Fair Work Ombudsman v Jenni International Pty Ltd

[2023] FedCFamC2G 1138

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Jenni International Pty Ltd [2023] FedCFamC2G 1138

File number(s):

MLG 2715 of 2017

Judgment of:

JUDGE J YOUNG

Date of judgment:

4 December 2023

Catchwords:

INDUSTRIAL LAW – application in a proceeding –where second respondent has failed to pay compensation and penalties following a declaration that second respondent had contravened Fair Work Act 2009 (Cth) – where applicant seeks orders for second respondent to attend before the Court to be examined – where applicant seeks orders for proceedings to be transferred to Brisbane Registry.

Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 8.01, 13.06(1)(e), 25.11.

Federal Circuit and Family Court of Australia Act 2021 ss 212, 213

Federal Circuit Court Rules 2001 (Cth) ee 16.02, 16.03.

Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 67, 67.02.

Cases cited:

Allesch v Maunz (2000) 203 CLR 172

Fair Work Ombudsman v Jenni International Pty Ltd & Anor (No. 2) [2020] FCCA 2924

Fair Work Ombudsman v Jenni International Pty Ltd & Anor [2019] FCCA 2971

Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704

Moss v Contracoin Pty Ltd [2023] FCA 125

National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155

Picos v Healthengine Pty Ltd & Anor [2014] FCCA 640

Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726

Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213

Division:

Division 2 General Federal Law

Number of paragraphs:

72

Date of hearing:

6 October 2023

Place:

Melbourne

Counsel for the Applicant:

Mr Marckwald

Solicitor for the Applicant

Fair Work Ombudsman

Counsel for the First Respondent:

Did not participate

Counsel for the Second Respondent

Did not participate

ORDERS

MLG 2715 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

JENNI INTERNATIONAL PTY LTD

First Respondent

JORDAN SHAN

Second Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	4 DECEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to Rule 8.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (FCFCOA Rules), the proceedings be transferred to the Brisbane registry.

2.Pursuant to Rule 25.11 of the FCFCOA Rules and Rule 67.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (SC Rules), the Second Respondent is ordered to attend before the Court on a date to be fixed by the Court, to be orally examined by Counsel for the Applicant on the material questions, being:

(a)whether any and, if so, what debts are owing to the Second Respondent;

(b)whether the Second Respondent has any and, if so, what other property or means of satisfying orders 2 and 3 made by the Court in this proceeding on 18 October 2019 and order 2 made by the Court in this proceeding on 30 October 2020 (Payment Orders) and his liability to pay interest pursuant to section 212 of the Federal Circuit and Family Court of Australia Act 2021 (Post-judgment Interest); and

(c)any questions concerning or in aid of the enforcement or satisfaction of the Payment Orders and liability for Post-judgment Interest.

3.Pursuant to Rule 25.11 of the FCFCOA Rules and Rule 67.02 of the SC Rules, the Second Respondent is ordered, on a date to be fixed by the Court, being two weeks prior to the date for oral examination, to produce to the Applicant, or alternatively to the Court, any document or thing in the possession, custody or power of the Second Respondent relating to the material questions, including but not limited to the documents listed in the Annexure to this Order.

4.Costs reserved.

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 J YOUNG

INTRODUCTION

1. On 18 October 2019, the Federal Circuit Court of Australia made orders declaring that the second respondent (Mr Shan) had been involved in contraventions of the Fair Work Act 2009 (Cth) (FW Act) relating to the underpayment of employees. Orders were also made requiring Mr Shan to pay $13,997.28 (Compensation Debt) to the applicant, the Fair Work Ombudsman (FWO) within 21 days. Further Orders were made on 30 October 2020 for Mr Shan to pay pecuniary penalties to the Commonwealth in the sum of $31,000 (Penalty Debt).

2. The FWO asserts the entirety of the Penalty Debt and $9,397.28 of the Compensation Debt remains unpaid and that despite numerous attempts to contact Mr Shan between 2019 and 2023 Mr Shan has failed to provide information in relation to his financial circumstances.

3. The FWO has applied to the Court for orders requiring Mr Shan to attend before the Court to be examined in relation to what means he has to satisfy the Compensation Debt and Penalty Debt (together, Judgment Debt) and for the proceedings to be transferred to the Brisbane registry.

4. I am satisfied that it is appropriate to make the majority of the orders sought by the FWO. My reasons are set out below.

   APPLICATION AND EVIDENCE BEFORE THE COURT

5. The FWO filed the Application on 24 August 2023 seeking orders pursuant to:

   (1)Rule 8.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCOA Rules);

   (2)Rules 25.11 of the FCFCOA Rules and Rule 67.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Supreme Court Rules);

   (3)Section 212 of the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act); and

   (4)Section 570(2) of the FW Act.

6. The Application came before me for hearing on 6 October 2023, with Mr Marckwald of Counsel appearing for the FWO, and there being no appearance by Mr Shan. The hearing took place via Microsoft Teams videoconference.

7. The FWO relied on the following:

   (1)Application in a proceeding filed 1 September 2023;

   (2)affidavit of Ms Winterburn filed 1 September 2023;

   (3)Outline of Submissions filed 28 September 2023;

   (4)affidavit of Ms Douaihi filed 5 October 2023; and

   (5)further oral submissions made at hearing.

8. At the hearing, the FWO provided a minute of orders sought. The FWO no longer sought orders pursuant to the FCFCOA Act or FW Act, as set out at (3) and (4) of paragraph [4] above.

   Mr Shan’s non-participation and proceeding in his absence

9. Mr Shan did not file a Response to the Application or any other material. As noted, Mr Shan did not attend the hearing. The matter proceeded in the respondent’s absence in default of his appearance: r 13.06(1)(e) of the FCFCOA Rules.

10. On 5 October 2023, the FWO filed an affidavit of service detailing the service of the FWO on Mr Shan. On 28 September 2023 the FWO served Mr Shan by ordinary prepaid post in an express post envelope to his most recently known residential address in Queensland (Mr Shan’s current residence is addressed further in this decision at paragraph [57]-[59]). On the same date, the FWO further served Mr Shan by way of email to his last three known email addresses, including the email address provided by Mr Shan in his most recently filed notice of address for service, being that which was filed by Mr Shan on 14 May 2019.

11. At the hearing, Mr Shan was telephoned on his last known mobile number at 9.59am and at 10.02am, however no answer was received. An email was sent by my chambers on 11 September 2023 and on 5 October 2023 to five of Mr Shan’s known email addresses, advising that the hearing would take place via Microsoft Teams and providing the hearing link.

12. Accordingly, I am satisfied that Mr Shan was on notice of the Application and the hearing, and has been afforded an opportunity to be heard. A court cannot force a party to take advantage of that opportunity: Allesch v Maunz (2000) 203 CLR 172, [38]-[40]. In those circumstances, I considered it appropriate for the matter to proceed in Mr Shan’s absence.

    ORDERS FOR EXAMINATION AND PRODUCTION

    Background

13. As noted above, Orders were made on 18 October 2019 requiring Mr Shan (jointly and severally with the First Respondent) to pay the Compensation Debt to the FWO within 21 days: Fair Work Ombudsman v Jenni International Pty Ltd & Anor [2019] FCCA 2971. Further Orders were made on 30 October 2020 requiring Mr Shan to pay the Penalty Debt to the Commonwealth: Fair Work Ombudsman v Jenni International Pty Ltd & Anor (No. 2) [2020] FCCA 2924.

14. The Compensation Debt was due and payable by 8 November 2019. Pursuant to rr 16.02 and 16.03 of the then Federal Circuit Court Rules 2001 the Penalty Debt was due and payable immediately upon entry of the orders on 30 October 2020.

15. It was the FWO’s unchallenged evidence that as at 24 August 2023, Mr Shan has paid the FWO a total of $4,600 in relation to the Compensation Debt. The amount of $10,494.30 in respect to the Compensation Debt remains outstanding, plus post-judgment interest.

16. It was the FWO’s further unchallenged evidence that as at 24 August 2023, Mr Shan had not made any payment to the FWO in relation to the Penalty Debt. As such, the amount of $31,000 in respect to the Penalty Debt remains outstanding, plus post-judgment interest.

17. Ms Winterburn’s affidavit filed on 1 September 2023 annexes an email from the financial branch of the FWO confirming that the FWO’s records show that the sum of $41,494.30 remains outstanding and due to the FWO by Mr Shan.

18. The FWO submits that the Compensation Orders and the Penalty Orders have not been stayed by order of the court or by an instalment order.

19. Accordingly, the Court accepts that there remains a combined outstanding Judgment Debt of $41,494.30 plus interest.

    Legal principles

20. Section 213 of the FCFCOA Act relevantly provides as follows:

    Enforcement of judgment

    (2)A person in whose favour a judgment of the Federal Circuit and Family Court of Australia (Division 2) is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

21. Accordingly, s 213(2) of the FCFCOA Act picks up the law of the relevant State in respect of the enforcement orders (subject to any relevant rules of the Federal Circuit and Family Court as per s 213(3)): Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213, 244.

22. Chapter 1, Part 25 of the FCFCOA Rules applies to the enforcement of orders in proceedings other than family law or child support. Rule 25.11(1) of the FCFCOA Rules is as follows:

    25.11 Execution generally

    (1)A party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order was made, as if it were a judgment or order of that Supreme Court.

23. As the orders for the Compensation Debt and Payment Debt were made in Melbourne, the relevant rules are those of the Supreme Court of Victoria.

24. Rule 67 of the Supreme Court Rules, relevantly, provides as follows:

    (a)The Court may, on application by a person entitled to enforce a judgment, order a person bound by the judgment to attend before the Court and be orally examined on the material questions and produce any document or thing in the possession, custody or power of the person bound relating to the material questions: rule 67.02 of the Supreme Court Rules.

    (b)The material questions are:

    (i)whether any and, if so, what debts are owing to the person bound;

    (ii)whether the person bound has any and, if so, what other property or means of satisfying the judgment; and

    (iii)any questions concerning or in aid of the enforcement or satisfaction of the judgment specified in the order for examination or production: rule 67.01 of the Supreme Court Rules.

    (c)An application for an order under r 67.02 may be made without notice to the person bound by the judgment: rule 67.04(1) of the Supreme Court Rules.

    (d)Judgment includes an order: rule 67.01 of the Supreme Court Rules

    (e)An application for an order under Rule 67.02 or 67.03 may be made without notice to the person bound by the judgment: Rule 67.04(1).

    Consideration of examination and production of documents

25. As noted above, pursuant to the above provisions, the FWO seeks the following orders:

    (2)Pursuant to Rule 25.11 of the FC and FCA Court Rules and Rule 67.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Supreme Court Rules) the Second Respondent is ordered to attend before the Court on a date to be fixed by the Court, to be orally examined by Counsel for the Applicant on the material questions, being:

    a.whether any and, if so, what debts are owing to the Second Respondent;

    b.whether the Second Respondent has any and, if so, what other property or means of satisfying orders 2 and 3 made by the Court in this proceeding on 18 October 2019 and order 2 made by the Court in this proceeding on 30 October 2020 (Payment Orders) and his liability to pay interest pursuant to section 212 of the Federal Circuit and Family Court of Australia Act 2021 (Post-judgment Interest); and

    c.any questions concerning or in aid of the enforcement or satisfaction of the Payment Orders and liability for Post-judgment Interest.

    (3)Pursuant to Rule 25.11 of the Court Rules and Rule 67.02 of the Supreme Court Rules, the Second Respondent is ordered, on a date to be fixed by the Court, being two weeks prior to the date for oral examination, to produce to the Applicant, or alternatively to the Court, any document or thing in the possession, custody or power of the Second Respondent relating to the material questions, including but not limited to the documents listed in the Annexure to this Order.

26. A copy of the Annexure is set out in Attachment A to this judgment.

27. The following unchallenged evidence is before the Court.

28. On 23 October 2019 Ms Henry, Senior Lawyer employed by the FWO sent correspondence via email to Mr Shan requiring payment of the Compensation Debt.

29. On 27 October 2019, Ms Henry received an email from Mr Shan requesting an extension to make payment of the Compensation Debt due to financial hardship.

30. On 30 October 2019, Mr Henry sent an email to Mr Shan requesting him to complete a statement of financial circumstances and provide supporting material to the FWO so it could consider the request for an extension for payment of the Compensation Debt.

31. On 4 November 2019, Ms Henry received an email from Mr Shan advising her that:

    ·he was experiencing health issues and therefore could not work much;

    ·he had asked his accountant to prepare the financial documents requested by the applicant; and

    ·he will propose a payment plan for the FWO’s consideration.

32. Between 13 November 2019 and 1 December 2019, Ms Henry received five emails from Mr Shan, which in summary:

    ·attached financial documents of the first respondent to prove its indebtedness; and

    ·requested that the FWO consider a payment plan in relation to the payment of the Compensation Debt.

33. On 6 December 2019, Ms Henry sent an email to Mr Shan which in summary:

    ·requested Mr Shan provide the FWO with a payment plan proposed in respect of the Compensation Debt; and

    ·noted that Mr Shan had not provided the requested statement of financial circumstances which he would need to do if he continued to request a payment plan.

34. On 10 January 2020, Ms Henry received an email from Mr Shan which included a proposed payment plan to pay the Compensation Debt.

35. On 15 January 2020, Ms Henry sent an email to Mr Shan, which in summary:

    ·noted that despite repeated requests, Mr Shan had failed to provide the statement of financial circumstances;

    ·informed Mr Shan that the financial documents that had been provided to the FWO set out the first respondent’s debts and therefore are not documents the FWO can rely on to assess Mr Shan’s financial capacity;

    ·despite the above, the FWO was willing to accept the payment proposal and set out the terms in which it would accept the payment proposal; and

    ·attached an instalment plan agreement for Mr Shan to sign and return if he agreed with the FWO’s terms.

36. Between 21 January 2020 and 5 February 2020, the FWO and Mr Shan negotiated and entered into an instalment plan agreement via email.

37. Between 11 February 2020 and 3 March 2020, Ms Henry and Mr Shan exchanged various emails confirming payments made and received in accordance with the instalment plan.

38. On 17 August 2020, Ms Henry received an email from Mr Shan requesting to halt payments under the instalment plan as he was experiencing hardship due to COVID-19 government restrictions.

39. On 1 September 2020, Ms Henry sent email correspondence to Mr Shan marked 'Without Prejudice’.

40. On 13 November 2020, Ms Henry sent an email to Mr Shan requiring payment of the Penalty Debt, together with a copy of the Penalty Orders. The correspondence also noted that the instalment plan which related to the Compensation Debt was to be reviewed in December 2020

41. On 24 March 2021, the FWO sent correspondence via email and express post to Mr Shan requiring payment of the outstanding Judgment Debt, together with copies of the Compensation Orders and Penalty Orders and a blank statement of financial circumstances.

42. On 6 May 2021, the FWO sent correspondence via email and express post to Mr Shan requiring payment of the Judgment Debt, together with copies of the Compensation Orders and Penalty Orders.

43. On 10 October 2021 the FWO sent an email to the second respondent marked 'Without Prejudice'.

44. At approximately on 29 October 2021, the FWO sent a text message to Mr Shan on mobile numbers 04xx xxx x18 and 04xx xxx x33 which reminded Mr Shan of the outstanding Judgment Debt and demanded payment of same within 7 days.

45. On 19 November 2021, the FWO sent correspondence via email and express post to Mr Shan requiring payment of the Judgment Debt, together with copies of the Orders and a blank statement of financial circumstances.

46. On 8 February 2022, the FWO sent correspondence via email and express post to Mr Shan requiring payment of the Judgment Debt.

47. On 11 July 2022, the FWO sent correspondence via email and express post to Mr Shan requiring payment of the Judgment Debt, together with copies of the Orders and a blank statement of financial circumstances.

48. On 16 June 2023, the FWO sent correspondence via email and express post to Mr Shan requiring payment of the Judgment Debt, together with copies of the Orders and a blank statement of financial circumstances.

49. No response has been received by the FWO to any correspondence sent to Mr Shan since 1 September 2020.

50. The further evidence before the Court is that:

    ·on 21 January 2022 the FWO obtained wind up orders in respect of the first respondent;

    ·a Skip Trace report obtained on 23 September 2022 identified Mr Shan as having a Queensland residential address;

    ·Mr Shan is not a current office holder or shareholder of any corporate entity and that between 1 February 2020 and 20 February 2022 Mr Shan has ceased to be an officer holder of the following entities:

    ·Jenny Global Pty Ltd ACN 617 886 727 (ceased 1 February 2020);

    ·Selina's Fund Pty Ltd ACN 614 046 374 (ceased 1 May 2020);

    ·The Comet Fund Pty Ltd ACN 636 864 554 (ceased 23 August 2020);

    ·Jade Fast Pty Ltd ACN 614 046 712 (ceased 7 July 2021); and

    ·ASL Estate Pty Ltd ACN 636 987 294 (ceased 20 February 2022).

    ·Mr Shan’s Australian Business Number (ABN 59 456 751 962 148) status was cancelled from 6 July 2023;

    ·property searches have not identified any real property held by Mr Shan;

    ·a search of the National Personal Insolvency Index did not furnish any results for Mr Shan; and

    ·a search of death notices and obituaries in Australian newspapers on the Ryerson Index website did not produce any results for Mr Shan.

1. The sum of $41,494.30 remains outstanding and due to the FWO by Mr Shan. The evidence before the Court is that the FWO has made numerous and meaningful attempts to ascertain the financial circumstances of Mr Shan, and has sought compliance with the Court’s orders since 2019. Mr Shan has repeatedly failed to provide the FWO with a statement of financial circumstances, has failed to comply with the instalment plan and since 1 September 2020 Mr Shan has ceased all engagement with the FWO in relation to the Judgment Debt. Further, Mr Shan appears, over a two year period, to have ceased to hold office in any corporate entity. Additionally, searches have not revealed any assets, most specifically any real property, held by Mr Shan which would enable him to satisfy the outstanding Judgment Debt. This is in contradistinction to Mr Shan’s submissions filed on 10 February 2020 where he referred to having a “few rental properties” and submitted that his “…ex-wife is now seeking at the Family Court for property settlement, MLC8050/2015 claiming 50% of my properties”: Fair Work Ombudsman v Jenni International Pty Ltd & Anor (No. 2) [2020] FCCA 2924 at [50].

2. There is public interest in the court’s orders being respected and obeyed and it is appropriate for the Court to assist in judgment creditors to enforce their entitlements: Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704 at [11]. The FWO is entitled to enforce the Judgment Debt. In light of all of the above matters, I am satisfied that it is appropriate to make the orders sought by the FWO for Mr Shan to attend an enforcement hearing and produce relevant documents relating to his property and means of satisfying the outstanding Judgment Debt.

   ORDERS FOR THE TRANSFER OF THE PROCEEDINGS

3. The FWO seeks the enforcement proceedings be transferred to the Brisbane registry pursuant to r 8.01 of the FCFCOA Rules.

4. Rule 8.01 of the FCFCOA Rules is as follows:

   8.01 Change of venue

   (1)A party who files an application or a response in a proceeding may apply to have the proceeding heard in another registry of the Court.

   (2)In considering an application, the Court must have regard to:

   (a) the convenience to the parties; and

   (b) the limiting of expense and the cost of the proceeding; and

   (c) whether the matter has been listed for final hearing; and

   (d) any other relevant matter.

5. Rule 8.01(2) therefore lists the four matters to which I must have regard to when considering the transfer of proceedings to the Brisbane Registry.

6. In applying r 8.01(2), the Court has typically followed the approach in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155, at [162] (Sentry) as follows:

   Where the case can be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court.

7. The Sentry principles were most recently confirmed by the Federal Court of Australia in Moss v Contracoin Pty Ltd [2023] FCA 125 (Moss). In Moss, the Federal Court explained:

   19.There must be sound reason to make an order to transfer proceedings. No one factor is determinative of whether an order to transfer the proceedings should be made. The decision falls to be made in the context of the national character of the Court and taking into account the capacity of the Court to make arrangements to facilitate case management, interlocutory hearings and, where appropriate, aspects of the final hearing being conducted via electronic platforms which enable remote appearances or attendances. It is well recognised that the Court should be flexible in exercising its discretion under s 48 of the Act and that it may be appropriate depending on the particular circumstances and context for one Registry to conduct pre-trial management while allocating the trial to a judge in another Registry: National Mutual at 162; Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49 at [10].

8. The Full Court in Sentry also identified the following factors (cited in Picos v Healthengine Pty Ltd & Anor [2014] FCCA 640 (Picos)) which may be taken into account when considering a transfer application:

   (a)the residence of the parties;

   (b)the residence of the witnesses;

   (c)any expense to the parties;

   (d)the place where the cause of action arose; and

   (e)the convenience of the court itself.

9. As outlined by this Court in Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726, the guidance provided in Sentry is additional to the matters that the Court is required to consider under r 8.01(2) of the Rules. That is, the factors in r 8.01(2) of the Rules are mandatory and the Court must consider them in order to properly exercise its discretion to transfer, or not transfer, the proceedings.

   Considerations

   The convenience of the parties

10. Paragraph [11] of the affidavit filed 1 September 2023 states the following:

    Based upon the exhibits referred to in paragraphs 12 and 13 below, the Applicant believes that the Second Respondent:

    (a)       has been residing overseas;

    (b)       returned to Australia on 19 June 2022;

    (c)       re-entered Australia as a returning resident; and

    (d)       is currently residing in Brisbane, Queensland.

11. The affidavit dated 1 September 2023 annexed a copy of Mr Shan’s returning Australian Incoming Passenger Card, which provides details of Mr Shan’s return to Australia, and further annexed a copy of a skip-trace report which identified Mr Shan’s residential address as being in Queensland.

12. Based on this unchallenged evidence, the Court accepts that Mr Shan is currently residing in Brisbane, Queensland.

13. The Court accepts the FWO’s submission that the convenience of the parties favours the transfer to the Brisbane registry based on Mr Shan residing in Brisbane and that the FWO has briefed counsel in Brisbane.

    The limiting of expense and cost of the proceeding

14. The FWO submits that transfer of the proceedings to the Brisbane registry will limit the cost of the proceeding for both parties. The FWO submits that if orders requiring Mr Shan to be examined under oath are made, the costs to both parties will be minimised if the examination can take place in the Court sitting in Brisbane.

15. A set out earlier, I have made orders that Mr Shan be examined under oath. The Court accepts the FWO’s submission that the examination of Mr Shan in Brisbane registry will minimise the costs of this for both parties.

    Whether the matter has been listed for final hearing

16. The enforcement proceeding is at an early stage, with no date for an enforcement hearing yet listed.

    Any other relevant matter

17. In determining what other factors may be relevant to the present matter, the Court has had regard to the guidance provided in Sentry (as set out above). 

18. Whilst the proceedings appropriately commenced in Melbourne, there is no longer any reason for it to remain in the Melbourne registry of the Court.

19. The only witness is Mr Shan.

20. There are no other additional considerations that have not been addressed above.

    Should the proceedings be transferred?

21. I find that the above factors weight in favour of the proceeding being heard in Brisbane. For the reasons above, Brisbane is the registry in which the hearing can be most suitably conducted and I am satisfied that it is appropriate to make the orders sought by the FWO transferring the proceeding to the Brisbane registry of the Court.

    CONCLUSION

22. Accordingly, I make the orders as set out at the commencement of these reasons.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       4 December 2023

Attachment A

For the purposes of this Annexure, Relevant Period means from 18 October 2019 to the date of the orders to which this Annexure is attached.
Income

1.Your personal income tax returns and notices of assessment from the Australian Taxation Office for the financial years ending 30 June 2020, 30 June 2021, 30 June 2022 and 30 June 2023.

2.Any document showing earnings that you have received during the Relevant Period including, but not limited to, income from the following:

a.   wages;

b.   consulting income;

c.   officer/shareholder fees and/or any other payments received from the following entities:

ii.ASL Estate Pty Ltd ACN 636 987 294;

iii.Jade Fast Pty Ltd ACN 614 046 712;

iv.The Comet Fund Pty Ltd ACN 636 864 554;

v.Selina's Fund Pty Ltd ACN 614 046 374;

vi.Jenny Global Pty Ltd ACN 617 886 727;

vii.ABN 59 456 751 962 148; and

viii.any other entity for which you were a shareholder or director during the Relevant Period;

d.   Trust income/benefits received; and

e.   Centrelink.

3.Copies of Tax returns, Business Activity Statements, Cash Flow Statements or Forecasts, Profit & Loss Statements and Balance Sheets for the financial years ending during the Relevant Period relating to the following entities:

a.   ASL Estate Pty Ltd ACN 636 987 294;

b.   Jade Fast Pty Ltd ACN 614 046 712;

c.   The Comet Fund Pty Ltd ACN 636 864 554;

d.   Selina's Fund Pty Ltd ACN 614 046 374;

e.   Jenny Global Pty Ltd ACN 617 886 727;

f.    Jenni International Pty Ltd ACN 161 787 140;

g.   ABN 59 456 751 926 148; and

h.   any other entity for which you were a shareholder or director during the Relevant Period.

4.Copies of all supplier and/or trade agreements in place during the Relevant Period between you, or any entity for which you were a shareholder or director, and third party suppliers for the provision of goods and/or services.

5.For any Trust in relation to which you are a trustee or a beneficiary, a copy of the trust deed and copies of any documents showing the distribution of income by the Trust during the Relevant Period.

Assets

6.Copies of the certificates of title for all property owned by you, whether individually or jointly, at any point during the Relevant Period.

7.Copies of all mortgage documents for any property identified in response to paragraph 6 above, inclusive of:

a.   mortgage or loan agreements;

b.   mortgage statements showing the payment history during the Relevant Period; and

c.   documents showing the source of funds used to make the mortgage payments.

8.Copies of all valuation reports or other documents recording the value during the Relevant Period of any property identified in response to paragraph 6 above.

9.Copies of all bank statements for the Relevant Period relating to bank accounts held or operated by you or for your benefit, whether in your name, and whether held jointly or individually.

10.Copies of Paypal statements for the Relevant Period relating to all accounts held or operated by you, whether in your name, and whether held jointly or individually.

11.In respect of all vehicles (including cars, motorbikes, buses, trailers and boats) owned and/or leased by you, whether so owned or leased jointly or individually, at any point during the Relevant Period, copies of:

a.   any purchase agreements or lease agreements or other documents showing:

i.the owner/lessee; and

ii.purchase date and price of the vehicle(s);

b.   documents showing any sale or transfer of ownership or lease of the vehicle; and

c.   documents showing the value of the vehicle(s).

12.In respect of any shares owned by you, copies of:

a.   all share certificates and documents evidencing ownership; and

b.   any historical statement of purchases and shares, including those that have been sold, for the Relevant Period.

13.For all personal assets above the value of $5,000.00 owned and/or leased by you during the Relevant Period, whether jointly or individually, including any jewellery, electronic items, furniture, and/or household items, copies of:

a.   any purchase agreements or lease agreement or other documents showing:

i.owner and/or lessee; and

ii.purchase date and price;

b.   all documents showing any sale or transfer or ownership or lease of the asset; and

c.   all documents showing the current value of the asset.

Debts and Liabilities

14.Copies of the following for all property leased or rented by you, whether jointly or individually, during the Relevant Period:

a.   lease agreements;

b.   lease or rent statements or other documents showing the payment history; and

c.   documents showing the source of funds used to make the rental payments.

15.Copies of the following for all liabilities, including debts owed to government authorities, you have or had liability to pay, whether jointly or individually, during the Relevant Period:

a.   agreements or other documents showing the origin of the liability;

b.   agreements or other documents showing details of any payment arrangements;

c.   statements or other documents showing the payment history and current outstanding amount; and

d.   documents showing the source of funds used to make any payments toward the liability.

16.Copies of the following for all loans, including credit cards, you have or had liability to pay, whether jointly or individually, during the Relevant Period:

a.   loan agreements;

b.   loan statements or other documents showing the payment history; and

c.   documents showing the source of funds used to make the loan payments.

Expenses

17.In respect of living expenses, a copy of the most recent bill in your name, either jointly or individually, in relation to the following:

a.   utilities (gas, water and electricity);

b.   telephone and/or internet;

c.   property rates;

d.   accounting and/or tax agent services;

e.   insurances (including life insurance, health insurance, disability insurance, income protection insurance, motor vehicle insurance, home and/or contents insurance); and

f.    education and/or childcare.

18.In respect of household contributions made by any person other than you, statements demonstrating amounts of contribution and frequency such as bank statements or payslips of any contributory during the Relevant Period.

19.In respect of any dependants who were in your care during the Relevant Period, birth certificates and/or medical certificates demonstrating the reason of dependency such as age or medical reason.