Fair Work Ombudsman v Hu

Case [2017] FCA 1081

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Hu [2017] FCA 1081

File number: QUD 708 of 2016
Judge: RANGIAH J
Date of judgment: 14 September 2017
Catchwords: EVIDENCE – privilege against exposure to penalty – whether privilege waived by admissions and positive allegations in defence – whether privilege may be waived by lawyer acting with the ostensible authority of person entitled to claim privilege – whether privilege waived by contract
Legislation:

Evidence Act 1995 (Cth) s 187

Fair Work Act 2009 (Cth) ss 45 and 793

Cases cited:

Australian Competition and Consumer Commission v FFE Building Services Pty Ltd (2003) 130 FCR 37

Anderson v Australian Securities and Investments Commission [2012] 2 Qd R 401

Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475

Birrell v Australian National Airlines Commission (1984) 1 FCR 526

Bridal Fashions Pty Ltd v Comptroller-General of Customs (1995) 17 WAR 499

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442

Dunstan v Orr (2008) 217 FCR 559

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

Gemmell v Le Roi Homestyle CookiesPty Ltd (in liq) (2004) 46 VR 583

Goldberg v Ng (1995) 185 CLR 83

Hadgkiss v Construction, Forestry, Mining and Energy Union [2005] FCA 1453

JL Holdings Pty Ltd v State of Queensland (1996) 71 FCR 545

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union(No 2) [2011] FCA 368

McDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612

Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511

Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372

One Tel (in liq) v Rich (2005) 53 ACSR 623

Refrigerated Express Lines (A/Asia)Pty Ltd v Australian Meat and Live-Stock Corporation (1979) 42 FLR 204

Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185

Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521

Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96

Date of hearing: 1 September 2017
Registry: Queensland
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 40
Counsel for the Applicant: Mr JL Bourke QC with Ms C Hartigan
Solicitor for the Applicant: Office of the Fair Work Ombudsman
Counsel for the First Respondent: The First Respondent did not appear
Counsel for the Second and Third Respondents: Mr RG Bain QC with Mr PD Tucker
Solicitor for the Respondents: Hopgoodganim Lawyers
Counsel for the Intervener: The Intervener did not appear

ORDERS

QUD 708 of 2016
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

TAO HU

First Respondent

MARLAND MUSHROOMS QLD PTY LTD

Second Respondent

TROY MARLAND

Third Respondent

NATIONAL FARMERS' FEDERATION LIMITED

Intervener

JUDGE:

RANGIAH J

DATE OF ORDER:

14 SEPTEMBER…

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AGLC
Fair Work Ombudsman v Hu [2017] FCA 1081
Case
[2017] FCA 1081
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman sought to enforce a compliance order against three respondents, including the company, its managing director, and the director's wife. The dispute centred on whether the privilege against self-incrimination could be waived by admissions and positive allegations made in a defence, and whether a lawyer could waive the privilege if acting with ostensible authority. Additionally, the court had to determine if the privilege could be waived by contract. The matter was heard in the Federal Court of Australia.

The key legal issues included whether the privilege against self-incrimination could be waived by admissions and positive allegations in a defence, whether a lawyer could waive the privilege if acting with ostensible authority, and whether the privilege could be waived by contract. The court had to examine the circumstances under which privilege could be lost and the effect of admissions and positive allegations in a defence on the privilege.

The court found that the privilege against self-incrimination could be waived by admissions and positive allegations in a defence, and that a lawyer could waive the privilege if acting with ostensible authority. The court also held that the privilege could be waived by contract, as the directors had explicitly agreed to waive the privilege in the contracts in question. Consequently, the court vacated certain orders and excused the second and third respondents from filing and serving any affidavits or written submissions until the close of the applicant's case.

The court vacated Orders 5 and 9 of the Order made on 3 July 2017 and excused the second and third respondents from filing and serving any affidavits, any amended defence, and any written submissions until the close of the applicant’s case at the hearing on the question of liability to be conducted from 9 to 11 October 2017. These orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Orders 5 and 9 of the Order made on 3 July 2017 be vacated.

2. The second and third respondents are excused from filing and serving any affidavits, any amended defence, and any written submissions until the close of the applicant’s case at the hearing on the question of liability to be conducted from 9 to 11 October 2017.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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