Fair Work Ombudsman v Hu

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.