Fair Work Ombudsman v Carers Portland Inc (No 2)
[2024] FedCFamC2G 72
•5 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Carers Portland Inc (No 2) [2024] FedCFamC2G 72
File number: MLG 1429 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 5 February 2024 Catchwords: INDUSTRIAL LAW – Failure to comply with Compliance Notice – pecuniary penalties imposed – whether Court should make order that Respondents take steps set out in the Compliance Notice – no utility in making the order – order refused. Legislation: Fair Work Act 2009 (Cth) div 2 pt 4-1, ss 545, 545(1), 546(1), 546(5), 547(2), 550(2), 716(4A), 716(5). Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Fair Work Ombudsman v Carers Portland Inc [2023] FedCFamC2G 620
Kelly v Fitzpatrick [2007] FCA 1080
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submissions: 21 November 2023 Date of hearing: 16 November 2023 Place: Melbourne Counsel for the Applicant: Ms Pase Solicitor for the Applicant: Maddocks Lawyers Advocate for the Respondents: In Person Solicitor for the Respondents: None ORDERS
MLG 1429 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: THE CARERS PORTLAND INC (ABN 81 590 467 287)
First Respondent
THAI HAI DUONG LUONG
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
5 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (‘Act’), the First Respondent pay a pecuniary penalty of $24,975 to the Commonwealth with respect to the contravention declared in paragraph 1 of the Orders of 20 July 2023, within 28 days of the date of this Order.
2.Pursuant to section 546(1) of the Act, the Second Respondent pay a pecuniary penalty of $4,950 to the Commonwealth with respect to the contravention declared in paragraph 2 of the Orders of 20 July 2023, within 28 days of the date of this Order.
3.The Applicant have liberty to apply on seven days notice in the event that the above orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
On 20 July 2023, I found that the First Respondent had contravened section 716(5) of the Fair Work Act 2009 (Cth) (‘Act’) by failing to comply with a Compliance Notice given to it by Fair Work Inspector Cox (‘Inspector Cox’) on 3 December 2021. I also found that the Second Respondent was involved within the meaning of section 550(2) of the Act in the contravention by the First Respondent of section 716(5) of the Act. I made Declarations that reflected these matters: see Fair Work Ombudsman v Carers Portland Inc [2023] FedCFamC2G 620 (‘Liability Decision’).
These reasons concern two matters. First, whether a pecuniary penalty should be imposed on each of the Respondents for their respective contraventions of the Act. Second, whether orders should be made requiring the Respondents to take certain steps said to be required by the Compliance Notice.
BACKGROUND
The background to this matter, as well as various factual findings, are set out in the Liability Decision. I will not repeat those findings here. These reasons should be read in conjunction with the Liability Decision.
THE MATERIAL BEFORE THE COURT
The Applicant relied on the Application and Statement of Claim filed 27 June 2022, an affidavit of Inspector Cox affirmed 24 March 2023 and a further affidavit of Inspector Cox filed 15 November 2023, it’s written outline of submissions filed 24 March 2023 and 15 November 2023, the orders of 20 July 2023, and an affidavit of Ms Ding sworn 19 October 2023.
The state of the Respondents material, and the way the matter unfolded before me requires a brief explanation:
(a)The Respondents filed an affidavit of the Second Respondent on 8 November 2022. I took the content of that affidavit into account in the Liability Decision, and have had regard to it in this matter;
(b)On 20 July 2023, I made, among other things, orders for the filing of material for the hearing on penalty. Those orders relevantly required the Applicant to file any further evidence by 19 October 2023, and the Respondents to file any further evidence by 2 November 2023; and
(c)On 31 July 2023, the Second Respondent filed a further affidavit with the Court. No further affidavit was received by the Court after this time.
The hearing of this matter was listed to commence at 10.00 am on 16 November 2023. The Respondents did not appear at that time. At approximately 10.17 am, I opened Court. The Respondents were formally called outside Court, and did not appear. The matter then proceeded with me hearing submissions from the Applicant’s Counsel, Ms Pase. During the course of those submissions, at around 10.35 am, the Second Respondent appeared. Notwithstanding this late appearance which occurred towards the end of the Applicant’s submissions, I attempted to summarise the proceedings for the Respondents. I outlined to the Respondents the matters they needed to address me on, and I invited them to make submissions, which they did.
At the commencement of her submissions, the Second Respondent handed to the Court an affidavit that she sought to rely on. That affidavit was a photocopy, not an original. The pages in the document were loose, and did not appear to be in order. The affidavit appeared to bear the Court stamp. The box on page one of the form marked for Court use indicated the affidavit was filed on 8 May 2023 in respect of a Court date to occur on 16 November 2023. It was apparent to me that given the sequence of events, including the date of the Liability Decision, and the listing of this penalty hearing before me, no one in the Registry would have known on 8 May 2023 that the penalty hearing was to be listed on 16 November 2023. Questioning of the Second Respondent revealed she had in fact completed that part of the affidavit form reserved for the Registry. Given the information I had before me, I indicated to the Second Respondent I would not take that affidavit into account.
On return to my Chambers, I compared the affidavit the Second Respondent had handed to me in Court to the affidavit she had filed on 31 July 2023. The documents are the same. Given the affidavit of 31 July 2023 was filed after the Liability Decision, and within the time frame contemplated by my orders of 20 July 2023, I will take that document into account. Having read the document, however, it contains information that is largely irrelevant to the issues the Court is required to determine.
Following the conclusion of the hearing, my Chambers received, on 20 November 2023 at 1:06 pm, an email from the Applicant’s lawyers setting out brief further submissions that sought to clarify (consistent with their obligations as a model litigant) the effect of certain submissions that had been put during the oral hearing. In light of the receipt of that email, I invited the Respondents to reply to anything contained within the email from the Applicant’s lawyers. I received a response from the Respondents on 21 November 2023 at 2:47 pm. I have taken the emails referred to in this paragraph into account.
RELEVANT PRINCIPLES RELATING TO PENALTY
In Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (‘Pattinson’), the High Court stated at [9] that ‘under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act’. The High Court also stated at [42] that penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’.
In Kelly v Fitzpatrick [2007] FCA 1080 at [14], the Federal Court set out a list of non-exhaustive factors relevant to the imposition of penalties under the Act. The High Court in Pattinson at [18] referred to these factors. I will have regard to these factors, but note that they do not constitute a rigid catalogue of matters for attention: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91].
I intend to approach this matter consistently with the authorities referred to above.
ASSESSMENT
Maximum Penalty
The maximum penalty the Court is able to impose on the First Respondent at the time of the contravention is $33,300. The maximum penalty the Court is able to impose on the Second Respondent for a single contravention of section 716(5) of the Act at the relevant time is $6,600.
Deterrence
Specific deterrence is directed at the party who has contravened the provision. It is concerned with ensuring a contravening party is not prepared to engage in the contravening conduct in the future. General deterrence is concerned with ensuring, among other things, that the penalty is likely to act as a deterrent in preventing similar contraventions by like-minded persons.
There is a need for specific deterrence in this case. The Respondents did not, and have not, complied with the Compliance Notice. The affidavit of Ms Ding of 19 October 2023 shows that the First Respondent continues to be registered, and the Second Respondent continues to be the representative of the First Respondent. There is therefore the prospect, and it is reasonable to infer that, the Respondents may engage in business in the future, and be responsible for the engagement of employees in the future.
As to general deterrence, the Compliance Notice framework provides a mechanism for efficient and cost-effective identification and rectification of potential breaches of the Act. It provides an alternative to litigation, by enabling the Applicant to issue a Compliance Notice if it has a reasonable belief that relevant laws are being contravened, and for a recipient of the notice to consider it, and then decide whether to comply with it or challenge it. The effect of this framework will be hindered if recipients of Compliance Notices perceive that there is no meaningful consequence for a failure to comply with a Compliance Notice. Given these matters, there is a need for general deterrence in this case.
Given the above matters, the level of penalty needs to be set to take both specific and general deterrence into account.
Nature, extent and circumstances of the contraventions
The nature of the contravention under consideration is a breach of section 716(5) of the Act. That is, a failure by the Respondents to comply with the terms of a Compliance Notice. I have noted earlier in these reasons, the nature of the Compliance Notice framework within the Act, and the significance of it.
In paragraph [19] of the Liability Decision, I summarised the evidence of Inspector Cox concerning the issuing of the Compliance Notice and the various steps taken by the Applicant to secure compliance with the terms of the Compliance Notice. Despite the extensive efforts by officers of the Applicant to secure compliance with the Compliance Notice, the Respondents remained in breach of the Compliance Notice.
During the course of the hearing on liability, the Respondents offered various reasons as to why they had not complied with the Compliance Notice. I dealt with those matters at paragraphs [25] – [32] of the Liability Decision, and did not accept the evidence of the Second Respondent.
Given the effectively unrepresented status of the Respondents, I have reviewed all of their material to ascertain whether any other reason is advanced for the failure to comply with the Compliance Notice. A review of the material discloses assertions by the Respondents to the effect that Covid-19 was taking place, lockdowns were in effect, and the business had been shut down (see the Letter of Concern attached to the Affidavit of the Second Respondent of 8 November 2022). I accept as a general proposition that the Compliance Notice was issued at a time when fears about Covid-19 were heightened. The assertions by the Second Respondent, however, about the effects of Covid-19 do not take matters further. The evidence of the Second Respondent amounts to little more than generic assertion. No detailed evidence has been provided. There is no evidence that deals with how whatever might have occurred, during Covid-19 or lockdowns imposed by Government, prevented the Respondents from complying with the Compliance Notice. I therefore do not accept that the Respondents could not comply with the Compliance Notice because of Covid-19, any lockdowns, or their associated effects.
At one point, prior to the proceedings being issued, the Second Respondent indicated she would pay the relevant employee (Ms Tran) a one-off payment of $328.00. The evidence indicates that that amount was never received by Ms Tran.
The Compliance Notice remains not complied with.
Given all the circumstances referred to in the preceding paragraphs, I am satisfied that the Respondents contravention of section 716(5) of the Act is deliberate.
In written submissions before the Court, the Applicant contended that Ms Tran was a vulnerable employee because of her culturally and linguistically diverse background, and because she suffered from mental health issues. I decline to take these matters into account. The evidence to support them is insufficient, and not in admissible form.
Corrective action and contrition
The First Respondent is the owner of a registered business name, being HCM Café Fresh Q Lunch. Its principal place of business is in Mulgrave. The Second Respondent is listed as the individual representative of the First Respondent. There is no evidence before me to indicate whether the First Respondent is currently conducting a business. The fact that it remains registered, and that there is a registered business name, suggests that there is some prospect that the First Respondent and the Second Respondent may commence business operations in the future.
The Respondents have not adduced any evidence showing that they have undertaken any action to correct the contravention. There is no evidence of, for example, the Respondents committing to putting in place certain procedures to ensure there is no repeat of what occurred.
The Respondents have not apologised for the contravention. They have not shown any remorse or contrition. They continue to assert they have done nothing wrong.
Further to the above matters, the Respondents have not cooperated with the Applicant in order to truncate the proceedings or minimise the issues in dispute. The Respondents never filed any Response or Defence. In not doing so, they breached the orders of the Court. They never filed any outline of submissions. Their affidavits contained material that was largely tangential or irrelevant to the issues in dispute. Their failures in these respects left the Applicant in the dark as to the case it had to meet. Despite my best attempts to provide guidance to the Respondents on the matters they needed to address, their oral submissions were also largely tangential or irrelevant. They were late to Court on more than one occasion, displaying a disrespect for both the Court’s time and process, and for the Applicant’s time. They singularly failed to engage in any meaningful way with the crux of the contravention and the issues in dispute.
All of the matters above weigh in favour of a penalty at the higher end of the scale.
The amount of loss and damage
The Applicant submitted that ‘Compliance Notices provide an efficient way in which to rectify underpayments to employees… the Ombudsman [was] seeking to secure the First Respondent’s compliance with minimum wages and entitlements set out in the Award… It is important not only that minimum employment standards be complied with, but that an effective mechanism exists (such as the mechanism of a Compliance Notice) for efficient enforcement of minimum employment entitlements’.
I accept, and have said repeatedly in other matters in this Court, that it is important that minimum conditions of employment be complied with. I accept, as stated in the Liability Decision at [52]-[53], that the Compliance Notice framework may work to produce an efficient rectification of underpayments of wages and entitlements in certain circumstances.
I do not accept, for all of the reasons referred to in the Liability Decision, that Ms Tran has suffered loss. The Applicant has not proved that Ms Tran was underpaid her entitlements in the sum set out by the Applicant. The last sentence of paragraph [29] of the Liability Decision is not a finding that Ms Tran suffered loss. It is merely a rejection of the Second Respondent’s evidence to that effect. As the context of the Liability Decision makes clear, the Applicant has not proved Ms Tran was underpaid. I therefore decline to take into account any submission that Ms Tran was not paid entitlements due to her under the Award.
I accept that the failure to comply with the Compliance Notice has occasioned a public loss. The Applicant has had to commence proceedings and expend time and public funds in pursuing the Respondents in Court. Further, the manner in which the Respondents have conducted the case, and which I have set out above (notwithstanding their unrepresented status), has in my view increased the costs. I take these matters into account.
Size and financial circumstances of the Respondents
I have noted above that the First Respondent remains registered, that it is the holder of a business name, and that the Second Respondent is the representative of the First Respondent. The Second Respondent has claimed in oral submissions, and also in her affidavit material, that the business conducted by the First Respondent, in which Ms Tran was employed, has been closed. While I am prepared to accept that fact, it does little to advance matters. The Respondents have not produced any evidence as to whether there are other current business operations of the First Respondent, the size of any business operations conducted by the First Respondent, or the financial circumstances of either the First or Second Respondent. I am therefore unable to take the size and financial circumstances of the Respondents into account in determining the level of any penalty.
Similar previous conduct
There is no evidence before me that the Respondents have engaged in similar previous conduct. I therefore infer that this is a first offence for the Respondents, and will take that matter into account.
Compliance with minimum standards
I have referred earlier in these reasons, as well as in the Liability Decision, to the role that Compliance Notices play in ensuring minimum terms and conditions of employment are adhered to, and I take that into account.
THE PECUNIARY PENALTIES TO BE IMPOSED
The Applicant seeks that the Court impose penalties in the range of 70% to 80% of the maximum penalty applicable on each Respondent.
There are many aspects of this proceeding that warrant the imposition of a penalty at the higher end of the scale. They include, in particular, the need for specific and general deterrence, the deliberate and continuing nature of the contraventions which the Respondents have singularly failed to engage with, the absence of any contrition or corrective action by the Respondents, the non-cooperative manner in which they engaged in these proceedings, and the public loss occasioned by their conduct. They have adduced no evidence to suggest that any penalty imposed should be reduced, for example, because of the size of the First Respondent or because of the financial circumstances of the Respondents. The only matter that weighs in favour of a penalty at the lower end of the scale is that this is a first offence.
I would ordinarily be inclined to impose a penalty at a lower level than that sought by the Applicant given that this is a first offence. I accept the Applicant’s submissions, however, that the failure of the Respondents to engage in the proceeding, their approach to the proceeding, their conduct of the proceeding, their failure to cooperate, and their absolute failure to understand the seriousness of the offence, warrants a penalty at the higher end of the range.
For all of these reasons, I will impose a penalty of 75% of the maximum penalty on each of the First Respondent and the Second Respondent.
I have considered whether there is any role for the application of the totality principle in this matter. I note that this is a case in which a single contravention has been proved against each of the First Respondent and the Second Respondent. The Respondents have also not led any evidence which will enable me to make any finding that any penalty would be crushing or oppressive. For these reasons, I will not discount the penalty.
Accordingly, the Court imposes a penalty of $24,975 on the First Respondent, and $4,950 on the Second Respondent.
THE OTHER ORDERS
In the course of determining liability, I was asked (as an alternative) to make three orders to the effect that the Respondents take steps to comply with the Compliance Notice: see paragraph [58] of the Liability Decision. I expressed reservations about making the orders sought at [59] of the Liability Decision, but as I had not heard from the Applicant about them, I gave the Applicant an opportunity to address me on them: see [60] of the Liability Decision.
Before me, the Applicant sought orders in slightly different terms to those sought at the hearing on liability. The orders now sought by the Applicant (‘proposed amended final order’) are as follows:
The Court orders that:
1. Pursuant to section 545(1) of the FW Act, the First Respondent take the steps required by the Compliance Notice within 28 days from the date of this order, by:
(a)calculating and paying to Binh Tran any outstanding amounts as set out in the Compliance Notice; and
(b)preparing and producing to the Applicant a schedule outlining any outstanding amounts to Ms Tran and providing proof that these amounts have been paid.
2. Pursuant to section 545(1) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice within 28 days from the date of this order, by:
(a)calculating and paying into Ms Tran’s nominated superannuation fund any additional superannuation contributions required to be paid on the any outstanding entitlements referred to in paragraph 1(a) above (as required by clause 21.2 of the Award); and
(b)preparing and producing to the Applicant, a schedule outlining its calculations of the outstanding entitlements and any additional superannuation contributions required to be paid to Ms Tran and providing proof that the any outstanding entitlements and additional superannuation contributions were rectified as set out in paragraphs 1(a) and 2(a) above.
3.Pursuant to section 547(2) of the FW Act, the First Respondent pay to Ms Tran interest on the any amounts owed to her pursuant to paragraph 1(a) above within 28 days of the date of this order.
The Applicant submitted that I should make the orders above because:
(a)The orders require no more than the Respondents compliance with the steps that are set out in the Compliance Notice;
(b)The orders are ‘preventative, remedial or compensatory’, and within the broad scope permitted by section 545 of the Act;
(c)The orders have a causal connection to the contravention that has been determined by the Court in that they require the Respondents to take the steps set out in the Compliance Notice; and
(d)The orders are consistent with the framework of the Act. In written submissions, the Applicant said the Act seeks to ensure guaranteed and enforceable minimum standards of employment including by way of:
(i)a legislative object of “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the [National Employment Standards (NES)], modern awards and national minimum wage orders” (section 3(b) of the FW Act);
(ii) the NES being “minimum standards that apply to the employment of employees which cannot be displaced” (section 61(1) of the FW Act);
(iii)modern awards providing “a fair and relevant minimum safety net of terms and conditions” (section 134(1) of the FW Act);
(iv)the Applicant’s legislated functions including “to commence proceedings in a court […] to enforce this Act” (section 682(1)(d) of the FW Act); and
(v)compliance notices themselves being enforceable through litigation when they are not complied with;
(footnotes omitted)
…
During the course of the hearing, I questioned Ms Pase about the utility of making the orders sought in circumstances where the Compliance Notice had not been complied with, the Applicant had commenced these proceedings, and a penalty would likely be imposed for the contravention. Ms Pase submitted that the Court should make the orders sought because, inter alia, the Applicant is prevented from prosecuting the Respondents for breaches of the Award by having commenced these proceedings (section 716(4A) of the Act), there is no other means by which Ms Tran can obtain justice, and it is implicit that Ms Tran is owed amounts (albeit unquantified amounts not based on Award contraventions).
It is necessary to deal with each of the matters raised by the Applicant in turn.
I accept that the proposed amended final order no longer provides for the Respondents to pay Ms Tran a specific monetary amount. To that extent, the proposed amended final order deals with the concern I expressed at paragraph [48] of the Liability Decision. The terms of the proposed amended final order are, however, still apt to cause confusion, and on one view go beyond the content of the Compliance Notice. There are not ‘any outstanding amounts as set out in the Compliance Notice’ (emphasis added). True it is that the Compliance Notice requires the Respondents, inter alia, to ‘make a payment to the Employee’ after taking various steps set out in the notice. As I pointed out in the Liability Decision, however, whether any amount is actually payable will not be known until the preceding steps set out in the Compliance Notice are taken. The term of the proposed amended final order does not adequately take account of this matter.
The more significant issue, however, is whether there is any utility in making the proposed amended final order, particularly in the circumstances of this case.
Ms Pase submitted that the proposed amended final order is remedial in nature. There was not detailed argument before me about this point, however, I am prepared to accept for present purposes that the order is remedial in nature because it seeks to require the Respondents to take the steps set out in the Compliance Notice.
Ms Pase submitted there is a causal connection between the relief sought (in the form of the proposed amended final order) and the contravention in the sense that the proposed amended final order seeks (in broad terms) that the Respondents take the steps required by the Compliance Notice. Again, while the issue was not fully argued before me, I am prepared for present purposes to accept this proposition.
I also accept that the Court is not prevented from making an order under section 545 of the Act in addition to imposing a pecuniary penalty under section 546 of the Act – see section 546(5) of the Act.
While I am prepared to accept the matters above, they do not fully address whether there is any utility in making the proposed amended final order.
As outlined above, during the hearing, Ms Pase submitted that there was utility in making the proposed amended final order because the Applicant, having commenced these proceedings, has no other way to obtain compensation for Ms Tran for any underpayments of wages having regard to the terms of section 716(4A) of the Act. Following the hearing, however, the Applicant clarified that in respect of the underlying contraventions the subject of the Compliance Notice, ‘section 716(4A)(b) does not prevent the commencement of proceedings under Division 2 of Part 4-1 of the FW Act’. Having considered the terms of section 716(4A), that concession was appropriately made. The position, then, is that either the Applicant or Ms Tran can commence proceedings to recover any underpayments. The proposed amended orders are not necessary to achieve that outcome.
During the course of my exchange with Ms Pase as to the utility of making any order, she also submitted that without making the proposed amended final order, ‘it effectively makes the compliance notice futile once it’s been issued’. It was also submitted that I should make the orders in respect of the purpose of the scheme and the good that the scheme is set up to do. I do not accept these submissions. The Compliance Notice is not futile once it is issued. The utility of the Compliance Notice scheme is not affected if I do not make the proposed amended final order. Certain persons issued with a Compliance Notice may choose to comply, in which case any issue of failing to comply with the Compliance Notice falls away. The scheme, such as it is, has worked. Other recipients of a Compliance Notice may choose not to comply with the Compliance Notice. Those that choose not to, like the Respondents in this case, may be subject to a Court imposed penalty. In either case though, an outcome is reached. The Compliance Notice is not futile once it’s been issued. Nor is the Compliance Notice scheme compromised.
No other submission was advanced by the Applicant as to why I should make the proposed amended final order, or why it is necessary to make such orders.
Having regard to the above, I decline to make the proposed amended final order sought by the Applicant. The Applicant has not advanced any persuasive reason as to why it is necessary to make the orders. There is no utility to making the orders. The Respondents in this case repeatedly failed to comply with the Compliance Notice. They have been found to have contravened section 716(5) of the Act. The Court has made Declarations of contravention, and imposed a penalty at the higher end of the range on both Respondents for that conduct. It is unnecessary to make the proposed amended final order, and it is not appropriate to do so in the circumstances of this case.
OTHER MATTERS
Throughout this proceeding, in various pieces of written correspondence to the Court, the Second Respondent referred to herself as a lawyer. Some examples of where she did so include:
(a)In an email sent from the Second Respondent to chambers on 9 May 2023, her email signature included ‘Commonwealth public prosecutions Lawyer (IMMI&Employment Laws)’;
(b)In an email sent from the Second Respondent to chambers on 2 June 2023, her email signature included ‘Commonwealth public prosecution Leader in Gov Lawyer association’;
(c)In an email sent from the Second Respondent to chambers on 21 November 2023, the display name for her email address was ‘The carers portland Inc Amy Luong Gov lawyer’; and
(d)In emails sent from the Second Respondent to chambers on 19 October 2023, 8 and 16 November 2023, and 27 November 2023 her email signature included ‘solicitor coded’.
I asked the Second Respondent during the hearing on penalty whether she was a lawyer. She refused to answer.
In light of the above, as well as an assessment of the quality of the written material filed by the Second Respondent, I harbour a concern that the Second Respondent has held herself out to be a lawyer when she is not. I will be bringing the matter to the attention of the relevant regulator being the Victorian Legal Services Board & Commissioner.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 5 February 2024
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