Fair Work Ombudsman v Jorgensen - [2018] FCCA 1202

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v JORGENSEN

(No.2) [2018] FCCA 1202

Catchwords:
INDUSTRIAL LAW – Contempt of Court – Freezing Order – withdrawals contrary to orders - whether conduct covered by exceptions – onus of proof – exceptions not applying proved beyond reasonable doubt – conviction.

Legislation:

Fair Work Act 2009 (Cth)

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

LEIGH ALAN JORGENSEN

File Number:

BRG 1032 of 2017

Judgment of:

Judge Vasta

Hearing date:

1,2 and 3 May 2018

Date of Last Submission:

3 May 2018

Delivered at:

Brisbane

Delivered on:

3 May 2018

REPRESENTATION

Counsel for the Applicant:

Ms E.S. Wilson QC

Ms C. Hartigan

Solicitors for the Applicant:

Ashurst Australia

Counsel for the Respondent:

Ms K.W. Gover

Solicitors for the Respondent:

Lillas & Loel Lawyers

ORDERS

THE COURT DECLARES:

A. The Court finds that the Applicants’ Charge 1(a)(i) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders of this Court dated 30 July 2015 is proved.

B. The Court finds that the Applicants’ Charge 1(a)(ii) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders of this Court dated 30 July 2015 is proved.

C. The Court finds that the Applicants’ Charge 1(a)(iii) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders of this Court dated 30 July 2015 is proved.

D. The Court finds that the Applicants’ Charge 1(a)(iv) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders of this Court dated 30 July 2015 is proved.

E. The Court finds that the Applicants’ Charge 1(a)(v) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders of this Court dated 30 July 2015 is proved.

F. The Court finds that the Applicants’ Charge 1(a)(vi) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders of this Court dated 30 July 2015 is proved.

G. The Court finds that the Applicants’ Charge 1(a)(vii) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Order of this Court dated 30 July 2015 is proved.

H. The Court finds that the Applicants’ Charge 1(a)(viii) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Order of this Court dated 30 July 2015 is proved.

The Court finds that the Applicants’ Charge 1(a)(ix) of the Application that the Respondent breached Order 6 of the Orders of this Court dated 24 July 2015 and Order 2 of Orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fair Work Ombudsman v Jorgensen

Details

AGLC: Fair Work Ombudsman v Jorgensen [2018] FCCA 1202
Case: [2018] FCCA 1202
Decision Date: 3 May 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Jorgensen in the Federal Circuit Court of Australia. The dispute concerned allegations that Mr. Jorgensen had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to comply with a notice issued by the FWO under section 484 of the Act. This notice required Mr. Jorgensen to provide documents and information relevant to an investigation being conducted by the FWO.

The central legal issue before the Court was whether Mr. Jorgensen had a valid excuse for failing to comply with the section 484 notice. The FWO contended that Mr. Jorgensen's non-compliance was a contravention of the Act, while Mr. Jorgensen argued that he had a reasonable excuse for his failure to provide the requested information and documents.

Judge Vasta considered the meaning of "reasonable excuse" in the context of section 484 of the *Fair Work Act 2009* (Cth). The Court found that Mr. Jorgensen's stated reasons for non-compliance, which included concerns about the scope of the investigation and the potential for self-incrimination, did not constitute a reasonable excuse. The Court emphasised that the statutory obligation to comply with a notice issued under section 484 is significant, and any claimed excuse must be substantial and well-founded. The Court concluded that Mr. Jorgensen had failed to establish a reasonable excuse for his non-compliance.

The Court ordered Mr. Jorgensen to pay a penalty for his contravention of the Act.

Orders