Fair Work Ombudsman v Golden Vision Food and Beverage Services Pty Ltd

[2015] FCCA 3614

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GOLDEN VISION FOOD AND BEVERAGE SERVICES PTY LTD & ANOR [2015] FCCA 3614

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to withdraw admission – no evidence to support application – discretionary matters against the grant of leave – leave refused.

Legislation:

Fair Work Act 2009, s.712(3)

Cases cited:

Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455

Applicant: FAIR WORK OMBUDSMAN

First Respondent: GOLDEN VISION FOOD AND BEVERAGE SERVICES PTY LTD

Second Respondent: JIA NING WANG

File Number: BRG 562 of 2015

Judgment of: Judge Jarrett

Hearing date: 11 December 2015

Date of Last Submission: 11 December 2015

Delivered at: Brisbane

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Garner

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the First and Second Respondents: Mr Mackie

Solicitors for the First and Second Respondents: Mullins Lawyers

ORDERS

1. The oral application to withdraw the admission by the second respondent in paragraph 104(k) of the Statement of Agreed Facts filed on 26 October, 2015 is refused.

2. The application be adjourned to a date to be fixed for judgment in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 562 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

GOLDEN VISION FOOD AND BEVERAGE SERVICES PTY LTD

First Respondent

And

JIA NING WANG

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application to withdraw an admission of the commission of a contravention of a civil penalty provision of the Fair Work Act 2009 (Cth). The admission that is sought to be withdrawn appears in paragraph 104(k) of the Statement of Agreed Facts that has been filed by these parties in October of this year.

2. I was not addressed on the principles that I might apply in determining whether to commit the respondents to withdraw the admission.  The withdrawal of admissions is not however something which is uncommon to courts.  There are various ways by which a respondent or indeed an applicant might make admissions.  From the point of view of a respondent admissions might be made in a defence, they might be made either expressly or by a failure to respond to a notice to admit facts.  There are other ways admissions might be made. 

3. The rules that relate to notices to admit facts provide that there are deemed admissions that operate if a party does not reply to a notice to admit facts in a timely way and there is some law that has developed in respect of an application to withdraw an admission that has been made either expressly in response to a notice to admit facts or by operation of the relevant rules of court.  The analogy that might be drawn between an application to withdraw an admission that has been made in consequence of either a response to, or failure to respond to, a notice to admit facts and the present case is, it seems to me, sufficiently close that the principles that might apply there should apply here. 

4. The leading authority, at least the last time I checked, was Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455, a decision of the then Chief Justice of the Supreme Court here in Queensland. That case concerned the withdrawal of deemed admissions that had come to pass under the Uniform Civil Procedure Rules 1989 (Qld) because a defendant had not responded to a notice to admit facts.  In the course of delivering his judgment in the Court of Appeal De Jersey CJ said:

   [19] Asked to exercise the discretion under rule 189(3), a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at a trial. Here none of those matters was so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application.

   [20]  There is no principle that admissions made, or deemed to have been made, may always be withdrawn “for the asking”, subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.

5. The second member of that Court, McPherson JA said this:

   [27] Before permitting the admission to be withdrawn, the first step to be determined here was whether there was a genuine dispute about the defendant's liability in this action. Drawing on the analogy provided by another branch of the law, it is not enough for that purpose simply to assert that a dispute exists: see Re Brighton Club & Norfolk Hotel Co Ltd (1865) 35 Beav 204, 205; (1865) 55 ER 873, 874. Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn. That is not shown by a saying simply that there has been a change of solicitors, or that it is possible to see that, before the admission was made, the issue of liability was an open question. Here the defendant has not condescended to swear to the circumstances in which the admission came to be made, or to show that it occurred by inadvertence, mistake or in some other way that might now justify its withdrawal.

6. Finally, Williams JA, the third member of the Court said this:

   [31] Counsel for the appellant referred to the well-known passage in the judgment of Bowen L J in Cropper v Smith (1884) 26 Ch D 700 at 710 where he said that the court ought to correct errors or mistakes in procedure made by the parties so that the matter was determined in accordance with the rights of the parties. That statement, though made over one hundred years ago, is still relevant, and it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial.  But, for example, where the detriment or prejudice is self-induced, the party may not be entitled to relief. So much is clear from the unreported decision of the Victorian Full Court in Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd, referred to at length and applied by Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods Ltd (1972) 26 NSWLR 738 at 744. Rogers CJ considered that the statement of Lord Denning MR in H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 703 that an admission made by counsel in the course of proceedings can be withdrawn unless the circumstances are such as to give rise to an estoppel were “words … uttered in another age and in other circumstances” (746). Such an observation can even more forcibly be made and applied in the light of the UCPR.

7. The principle then seems to be that before an admission can be withdrawn some basis for its withdrawal must be demonstrated in the evidence.  There is no evidence before me about how the admission came to be made, the circumstances in which it was made, why it was made, why it was mistakenly made; there is simply no evidence that bears on any of those things.  I have been taken to an affidavit filed in September by the second respondent which suggests that the facts necessary to prove the contravention of the relevant civil penalty provision (s.712(3)), simply do not exist, but that only goes part of the way.  As I have already indicated, much more needs to be demonstrated on this application.  It is not. 

8. In any event leave to withdraw an admission is discretionary and there are a number of matters here, which in my view, operate against the exercise of the discretion in favour of the respondents.  The first is the way in which this application generally has been conducted.  There was a denial of the relevant contravention in the defence.  There was then admissions made in respect of all of them.  The matter was to proceed in a certain way and then the Court was informed that the respondents would be withdrawing the admissions and the matter would proceed to a liability hearing rather than a penalty hearing and then having been given the opportunity to apply to have the admissions withdrawn, having been given an appropriate opportunity to provide sworn testimony that perhaps address the matters to which I have just referred, the respondents:

   a)did nothing; and

   b)informed the Court that the matter would proceed by way of a penalty hearing.

9. More than that the parties then agreed on a statement of facts and filed it in Court.  Now, after counsel for the applicant has commenced this application there is an oral application unsupported by any sworn testimony for leave to withdraw the admission. 

10. All of those matters operate against permitting leave to withdraw the admission even if the matters to which I have earlier referred in these reasons were the subject of evidence. 

11. The application is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 December, 2015.

Date: 8 July 2016