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Fair Work Ombudsman v Al Hilfi

Fair Work Ombudsman v Al Hilfi

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FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166

Citation: Fair Work Ombudsman v Al Hilfi [2012] FCA 1166

Parties:
FAIR WORK OMBUDSMAN v AHMAD HAMID MOHAMMED AL HILFI, NIDAL ALBAROUKI, CLENCY FERRIERE and COLES SUPERMARKETS AUSTRALIA PTY LTD ABN 45 004 189 708

FAIR WORK OMBUDSMAN v AYAM RAHMAH AL BASRY, NIDAL ALBAROUKI, CLENCY FERRIERE and COLES SUPERMARKETS AUSTRALIA PTY LTD ABN 45 004 189 708

File numbers: SAD 27 of 2012
SAD 109 of 2012

Judge: BESANKO J

Date of judgment: 26 October 2012

Catchwords:
PRACTICE AND PROCEDURE – application by fourth respondent for summary judgment pursuant to s 31A of Federal Court of Australia Act 1976 (Cth) – where Ombudsman seeks orders and declarations against fourth respondent pursuant to ss 45, 546 and 550 of Fair Work Act 2009 (Cth) – whether pleaded causes of action have reasonable prospect of success – whether essential elements of causes of action adequately pleaded.

PRACTICE AND PROCEDURE – statement of claim – strike out application pursuant to Rule 26.01 of Federal Court Rules 2011 (Cth) – whether pleading contains embarrassing conflation of allegations – whether pleading with respect to paragraphs 550(2)(a) and (b) of Fair Work Act 2009 (Cth) discloses reasonable cause of action in absence of plea of positive act by fourth respondent.

Held: The application for summary judgment is allowed insofar as it relates to the fourth respondent’s alleged involvement in contraventions of ss 536(1) and 535(1) of the Fair Work Act. The application is otherwise dismissed. The application for striking out pleadings is allowed with respect to the pleading of paragraphs 550(2)(a) and (b) of the Fair Work Act.

Legislation: Fair Work Act 2009 (Cth) ss 45, 46, 47, 536, 550, 681, 682
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) Rule 16.21

Cases cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, cited
Australian Building and Construction Commissioner v Abbott (No 4) (2011) 211 IR 267, cited
Australian Competition and Consumer Commission v SIP Australia Pty Limited [2002] FCA 824, cited
Brambles Holdings Ltd v Carey (1976) 15 SASR 270, cited
Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263, cited
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401, cited
Giorgianni v The Queen (1985) 156 CLR 473, cited

J C Decaux Pty Ltd v Adshel Street Furniture Pty Ltd and Anor (2000) 178 ALR 339, cited

Keller v LED Technologies Pty Ltd (2010) 185 FCR 449, cited
Kennedy v Sykes (1992) 24 ATR 546, cited
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, cited
Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201, cited
Spencer v The Commonwealth of Australia (2010) 241 CLR 118, cited
The Bell Group Ltd (In Liquidation) & Ors v Westpac Banking Corporation and…

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: [2012] FCA 1166
Decision Date: 26 October 2012

CaseChat Overview and Summary

The Fair Work Ombudsman initiated proceedings against Al Hilfi and others, seeking orders and declarations for alleged contraventions of the Fair Work Act 2009. The case involved complex allegations of wage theft and underpayment of employees, with the fourth respondent, Al Hilfi, facing specific claims. The dispute was heard in the Federal Court, which was tasked with determining the validity of the claims against Al Hilfi and the procedural issues surrounding the case.

The legal issues before the court included whether the pleaded causes of action against Al Hilfi had a reasonable prospect of success and whether the essential elements of those causes of action were adequately pleaded. Additionally, the court had to decide on an application by Al Hilfi for summary judgment and an application to strike out certain parts of the statement of claim. The court was required to assess the merits of the claims and the adequacy of the pleadings in light of the statutory provisions and procedural rules.

In its decision, the court allowed the application for summary judgment in part, dismissing it with respect to certain claims related to ss 536(1) and 535(1) of the Fair Work Act. The court found that the pleaded causes of action did not have a reasonable prospect of success in those instances. However, the application for striking out certain pleadings was allowed, specifically regarding the claims under paragraphs 550(2)(a) and (b) of the Fair Work Act. The court ruled that these parts of the pleadings did not disclose a reasonable cause of action without a plea of a positive act by Al Hilfi.

The court also noted errors in the cross-referencing of paragraphs in the pleadings against Coles, for which the Ombudsman agreed to make necessary corrections. The decision concluded that in the absence of agreement between the parties on the appropriate orders, Coles should prepare minutes of order reflecting the court's conclusions. The court scheduled a hearing to address any further orders that might be required.

Orders

Orders of the court

1. In the absence of agreement between the parties as to the appropriate orders, the fourth respondent bring in minutes of order reflecting the conclusions expressed in these reasons.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There are some errors in the cross referencing of paragraphs in the pleas against Coles and the Ombudsman has agreed to remedy those matters.CONCLUSION In the absence of agreement between the parties as to the appropriate orders in light of these reasons, Coles should bring in minutes of order reflecting the conclusions in these reasons and I will hear the parties as to any other orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Parties:		FAIR WORK OMBUDSMAN v AHMAD HAMID MOHAMMED AL HILFI, NIDAL ALBAROUKI, CLENCY FERRIERE and COLES SUPERMARKETS AUSTRALIA PTY LTD ABN 45 004 189 708 FAIR WORK OMBUDSMAN v AYAM RAHMAH AL BASRY, NIDAL ALBAROUKI, CLENCY FERRIERE and COLES SUPERMARKETS AUSTRALIA PTY LTD ABN 45 004 189 708
File numbers:		SAD 27 of 2012 SAD 109 of 2012
Judge:		BESANKO J
Date of judgment:		26 October 2012
Catchwords:		PRACTICE AND PROCEDURE – application by fourth respondent for summary judgment pursuant to s 31A of Federal Court of Australia Act 1976 (Cth) – where Ombudsman seeks orders and declarations against fourth respondent pursuant to ss 45, 546 and 550 of Fair Work Act 2009 (Cth) – whether pleaded causes of action have reasonable prospect of success – whether essential elements of causes of action adequately pleaded. PRACTICE AND PROCEDURE – statement of claim – strike out application pursuant to Rule 26.01 of Federal Court Rules 2011 (Cth) – whether pleading contains embarrassing conflation of allegations – whether pleading with respect to paragraphs 550(2)(a) and (b) of Fair Work Act 2009 (Cth) discloses reasonable cause of action in absence of plea of positive act by fourth respondent. Held: The application for summary judgment is allowed insofar as it relates to the fourth respondent’s alleged involvement in contraventions of ss 536(1) and 535(1) of the Fair Work Act. The application is otherwise dismissed. The application for striking out pleadings is allowed with respect to the pleading of paragraphs 550(2)(a) and (b) of the Fair Work Act.
Legislation:		Fair Work Act 2009 (Cth) ss 45, 46, 47, 536, 550, 681, 682 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) Rule 16.21
Cases cited:		Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, cited Australian Building and Construction Commissioner v Abbott (No 4) (2011) 211 IR 267, cited Australian Competition and Consumer Commission v SIP Australia Pty Limited [2002] FCA 824, cited Brambles Holdings Ltd v Carey (1976) 15 SASR 270, cited Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263, cited Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401, cited Giorgianni v The Queen (1985) 156 CLR 473, cited J C Decaux Pty Ltd v Adshel Street Furniture Pty Ltd and Anor (2000) 178 ALR 339, cited Keller v LED Technologies Pty Ltd (2010) 185 FCR 449, cited Kennedy v Sykes (1992) 24 ATR 546, cited Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, cited Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201, cited Spencer v The Commonwealth of Australia (2010) 241 CLR 118, cited The Bell Group Ltd (In Liquidation) & Ors v Westpac Banking Corporation and…