterised as a command or mandatory direction that the addressee provide the documents; it is a request. The Letter also invites the addressee to telephone the author if the addressee has any difficulties arranging the preparation and delivery of the documents. That too is not the usual language of command.

6. Before I leave this section of my reasons, I should note I do not understand the respondents to submit the Letter contained any express or implied representation to the effect that the failure by the addressee to comply with it would expose the addressee to some adverse legal consequence. Even if such a submission were to be made, it would be incapable of succeeding. As I have already concluded, there is nothing in the Letter that could have suggested that a failure to do that which the Letter requested (or, on the respondents’ case, required) be done would have resulted in some legal consequence to the addressee.

7. For these reasons, I do not accept the respondents’ submission that the sending of the Letter constituted the purported exercise of coercive power. I do not, therefore accept, that the sending of the Letter constituted a contravention by Mr Bodkin of s.712 of the FW Act or was improper.

Was the sending of the Letter misleading and, for that reason, improper?

1. The respondents submit the statement in the Letter that the FWO was conducting an assessment of time and wages records within the catering industry in the Wagga Wagga region (Statement) was untrue, and that rendered the sending of the Letter improper. The first question is whether the Statement was incorrect.

2. Counsel for the FWO submitted the Statement was correct. Counsel relied on evidence given by Mr Bodkin in cross-examination. Mr Bodkin said that he asked “one of the State directors” whether “an assessment [was] going on in the industry in the particular region”, and that the reply was that “in the regions, there is an ongoing assessment”.[28] Counsel submitted the Statement should be read as a statement to the effect that the FWO was undertaking “an ongoing assessment” in the Wagga Wagga region. I do not accept counsel’s submission.

   [28] T29.30 (Day 1, 01.02.2017)

3. In his affidavit, when describing the duties he performed as a FWI, Mr Bodkin refers to his assisting “with audits conducted by the FWO aimed at particular industries or types of contravening conduct”.[29] Mr Bodkin also said that the Letter was based on a template that was used when conducting audits of that type.[30] In my opinion, therefore, the assessment in the catering industry which the Statement represented was being undertaken was intended to be a reference to an audit of the kind “conducted by the FWO aimed at particular industries or types of contravening conduct”.[31] That, however, is not an accurate characterisation of the assessment Mr Bodkin began or proposed to undertake in relation to AZC when he sent the Letter. Mr Bodkin had decided to assess AZC’s record keeping and compliance with its obligations under the Award; and the Statement was misleading to the extent it represented the FWO was engaged in a broader process of auditing the catering industry in the Wagga Wagga region.

   [29] Affidavit of W G Bodkin, 31.01.2017, [6a.ii]

   [30] Affidavit of W G Bodkin, 31.01.2017, [18]

   [31] Affidavit of W G Bodkin 31.01.2017, [6a.ii]

4. Further, I do not accept that the work Mr Bodkin performed in relation to AZC formed part of any ongoing assessment of any industry or region. The evidence shows that Mr Bodkin’s action against AZC was induced by the complaint Ms Fulmer made, and that the only reason Mr Bodkin decided to assess AZC, rather than specifically notify AZC of Ms Fulmer’s complaint, was to respect Ms Fulmer’s request that her complaint be confidential. There is no evidence that Mr Bodkin’s assessment formed part of any broader “ongoing assessment” of any industry or region. There is no evidence, for example, that Mr Bodkin informed any other person or section within the FWO of the progress of his investigation; or that there was any person or section within the FWO that was responsible for monitoring or coordinating any ongoing assessment of any industry. Even if I were to accept that Mr Bodkin’s assessment of AZC was part of an “ongoing assessment” of an industry or region or particular practice, that could not reasonably be characterised as an “assessment of time and wage records within the catering industry in the Wagga Wagga region”.

5. I find, therefore, that the Letter was misleading to the extent it represented that the FWO was conducting an assessment of time and wages records within the catering industry in the Wagga Wagga region. The next question is whether, because the Letter contained a misrepresentation, Mr Bodkin’s sending the Letter was improper.

6. That a letter issued by a regulator contains a misrepresentation may be a reason for concluding that the sending of the letter is improper. That a regulator, however, has sent a letter that contains a misrepresentation does not by itself necessarily render the sending of the letter improper. Additional matters must be considered. These include whether the person sending the letter had drawn his attention to the statement that conveyed the misrepresentation, whether the person had formed any belief in the truth of the representation, and the relative importance of the representation in the context of the contents of the letter read as a whole.

7. As I have already noted, Mr Bodkin’s evidence, which has not been challenged, and which, for the purposes of this application, I am prepared to assume is true, was that he prepared the Letter from a template the FWO used when conducting industry-wide audits, he adapted the Letter to deal with a complaint that had been made by a person who requested confidentiality, he asked a director of the FWO whether, in effect, the Statement was true, and the director said that “in the regions, there is an ongoing assessment”.[32] Mr Bodkin’s evidence suggests he believed that the general assessment he intended to undertake of AZC’s record keeping practices was an “ongoing assessment”, and that the Statement was an accurate description of what Mr Bodkin proposed to do in relation to AZC. The evidence does not satisfy me that Mr Bodkin believed the Statement was incorrect, or that he was indifferent to whether the Statement was incorrect.

   [32] T29.30 (Day 1, 01.02.2017)

8. Further, the Statement formed an insignificant part of the Letter. It did not require the addressee to do anything; and it was not inconsistent with the purpose of the Letter, namely to assess the record-keeping activities of AZC, or with what the Letter requested the addressee do, namely to provide documents that on their face could only have been relevant to the carrying out of such an assessment.

9. For these reasons, although I am satisfied the Letter contained a misrepresentation, I am not satisfied that this rendered improper Mr Bodkin’s sending the Letter.

The “Entity Information Form”

1. The respondents submit the Letter was improper because it required the addressee to complete the “Entity Information Form” that was attached to the Letter. I do not accept that submission. The Letter did not require the addressee to complete the document. As I have already concluded, the Letter did not require the addressee to do anything. The Letter stated, “[p]lease forward to me” the documents referred to in the Letter including “the completed Entity Information Form (enclosed)”. That is the language of request, not command.

2. I do not accept, therefore, that the Letter was improper because it provided the addressee with an “Entity Information Form” with a request that it be completed.

Failure to disclose compliance voluntary

1. The respondents submit the sending of the Letter was improper because, to the extent it requested, rather than required, the addressee to provide documents and to complete the “Entity Information Form”, the Letter did not inform the addressee that compliance with the requests contained in the Letter was voluntary.

2. That submission implies that the Letter conveyed or could convey the impression that the addressee was required to provide the documents. I do not agree with that assumption. As I have already concluded, the Letter was a request, not a command, that the addressee provide the documents and complete the “Entity Information Form”. I do not accept, therefore, that the Letter was improper because it did not expressly state that the addressee’s compliance with the requests contained in the Letter was voluntary.

3. The respondents also submit Mr Bodkin acted improperly by failing to inform Mr Yasin, in the telephone conversations of 20 January 2014 and 30 January 2014, that compliance with the requests made in the Letter was voluntary. The basis of that submission appears to be that the telephone calls were initiated by Mr Yasin in response to the Letter. Given I have concluded the Letter was not improper because it did not expressly state that compliance with the requests contained in it was voluntary, I also conclude Mr Bodkin did not act improperly by not informing Mr Yasin in the telephone conversations that compliance with the requests contained in the Letter was voluntary.

Did the Letter lead to the obtaining of the contentious evidence?

1. I have so far concluded that Mr Bodkin did not contravene any Australian law, and he did not otherwise act improperly, by sending the Letter, or by not informing Mr Yasin in the telephone conversations of 20 January 2014 and 30 January 2014 that compliance with the requests contained in the Letter was voluntary. In this section of my reasons, I assume, contrary to what I have found, that Mr Bodkin did act improperly in the manner alleged by the respondents. The question I consider is whether this led to the FWO obtaining all or any of the contentious evidence. In other words, I consider whether there is any causal relationship between the acts which the respondents claim constituted a contravention of a law of Australia or an impropriety, and the FWO’s obtaining all or any of the contentious evidence.

2. I first assume that Mr Bodkin’s sending the Letter constituted a purported exercise of coercive power. To establish a causal link between the purported exercise of coercive power, and the FWO’s coming into possession, directly or indirectly, of any of the contentious evidence, it is necessary to establish the following: the controlling mind of AZC understood the Letter to contain a demand that AZC provide the documents and completed “Entity Information Form” and a threat that if the demand were not met some adverse consequence would flow to AZC or to some other person; and that the controlling mind was induced to cause a AZC to comply with the demand to avoid the threatened consequence. The respondents, however, have not put on any evidence from the person who could be said to have been the controlling mind of AZC. And the evidence that is before me cannot satisfy me, on the balance of probabilities, that AZC provided the documents because it believed there was a threat of adverse consequences attached to its not complying with the requirements (on the respondents’ case) contained in the Letter, and that it complied with the requirements to avoid the threatened adverse consequences. I am not satisfied, therefore, there is any causal connection between the Letter, assuming it constituted the purported exercise of coercive power, and AZC producing to the FWO the Weekend Rate Records. I am also not satisfied the respondents have established any causal connection between the Letter and the FWO coming into the possession of the Investigating Evidence.

1. I next assume, contrary to what I have found, that the sending of the Letter was improper because it contained a misrepresentation. To establish, in these circumstances, a causal connection between the sending of the Letter, and the FWO coming into the possession of the contentious evidence, it will be necessary for the respondents to show AZC relied on the misrepresentation contained in the Letter. The respondents have not put on any evidence from Mr Yasin or any other person who could be said to have been the controlling mind of AZC at the time AZC provided the information requested in the Letter, about whether he relied on the Statement in deciding to provide the documents. Nor is there any evidence from Mr Yasin that he relied on the Statement when deciding to telephone Mr Bodkin on 20 January 2014 and 30 January 2014. Given my conclusion that the Statement constituted an insignificant part of the Letter, I am not prepared to infer that AZC relied in any way on the Statement.

2. I am not satisfied, therefore, there is any causal connection between the Letter because it contained a misrepresentation. I am also not satisfied the respondents have established any causal connection between the communication of the Statement and the FWO coming into the possession of the Investigating Evidence.

3. Finally, I assume, contrary to what I have found, that Mr Bodkin acted improperly by not expressly disclosing in the Letter or in his conversations with Mr Yasin on 20 January 2014 and 30 January 2014 that AZC’s compliance with the requests made in the Letter were voluntary. There is no evidence from Mr Yasin about whether he believed the requests made in the Letter were mandatory, or, assuming he believed the requests were mandatory, whether he would not have caused AZC to provide the information to the FWO that AZC did provide in response to the Letter had he been informed that compliance was voluntary. I am not prepared to find, on the evidence before me, that Mr Yasin believed that compliance with the requests made in the Letter was not voluntary or that, if he believed it was voluntary, he would not have caused AZC to respond to the Letter in the manner that it did. I am also not satisfied that, assuming Mr Yasin believed compliance was not voluntary, Mr Yasin would not have telephoned Mr Bodkin on 20 January 2014 and 30 January 2014 had Mr Yasin been told compliance was voluntary.

Discretion

1. The FWO submitted that, if I were to conclude that the contentious evidence, or some of it, was improperly obtained, I should, in the exercise of the discretion conferred by s.138(1) of the Evidence Act, admit the evidence. Given the findings I have made, I do not propose to consider the question of discretion.

Conclusion disposition

1. The respondents’ objections to the contentious evidence fail. I propose, therefore, to reject the respondents’ objections to the extent they are based on s.138 of the Evidence Act.

2. The respondents filed an application in a case in which they claimed a number of declarations. At the hearing, counsel for the respondents confirmed that the application in a case was filed in aid of the objections the respondents proposed to make to the contentious evidence under s.138 of the Evidence Act. Because I have rejected those objections, it follows that the application in a case must be dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 3 February 2017