Fair Work Ombudsman v Al Hilfi (No 2) - [2013] FCA 16

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Al Hilfi (No 2) [2013] FCA 16

Citation: Fair Work Ombudsman v Al Hilfi (No 2) [2013] FCA 16

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: 17 January 2013

Catchwords:
PRACTICE AND PROCEDURE – opposition by fourth respondent to application by Fair Work Ombudsman for leave to file amended pleadings – where Fair Work Ombudsman seeks orders and declarations against fourth respondent based on its involvement in contravention of Fair Work Act 2009 (Cth) – whether the fourth respondent has fair notice of the case – whether pleading is evasive or ambiguous – whether pleading is likely to cause prejudice, embarrassment or delay in the proceeding – whether the Fair Work Ombudsman pleaded the necessary particulars to give the fourth respondent fair notice of the case to be made against it.

Held: The application for leave to file the amended pleadings is allowed subject to three matters outlined in paragraphs 19, 26 and 28 of the reasons.

Legislation: Fair Work Act 2009 (Cth) ss 12, 550, 793
Trade Practices Act 1974 (Cth) s 84
Workplace Relations Act 1996 (Cth) s 349
Federal Court Rules 2011 (Cth) Rules 16.21, 16.41, 16.45

Cases cited:
Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392, cited
Australian Competition and Consumer Commission v Radio Rentals Ltd and Another (2005) 146 FCR 292, cited
Construction, Forestry, Mining and Energy Union and Others v Clarke (2008) 170 FCR 574, cited
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166, cited
Hamilton v Whitehead (1988) 166 CLR 121, cited
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another (2000) 100 FCR 530, cited
K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312, cited
Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563, cited
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, cited
Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133, cited
Re Chisum Services Pty Ltd v The Companies Act 1961 (1982) 7 ACLR 641, cited
Tesco Supermarkets Ltd v Nattrass [1972] AC 153, cited
The Bell Group Ltd (In Liquidation) and Others v Westpac Banking Corporation and Others (9) (2008) 70 ACSR 1, cited
Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 61 FLR 52; 44 ALR 391, cited
Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 89 ACSR 1, cited

LexisNexis Butterworths Ford’s Principles of Corporations Law vol 1

Date of hearing: 14 December 2012

Place: Adelaide

Division:

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: [2013] FCA 16
Decision Date: 17 January 2013

CaseChat Overview and Summary

In the case of Fair Work Ombudsman v Al Hilfi (No 2), the Fair Work Ombudsman sought leave to amend pleadings against the fourth respondent on the basis of their involvement in contraventions of the Fair Work Act 2009 (Cth). The dispute involved the fourth respondent's opposition to the application, questioning whether they had fair notice of the case, whether the pleadings were evasive or ambiguous, and if they were likely to cause prejudice or delay in the proceedings. Additionally, the court examined whether the Fair Work Ombudsman had provided sufficient particulars to the fourth respondent to adequately inform them of the case against them.

The court deliberated on the fairness and adequacy of the notice provided to the fourth respondent by the Fair Work Ombudsman, and the potential for prejudice, embarrassment, or delay caused by the proposed amendments. It also considered whether the pleadings were clear enough to prevent any confusion or misdirection in the proceedings. Ultimately, the court allowed the application for leave to file the amended pleadings, subject to certain conditions outlined in the judgment.

The court ruled that the fourth respondent had fair notice of the case and that the pleadings were not evasive or ambiguous. The amendments were not likely to cause undue prejudice, embarrassment, or delay, and the Fair Work Ombudsman had pleaded the necessary particulars to give the fourth respondent fair notice of the case against them. However, the application was granted subject to certain conditions specified in the reasons for judgment.

The final orders of the court were that the applicant was to bring in minutes of order reflecting the conclusions in the reasons. The entry of orders was to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011. The court also rejected the Fair Work Ombudsman's contentions regarding costs, stating that there was nothing unreasonable in Coles' wish to present its argument and that the challenges to the pleadings were fairly arguable.

Orders

Orders of the court

1. The applicant bring in minutes of order reflecting the conclusions 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

The FW Ombudsman applied for his costs of the hearing on 14 December 2012 on the basis that Coles should have been in a position to put its argument on 29 November 2012. Furthermore, he submits that Coles’ repeated challenges to his pleadings are an abuse of the process of the Court. I reject both these contentions. There was nothing unreasonable in Coles wishing to have its counsel present an argument on the proposed Second Further Amended Statement of Claim which introduced for the first time a plea of s 793 of the FW Act. The challenges to the pleadings by Coles have for the most part been fairly arguable.CONCLUSION Subject to the three matters I have identified (paragraphs 19, 26, 28), I would grant the FW Ombudsman leave to amend in terms of the proposed Second Further Amended Statement of Claim. I would not make any order for costs in relation to Coles’ interlocutory application or the hearings on 29 November 2012 and 14 December 2012 respectively.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Fair Work Ombudsman v Al Hilfi (No 2) [2013] FCA 16
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:		17 January 2013
Catchwords:		PRACTICE AND PROCEDURE – opposition by fourth respondent to application by Fair Work Ombudsman for leave to file amended pleadings – where Fair Work Ombudsman seeks orders and declarations against fourth respondent based on its involvement in contravention of Fair Work Act 2009 (Cth) – whether the fourth respondent has fair notice of the case – whether pleading is evasive or ambiguous – whether pleading is likely to cause prejudice, embarrassment or delay in the proceeding – whether the Fair Work Ombudsman pleaded the necessary particulars to give the fourth respondent fair notice of the case to be made against it. Held: The application for leave to file the amended pleadings is allowed subject to three matters outlined in paragraphs 19, 26 and 28 of the reasons.
Legislation:		Fair Work Act 2009 (Cth) ss 12, 550, 793 Trade Practices Act 1974 (Cth) s 84 Workplace Relations Act 1996 (Cth) s 349 Federal Court Rules 2011 (Cth) Rules 16.21, 16.41, 16.45
Cases cited:		Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392, cited Australian Competition and Consumer Commission v Radio Rentals Ltd and Another (2005) 146 FCR 292, cited Construction, Forestry, Mining and Energy Union and Others v Clarke (2008) 170 FCR 574, cited Fair Work Ombudsman v Al Hilfi [2012] FCA 1166, cited Hamilton v Whitehead (1988) 166 CLR 121, cited Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another (2000) 100 FCR 530, cited K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312, cited Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563, cited Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, cited Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133, cited Re Chisum Services Pty Ltd v The Companies Act 1961 (1982) 7 ACLR 641, cited Tesco Supermarkets Ltd v Nattrass [1972] AC 153, cited The Bell Group Ltd (In Liquidation) and Others v Westpac Banking Corporation and Others (9) (2008) 70 ACSR 1, cited Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 61 FLR 52; 44 ALR 391, cited Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 89 ACSR 1, cited LexisNexis Butterworths Ford’s Principles of Corporations Law vol 1
Date of hearing:	14 December 2012
Place:	Adelaide
Division: