Fair Work Ombudsman v Di Troia
[2024] FedCFamC2G 159
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Di Troia [2024] FedCFamC2G 159
File number(s): ADG 94 of 2023 Judgment of: JUDGE BROWN Date of judgment: 28 February 2024 Catchwords: INDUSTRIAL LAW – FAIR WORK – penalty hearing - failure to comply with compliance notice – respondent has failed to defend proceedings with due diligence –liability determined – underpayment of one employee – vulnerable employee – first time offender – lack of corporation by the respondent – calculation of penalty – matters to be considered. Legislation: Fair Work Act 2009 (Cth) ss 457, 545(1), 545 (2), 546, 716(2), 716(5), 745(1). Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849
Fair Work Ombudsman v Darna Pty Ltd & Anor [2015] FCCA 709
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272
Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801
Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Veen v R (No 2) (1988) 164 CLR 465, 472
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 16 February 2024 Place: Adelaide Counsel for the Applicant: Ms Williams Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the Respondent: The Respondent did not appear ORDERS
ADG 94 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MICHELE DI TROIA
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT DECLARES THAT:
A.The Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (“the Act”), by failing to comply with the Compliance Notice dated 14 April 2022.
THE COURT ORDERS THAT:
1.Pursuant to section 545(1) of the Act, the Respondent take the steps that were required by the Compliance Notice within 28 days of this order by:
(a)Paying to Mr Sam Kavanagh the remaining sum of THREE THOUSAND ONE HUNDRED AND ELEVEN DOLLARS AND FIFTY-ONE CENTS ($3,111.51).
2.Pursuant to section 546(1) of the Act pay a pecuniary penalty of THREE THOUSAND SIX HUNDRED DOLLARS ($3,600.00) to the Commonwealth for the contraventions pleaded in paragraphs 1(a) above, within 28 days of the date of this order.
3.The Applicant have liberty to apply on 7 days’ notice in the event that any of the preceding 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 BROWN:
INTRODUCTION
The Fair Work Ombudsman[1] commenced these proceedings against Michele Di Troia,[2] on 1 May 2023, pursuant to the provisions of the Fair Work Act 2009 (Cth).[3] In general terms, the FWO seeks the following:
·Leave to enter default judgment against the respondent on the basis that he has neither defended the application brought against him with due diligence nor complied with orders of the Court requiring him to file documents;
·The Court make a finding that Mr Di Troia has contravened the provisions of section 716(5) of the FWA by failing to comply with a Compliance Notice that he pay wages due to one of his employees, Mr Sam Kavanagh;
·Thereafter, the Court impose a penalty for that contravention pursuant to the civil remedy provisions of the Act.
[1] Herein referred to as “the FWO” or “the Ombudsman”.
[2] Hereinafter referred to as “Mr Di Troia” or “the respondent”.
[3] Hereinafter referred to as “the FWA” or “the Act”.
BACKGROUND
The FWO has statutory responsibility for ensuring compliance, by employers for their relevant employees, with the industrial safety net, created by the Commonwealth Government, pursuant to the provisions of the FWA.
Primarily, this objective is achieved through the enforcement of the system of minimum terms and conditions specified in the Modern Award System, created by the Act.[4] This proscribes rates of pay and the entitlement of employees to a variety of conditions, such as leave, notice and so on and so forth.
[4] See FWA at section 3.
The FWO is authorised to appoint Fair Work Inspectors to carry out its statutory obligations under the Act. In the current matter, such a Fair Work Inspector, Ms Vanessa Murray, received a complaint from Mr Kavanagh that he had been underpaid, whilst an employee of Mr Di Troia.
Mr Di Troia, at relevant times, was a sole trader carrying on an automotive repair and maintenance business called Skipper Automotive. It had premises in Kent Town in the inner-city area of Adelaide.
Mr Di Troia employed Mr Kavanagh, first between 22 March and 4 April 2021, on a casual basis and secondly, between 5 April and 25 May 2021 as a full time first year adult apprentice in his business. Mr Kavanagh worked as a mechanic and his employment was covered by the Vehicle Repair, Services and Retail Award 2020.[5]
[5] Hereinafter referred to as “the Award”.
In August of 2021, after he had left the employ of Mr Di Troia, Mr Kavanagh enquired of the FWO as to whether he had been appropriately paid whilst in the employ of Skipper Automotive and a Fair Work Inspector was subsequently appointed to investigate the matter.
Ultimately, this investigation led to the relevant Fair Work Inspector concluding as follows:
·Mr Kavanagh had not been paid the minimum wage due to casual employment;
·He had not been paid the minimum wage due to a full time first year apprentice; and
·He had not been paid the amount due to him for accrued untaken annual leave on the termination of his employment.
In these circumstances, Ms Murray (nee Camilleri) issued a Compliance Notice to Mr Di Troia pursuant to the provisions of section 716(2) of the FWA on 14 April 2022. The current proceedings are essentially directed towards determining what penalty should be imposed on Mr Di Troia for failing to pay the full amount of the monies due to Mr Kavanagh.
In general terms, the relevant Compliance Notice required the respondent to undertake a number of steps in order to discharge his obligations under the Award particularly to calculate and then pay the amounts due to Mr Kavanagh pursuant to the Award.
The Compliance Notice was issued on 14 April 2022 and required compliance on or before 19 May 2022. The amount due to Mr Kavanagh has been calculated by the FWO to be $3,732.46 together with a sum of $359.05 being referable to Mr Kavanagh’s superannuation entitlements.
It is the FWO’s position that Mr Di Troia has not complied with his obligations under the Compliance Notice and therefore has contravened the provisions of section 716(5) of the Act, which have necessitated these proceedings.
The Ombudsman further contends that it has given ample notice of these proceedings to Mr Di Troia, who has properly been served with them, but has elected not to take part in these proceedings.
The maximum penalty, prescribed by the Act, for a breach of section 716(5) of the Act, is $6,660.00. The FWO submits the appropriate penalty range, for the offending in this case, should fall somewhere between 60 to 70% of the maximum penalty – that is between $3,996.00 to $4,662.00.
DEFAULT JUDGMENT
On 1 May 2023, the FWO filed a statement of claim particularising how it was alleged Mr Di Troia had contravened section 716(5) of the Act by failing to comply with the Compliance Notice issued by the relevant Fair Work Inspector.
The statement of claim was personally served on Mr Di Troia, at his business premises on 5 May 2023. The application was made returnable on 18 July 2023. Mr Di Troia duly appeared at court on 18 July 2023. He was directed to file a response and/or defence by 25 August 2023 and the case was directed to return to court on 4 October 2023.
Mr Di Troia has not filed the response required of him but did file a notice of address for service. He has not subsequently taken any active part in the proceedings and, in a formal sense, his attitude to the proceedings is not known.
However, following the instigation of the proceedings, he negotiated a payment plan, with the relevant Fair Work Inspector to pay Mr Kavanagh what had been calculated to be his wage entitlements. However, the evidence of the relevant Fair Work Inspector is that Mr Di Troia did not honour this payment plan, apart from an initial payment of $980 made in July of 2023.
Following this payment, his attendance at court on the first directions hearing and the filing of a notice of address for service, it is the contention of Ms Williams, counsel for the FWO, that Mr Di Troia has failed to take any necessary steps in the proceedings, despite having been formally advised of these requirements. I accept this submission.
It is on this basis that the applicant seeks default judgment pursuant to the provisions of Division 13.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) 2021.[6]
[6] Hereinafter referred to as “the Rules”.
Rule 13.04 delineates when a person is in default, which includes when a document has not been filed or served; non-compliance with an order of the court in the relevant proceedings; and the proceedings have not been defended with due diligence. If such a default is established, pursuant to the provisions of Rule 13.05(2) the court may give judgment or make any other order against the relevant respondent concerned.
In the present matter, I am satisfied that Mr Di Troia is in default and therefore the court can enter judgment against him as sought by the applicant. I am also satisfied that Mr Di Troia has been put on notice that the FWO will be seeking a pecuniary penalty against him.
MATTERS TO BE CONSIDERED
In Fair Work Ombudsman v Matcraft Pty Ltd,[7] Judge Kendall explained the legislative intention of a Compliance Notice, as an alternative to litigation, in the following terms:
As explained in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), the purpose of s 716 of the Act is to provide an alternative to litigation. Section 716 is an informal mechanism whereby the applicant can identify potential contraventions of the Act and seek rectification without an employer having to admit liability.
One of the objects of the Act is to provide accessible and effective procedures to resolve grievances and disputes and provide effective compliance mechanisms. Section 716 encapsulates this objective by allowing employees to make a request for assistance which the applicant can then resolve through the use of s 716.[8]
[7] Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272.
[8] Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272 at [34]-[35] (Kendall J).
In Fair Work Ombudsman v Trek North Tours & Anor (No 2),[9] Judge Jarrett explained the underlying rationale of the Compliance Notice system in the following terms:
The provision of notices to employers serves a number of purposes, not the least of which is to give the employer an opportunity to deal with the contravention that is being alleged, or, in the case of notices to produce, to provide information which would demonstrate that no contravention of the Act has occurred. The regime set out under s.716 and s.717 of the Act relating to compliance notices represents a regime which would avoid proceedings coming to a court at all if an employer took the steps set out in those sections.[10]
[9] Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801.
[10] Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801 at [22].
Accordingly in general terms, the successful implementation of the process envisaged when a Compliance Notice is issued represents a win/win for all concerned in the following terms:
·An underpaid employee gets his/her entitlements expeditiously and as calculated pursuant to all the applicable provisions of the relevant Award;
·An employer is educated about his/her responsibilities under the relevant industrial system without being penalised or forced to incur the costs and indignities of litigation or indeed to be identified as an errant employer; and
·The public purse is spared the cost of bringing expensive proceedings to court.
The failure of the respondent to comply with the relevant notice served upon him engages the provisions of section 716(5) of the Act, which renders it a civil remedy provision if a person fails to comply with a Compliance Notice.
THE LEGAL PRINCIPLES APPLICABLE TO PENALTY HEARINGS
Pursuant to the provisions of section 546 of the FWA, upon finding that the respondent has contravened the Compliance Notice provisions of the Act, the court is authorised to impose a pecuniary penalty. It may also, pursuant to the provisions of section 545(2) make an order awarding compensation for any loss that a person has suffered because of the contravention. In this case, it seeks an order for the payment of the monies due to Mr Kavanagh along with interest thereon [see section 457].
It has been said that the calculation of a civil remedy penalty is a process of intuitive synthesis. Gray J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (“Australian Ophthalmic Supplies”) said as follows:
[What is required] is to determine an appropriate level of penalty for each contravention, as if it were a separate offence, and then look at the aggregate of those penalties in the light of the overall conduct of the [offender], to form a view as to whether that aggregate [is] out of proportion to that overall conduct.[11]
[11] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [23] (Gray J).
Regardless of these considerations, the fundamental task, for the court, is to determine, from all the factual circumstances arising, the gravity or seriousness of the offending, which it is called upon to penalise. Again, there is general agreement between the parties as to the considerations relevant to this task, which has been delineated in a number of decisions of both this Court and the Federal Court.[12] The considerations are as follows:
[12] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Kelly v Fitzpatrick [2007] FCA 1080 at [14]. (Tracey J); Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [23] (Reeves J).
·The nature and extent of the conduct which led to the breaches;
·The circumstances in which the conduct took place;
·The nature and extent of any loss or damage sustained as a result of the breaches;
·Whether there has been similar previous conduct by the respondent;
·Whether the breaches were properly distinct or arose out of the one course of conduct;
·The size of the business enterprise involved;
·Whether or not the breaches were deliberate;
·Whether senior management was involved in the breaches;
·Whether the party committing the breaches has exhibited contrition;
·Whether the party committing the breaches has taken corrective action;
·Whether the party committing the breaches has cooperated with the enforcement authorities;
·The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
·The need for specific and general deterrence.
The court needs to be careful not to apply a formulaic approach to the imposition of penalties or attempt to extrapolate the penalties imposed in one case to the circumstances of another. Each case involving the imposition of a civil penalty warrants an idiosyncratic approach and a careful analysis of all relevant circumstances. As was stated in Australian Ophthalmic Supplies:
Penalties are not a matter of precedent. The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case.[13]
[13] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCA 8 at [12] (Graham J).
Clearly the checklist, as enumerated above, is useful. However, it is not to be regarded as an exhaustive list of factors to be considered. The ultimate control on any sentence is that it must be proportionate to the offence committed. A court is not permitted to impose a sentence greater than is warranted by the objective circumstances of the offending.[14]
[14] Veen v R (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson, and Toohey JJ).
However, in the context of the significant interest the public has in ensuring that employees are paid their proper entitlements and are accorded the protection of the industrial safety net envisaged by the legislature, the court cannot lose sight of the importance of deterrence, both in a specific and general sense.
Penalties have to be fixed at a meaningful level, not set at a level at which their imposition, on an errant employer, can be seen as an acceptable cost of doing business for the employer. In short, penalties must hurt so that others who are considering cutting corners, so far as the payment and protection of their employees are concerned, will be deterred from doing so.
In the recent case of Australian Building and Construction Commissioner v Pattinson[15] the High Court discussed the inherent problems likely to arise when principles of retributive sentencing, relevant to the criminal law, are applied in civil penalty proceedings.
[15] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.
In this context, the High Court rejected the principle of proportionality being applied to the calculation of penalties in the civil sphere. Essentially, the High Court indicated the principle that the maximum penalty should be reserved only for the worst or most egregious examples of the applicable offence did not apply in civil penalty proceedings.
In addition, the High Court indicated that the primacy of deterrence is the objective of any civil penalty regime. As such a sentencing court, in a civil penalty matter, is required to impose a penalty which is proportionate in the sense that it strikes a reasonable balance between deterrence and what is described as oppressive severity.[16]
[16] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [41].
In this context, the essential purpose of Compliance Notices must be considered. As indicated above, prompt compliance with their terms can result in a win/win situation for all concerned -the industrial regulator and the public purse is not put to the expense of a hearing; an underpaid employee can be reimbursed promptly; and an errant employer is spared the bother and embarrassment of public prosecution, and is given an opportunity to learn about and rectify past failings for the good of all concerned.
DISCUSSION
Nature, circumstances, and deliberateness of the contravening conduct
I am satisfied that Mr Kavanagh was underpaid. He, at relevant times, was a 22-year-old apprentice. Necessarily, he relied on Mr Di Troia to provide him work in order to complete his qualifications. In this sense, I accept that he must be regarded as a vulnerable employee.
Although, in objective terms, the amount outstanding to Mr Kavanagh is not a huge sum, I accept that from his perspective it is significant indeed. Up to this stage, Mr Di Troia has only made a payment of $980, in respect of the monies owed to Mr Kavanagh.
Accordingly, at the present time, after almost two and a half years after he ceased employment with Mr Di Troia, and approximately 17 months after the issue of the Compliance Notice, wages due to Mr Kavanagh remain outstanding.
I am satisfied that the FWO has made significant attempts to assist Mr Di Troia both before and after the issue of the Compliance Notice to assist him to make the required payments to Mr Kavanagh and so avoid these proceedings.
I am also satisfied that there has been a failure to comply with the minimum standards provided by the Award which was applicable to Mr Di Troia’s employment of Mr Kavanagh. As such, it is a serious matter that Mr Di Troia has not complied with the relevant notice and Mr Kavanagh’s wages remain outstanding.
Clearly, in my view, the failure of Mr Di Troia to take part in these proceedings or to abide by his agreement to make good Mr Kavanagh’s wages, demonstrates a lack of contrition on Mr Di Troia’s part.
In addition, as a consequence of his failure to take part in these proceedings, I have no knowledge as to the size of his enterprise or its current financial viability. I accept, however, that his business is to be characterised as a small business. However, in general terms, the size of the business concerned should not greatly influence matters relating to deterrents.
I accept the submissions of Ms Williams that the FWO has made several attempts to assist Mr Di Troia to comply with the notice issued to him. Initially these bore fruit, albeit after the proceedings had been commenced, with Mr Di Troia agreeing to a payment plan and paying the first instalment of $980.
This payment must be a factor taken in Mr Di Troia’s favour. However, there is scant other evidence of any contrition on Mr Di Troia’s part or any indication that he has learnt a salutary lesson as a result of these proceedings against him. As such, his conduct demonstrates a disregard for both his obligations, as an employer, and the authority of the FWO, as the industrial regulator.
Deterrence
Deterrence has two aspects – general deterrence directed towards the community as a whole, and specific deterrence directed towards the individual concerned whose conduct is to be sanctioned. As the High Court has recently indicated, issues of deterrence must be accorded primacy in the imposition of any civil penalty.
In Fair Work Ombudsman v Darna Pty Ltd,[17] Judge Hartnett said as follows in respect of the importance of the Compliance Notice process in the industrial regulatory system in this county:
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provides that compliance notices were designed to be another option to deal with non-compliance instead of pursuing court proceedings. It was to be a less costly and less time consuming procedure. Section 716 of the FW Act allows a person to whom a compliance notice is issued an opportunity to rectify an under payment without being subject to civil remedy provisions. The First Respondent’s failure to comply with the Compliance Notice issued has, in these proceedings, caused the Applicant and the Court to spend time and public funds in dealing with civil remedy proceedings which would not have been necessary had compliance occurred.[18]
[17] Fair Work Ombudsman v Darna Pty Ltd & Anor [2015] FCCA 709.
[18] Fair Work Ombudsman v Darna Pty Ltd & Anor [2015] FCCA 709 at [11].
As previously indicated, the purpose of a Compliance Notice is to provide a mutually beneficial outcome for all of the parties concerned. An employee gets what is due to him or her promptly; an employer avoids costly legal proceedings and the societal stigma of having a conviction recorded; and the industrial regulator avoids the expense of having to commence litigation to ensure compliance with the industrial safety net. As a consequence, the general public benefits from the Compliance Notice system.
In the current matter, the Compliance Notice process has not achieved any of these desirable outcomes. This must be a significant consideration both in terms of general deterrence and specific deterrence to Mr Di Troia personally.
To be able to enforce the terms of modern awards, Fair Work Inspectors must be able to exercise their compliance powers effectively through investigation and then rectification. When there has been a concerted non-compliance with a Compliance Notice issued by a Fair Work Inspector, the court needs to indicate that such non-compliance will be regarded as a serious matter by reference to the quantum of any penalty imposed.
I accept that the failure to comply with a Compliance Notice has the potential to undermine the entire purpose of the relevant statutory regime. If an employer does not accept the contents of any Compliance Notice served upon it, the regime provides formal mechanisms of review.[19]
[19] Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849 at [63] (Kendall J).
In Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2), Marshall J said as follows:
It is important to ensure that the protection afforded by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless respected.[20]
[20] Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29] (Marshall J).
In imposing a penalty to reflect general deterrence, the Court must impose fines that cannot be seen by others as the cost of doing business.[21]The role of general deterrence in fixing appropriate penalty is demonstrated by what Lander J said in Ponzio v B & P Caelli Constructions Pty Ltd,[22] namely:
In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend…. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty (citations omitted).
[21] Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290 at [27] (Flick J).
[22] Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [93] (Lander J).
In my view, it is important that employers recognise that Compliance Notices are significant and are thus encouraged to manage their business so that errors, including innocent ones, can be rectified quickly and cheaply for the benefit of both business and employee. These considerations are applicable to both large and small employers.
The evidence provided by the FWO indicates that Mr Di Troia continues to hold the business name Skipper Automotive. However, what are the implications of this for the employment of other individuals, either on a casual basis or as apprentices, is not clear to me. However, in the event that Mr Di Troia is or does intend to employ others in the future, the penalty must be set at a sufficiently high level to avoid future breaches of the Act in the future.
In my view, the most significant aggravating factor is the fact that Mr Kavanagh, despite complaining to the FWO and action being taken against Mr Di Troia, remains out of pocket so far as his wages are concerned. In my view, this calls for the imposition of a significant penalty.
THE CALCULATION OF PENALTIES
As previously indicated the maximum penalty available for both offences is one of $6,660.00. The FWO asserts that the seriousness of the offending warrants the imposition of a penalty in the mid to high range of between 60 and 70% of this figure. It is the submission of Ms Williams that there should be no discount on the basis of the partial payment, given the amount of the wages remaining outstanding to Mr Kavanagh.
In addition, it is submitted that despite the fact that Mr Di Troia is a first-time offender, given his overall lack of cooperation in the matter, this should also not result in any discount of the penalty to be imposed. In all the circumstances of the case, I consider a penalty of $3,600.00 to be an appropriate one.
I will make the declarations sought by the FWO and require the respondent to reimburse Mr Kavanagh the sums due to him and make the other orders and declarations as sought by the FWO.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 28 February 2024
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