Fair Work Ombudsman v Poisson Pty Ltd - [2017] FCCA 2736

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v POISSON PTY LTD & ANOR

[2017] FCCA 2736

Catchwords:
PRACTICE AND PROCEDURE – Application to withdraw admissions in pleadings – application to withdraw admissions in statement of agreed facts.

Legislation:

Federal Circuit Court Rules 2001, rr.1.05(2)

Federal Court Rules 2011, rr.26.11

Cases cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Competition and Consumer Commission v Construction. Forestry, Mining and Energy Union and Others [2007] FCA 1390
Fair Work Ombudsman v D’adamo Nominees Pty Ltd (No.4) (2015) 301 FLR 1
Halici v KDR Victoria Pty Ltd [2015] FCCA 2912
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327
O’Brien v Michel’s Patisserie (WA) P/L and Calmer P/L & Ors v Michel’s Patisserie (WA) P/L & Anor [2010] FMCA 7
Queensland v JL Holdings Pty Ltd [1997] HCA 1
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

POISSON PTY LTD

Second Respondent:

MIYUKI YOGO

File Number:

BRG 10 of 2016

Judgment of:

Judge Jarrett

Hearing date:

13 June 2016

Date of Last Submission:

13 June 2016

Delivered at:

Brisbane

Delivered on:

10 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Spry

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Turnbull

Solicitors for the Respondents:

Myles Thompson Solicitor

ORDERS

The determination of order 4 in the application in a case filed on 6 May, 2016 is adjourned sine die;
Otherwise the application in a case filed on 6 May, 2016 is dismissed;
The application is adjourned to 27 November, 2017 at 9:30am for further directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG10 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

POISSON PTY LTD

First Respondent

MIYUKI YOGO

Second Respondent

REASONS FOR JUDGMENT

On 11 January, 2016 the applicant commenced proceedings against the first and second respondents alleging that the first respondent had contravened the Fair Work Act 2009 (Cth) in a number of respects. The second respondent, the sole director of the first respondent, is alleged to be liable as an accessory for those contraventions.
The contraventions alleged against the first respondent arise from the employment of Ms Yuriko Tai in the first respondent’s restaurant business. The applicant alleges in the statement of claim that Ms Tai was entitled to be paid pursuant to the Restaurant Industry Award 2010. The applicant alleges that Ms Tai was properly classified as a Food and Beverage Attendant, Grade 3 for the purposes of calculating her remuneration under the Award and ought to have been paid as such but was not.
The respondents filed a defence to the statement of claim on 2 February, 2016. At that time the respondents were both represented by solicitors in Cairns. The contraventions were admitted, but some issue was taken with some of the particulars concerning those contraventions. The second respondent specifically admitted that she had actual knowledge of the factual matters which comprised each of the contraventions alleged against the first respondent. However, she denied that she intentionally participated in the factual matters which comprised each of the contraventions alleged against the first respondent as she “did not contravene the terms of the award intentionally”.
Significantly for present purposes, however, by admitting paragraphs 6, 12 and 13 of the statement of claim the first respondent admitted that Ms Tai was employed as a Food and Beverage Attendant, Grade 3 by the first respondent.
Further, on 23 March, 2016 the applicant and the first respondent filed a statement of agreed facts in which they set out the facts upon which they had agreed to proceed with the application to a penalty hearing. The first respondent was represented by the same solicitors that filed the defence on behalf of both respondents. The statement of agreed facts records:
1. This Statement of Agreed Facts is made by the Applicant and the First Respondent in these proceedings for the purposes of section 191 of the Evidence Act 1995 (Cth).
2. This document is submitted to the Court for the purposes of determining orders against the First Respondent for its admitted contraventions and any penalties to be imposed by the Court for those contraventions.
…
10.    Poisson employed Ms Tai as a Food and Beverage Attendant. Poisson agrees that under the Restaurant Industry Award 2010 (Restaurant Award) Ms Tai is a Grade 3 Food and Beverage Attendant.
11.    On 10 May 2012, Ms Tai commenced employment with Poisson as a Food and Beverage Attendant, Grade 3, on a casual basis.
…
13.    At all material times, the primary duties of Ms Tai involved:
(a) taking customer orders and payments;
(b) providing table service of meals and drinks;
(c) washing glasses;
(d) polishing cutlery;
(e) setting and clearing tables;
(f) cleaning floors; and
(g) taking and confirming reservations by email and phone.
APPLICABLE LEGISLATION AND INDUSTRIAL INSTRUMENTS
14.At all material times Poisson was bound by the FW Act and the FW Regulations and was covered by the Award with respect to the employment of Ms Tai.
15.At all material times during the period 10 May 2012 to 20 March 2015, for the purposes of Schedule A to the Award, the applicable transitional minimum wage instrument was the Australian Pay and Classification Scale (APCS) derived from the Cafe Restaurant and Catering Award- State (Excluding South-East Queensland) 2003 [AN140052] (PreModern Award) because:
(a) Ms Tai was an employee who performed work:
(i) within the coverage of the APCS; and
(ii) at the classification level Food and Beverage Attendant, Grade 3 within the meaning of subclause 5.1 .1 (c) of the Pre-Modern Award.
On 6 May, 2016 the respondents filed a joint application in a case in which they seek leave to amend their defence and the statement of agreed facts. The effect of the amendments, if permitted, will be to withdraw the admissions that Ms Tai was properly classified as a Food and Beverage Attendant, Grade 3 for the purposes of the Award. The respondents, it seems, contend that Ms Tai was not, and need not have been paid as a Food and Beverage Attendant, Grade 3. The respondents also ask for the proceedings to be transferred to the Cairns Registry of the Court.
The applicant opposes the respondents’ application for leave to amend. The applicant contends that there is no basis upon which the respondents might withdraw the admissions because they were properly made on the facts and the respondents do not point to any evidence suggesting otherwise. Further, the applicant argues that as a matter of discretion, the Court ought not permit the respondents to withdraw the admissions having regard to:
a)the circumstances in which the admissions were made;
b)the history of the proceedings whereby the applicant changed its position as to evidence and preparation on the basis that liability was admitted as against the first respondent;
c)the explicit opportunities given to the respondents on the question of liability and its subsequent affirmation; and
d)the prejudice to the applicant and the former employee affected by the proceedings.

The principles

The parties agree that by and large the effect of the amendments to the respondents’ defence will be to withdraw the admissions made by the first respondent of the allegations in paragraph 6, 12 and 13 of the statement of claim. Those allegations go to the proper classification of Ms Tai under the Award. The contraventions advanced by the applicant are based upon the proposition that Ms Tai was properly classified as a Food and Beverage Attendant, Grade 3. Consequently, if her proper classification is put in issue, the first respondent’s admissions of the contraventions must also be withdrawn.
The relevant admissions also appear in the statement of agreed facts filed on the Court’s file and which records admissions by the first respondent only.
As counsel for the applicant points out, the rules of this Court do not deal with the withdrawal of admissions made in pleadings. Rule 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) provides, however, that if the FCCR are “insufficient” the Court may apply the Federal Court Rules 2011 “in whole or in part and modified or dispensed with, as necessary”. Resort to the Federal Court Rules is common when dealing with pleading questions in this Court: Halici v KDR Victoria Pty Ltd [2015] FCCA 2912 and the cases cited therein.
Rule 26.11 of the FCR relevantly provides as follows:
(1) A party may, at any time, withdraw a plea raised in the party’s pleading by filing a notice of withdrawal, in accordance with Form 47.
(2) However, a party must not withdraw an admission or any other plea that benefits another party, in a defence or subsequent pleading unless:
(a) the other party consents; or
(b) the Court gives leave.
(3) The notice of withdrawal must:
(a) state the extent of the withdrawal; ....
In Australian Competition and Consumer Commission v Construction. Forestry, Mining and Energy Union and Others [2007] FCA 1390, Finn J said at paragraph [4]:
4. The relevant principles governing the grant of leave to withdraw an admission have been canvassed in recent authorities to which I was taken both by counsel for Mr Lancsar and counsel for the ACCC. For present purposes it is sufficient for me to refer to the decision of Debelle J in Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 where, after considering the authorities that had been traversed in recent case law, his Honour said (at para 32) of the discretion to grant leave:
The overriding consideration is the interest of justice. The Court will not lightly permit a party to withdraw an admission with the other party has acted to its detriment on the admission, or is otherwise prejudiced by the withdrawal. It is plainly necessary to have regard to all relevant factors including the nature and importance of the admission, the circumstances in which the admission was made, whether the admission was made deliberately or inadvertently, the reason given the application to withdraw, the detrimental prejudice which might be caused to the other party and the stage which the proceedings of reach, and whether the admission is contrary to the facts. The list of relevant factors affecting the Courts decision will plainly vary from case to case.
Here, the admissions that the respondents seek to withdraw go beyond admissions in their defence. They include admissions made in the statement of agreed facts.
There are no gateways that have to be passed before leave to withdraw an admission may be granted. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay, wasted costs and the concerns of case management, will assume importance on an application for leave to amend.
As counsel for the applicant points out, a body of authority has developed as to the principled exercise of this otherwise broad and unfettered discretion. In Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327 the Full Court of the Federal Court point out:
18.    The true position was, his Honour said, that there was no principle that admissions might or might not be withdrawn. Rather the Court had a broad discretion to weigh up all matters with the overall question being to ensure that there was a fair trial. His Honour accepted the principles stated by Santow J of the Supreme Court of New South Wales in Drabsch v Switzerland General Insurance Co Ltd (unreported, 16 October, 1996) as follows:
‘
1.          Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted….
2.          The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded… .
3.          Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn… .
4.          It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission… .
5.          Following Cohen v McWilliam & Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.’
In Fair Work Ombudsman v D’adamo Nominees Pty Ltd (No.4) (2015) 301 FLR 1 Judge Lucev considered the circumstances in which a party might be permitted to withdraw a formal admission. His Honour summarised the position as follows (footnotes omitted):
74. Withdrawal of an admission is not dealt with in the FCC Rules, but was dealt with in the Federal Court Rules 1976 (Cth) where O.22 r.4(2) of the FC Rules 1976 provided that a party could not withdraw an admission operating for the benefit of another party without the consent of that other party or the leave of the Court. Rule 26.11 of the Federal Court Rules 2011 (Cth) provides as follows:
(1)   A party may, at any time, withdraw a plea raised in the party’s pleading by filing a notice of withdrawal, in accordance with Form 47.
(2)   However, a party must not withdraw an admission or any other plea that benefits another party, in a defence or subsequent pleading unless:
(a)    the other party consents; or
(b)    the Court gives leave.
(3)   The notice of withdrawal must:
(a)    state the extent of the withdrawal; and
(b)    if the withdrawal is by consent -- be signed by each consenting party.
75.    The effect of both the former O.22 r.4(2) of the FC Rules 1976 and r.26.11 of the FC Rules 2011 is that a party must specifically obtain the leave of the Court or the consent of the other party to withdraw an admission to which those rules applied. Rule 26.11 of the FC Rules 2011 applied at the time of the liability hearing, and can be applied by this Court by reason of r.1.05(2) of the FCC Rules which provides that if the FCC Rules are, relevantly, “insufficient”, the Court may apply the FC Rules in whole or in part and modified or dispensed with as necessary. In this case, where the FCC Rules do not provide for the withdrawal of an admission, they are insufficient, and it is therefore necessary, in dealing with an attempt to withdraw an admission, to apply r.26.11 of the FC Rules 2011.
76.    Before granting leave for an admission to be withdrawn the Court must be satisfied that:
a) an error or mistake by or on behalf of the party seeking to withdraw the admission has been demonstrated;
b) there is a sensible explanation for the making of the admission, and that explanation has been provided, based on evidence of a solid and substantial character; and
c) no injustice will be occasioned to the other party by the withdrawal of the admission, other than hardship by delay or costs which can be accommodated by an appropriate order for costs.
The last matter referred to by Judge Lucev in [76] of his Honour’s reasons must be read in the light of the plurality judgment in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
111. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases[176]. On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future..
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 was a case concerned with the withdrawal of deemed admissions that had come to be made 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.
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.
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.

The respondents argue that leave ought to be granted because:
a)the admissions were improperly made by the solicitors acting for the respondents when the admissions were made in circumstances where:
i)the applicant’s statement of claim did not properly plead all of the relevant facts necessary to be proved to reach the conclusion pleaded at paragraphs … of the statement of claim that Ms Tai was a food and beverage attendant grade 3;
ii)the solicitors and the second respondent did not turn their mind to whether Ms Tai had the “appropriate level of training” which is a necessary prerequisite to be classified as a grade 3 Attendant pursuant to section B.2.3 of Schedule B of the Restaurant Industry Award but only to the conclusion pleaded in the statement of claim;
iii)if those facts had been pleaded, then that “might have drawn attention to the issue for the person drawing the Defence”;
iv)the issue as to whether Ms Tai had the “appropriate level of training” for the purposes of the definition in the Award was not raised or discussed with the second respondent by her previous solicitors; and
v)as it was, it “appears as if the person drawing the Defence did not address their mind to the issue of whether or not there was a proper basis in fact or law to support the allegation that Ms Tai was a grade 3 Attendant under the Award”;
b)that whether Ms Tai was all material times a grade 3 Attendant in terms of the Award is a crucial factual issue in the case because “all the calculations as to the wages which should have been properly payable to Ms Tai by the first respondent depend upon that factual matter”;
c)the second respondent does not have a good command of the English language and did not have the necessary training or capacity to identify the issue for herself. “Accordingly, the second respondent was not aware of a possible defence to the claim which is available to the respondents until the matter was raised with her by her present legal advisers after they had the opportunity to consider the pleadings and the relevant materials”;
d)the application to withdraw the admission was made promptly as soon as the second respondent was made aware of the issue by her present legal advisers;
e)it is in the interests of justice that a civil penalty should only be imposed if there is a proper basis in both fact and law to establish that the relevant contravention of the award has occurred; and
f)whilst the pleadings in the case are closed, the proceedings have not yet been set down for trial. There are live issues on the pleadings in any event which will require a trial and if leave to withdraw the admissions is granted, then those factual issues and interpretation of the Award are matters which can be dealt with at the trial.
The Federal Circuit Court is not a Court of strict pleading. However, where they have been utilised, some regard should be had to the rules related to pleadings as set out in the Federal Court Rules 2011. In O’Brien v Michel’s Patisserie (WA) P/L and Calmer P/L & Ors v Michel’s Patisserie (WA) P/L & Anor [2010] FMCA 7 Lucev FM (as his Honour then was) noted (footnotes omitted):
11. The statement of claim must plead the necessary facts for the purpose of formulating a complete cause of action. While it is not permissible to merely state a conclusion drawn from facts not set out in the statement of claim, consideration should be given to whether the conclusionary pleading still achieves the objective of pleadings. A pleading should be allowed to stand if it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action.
The plea in paragraph of the statement of claim is a pleading of a conclusion, perhaps of mixed fact and law, that could be arrived at after a consideration of the component facts that would need to be established to lead to that conclusion. But here, no issue was ever taken with the form of the pleading before the relevant admissions were made. There was no objection to the form of the pleading, nor any request for particulars. There was no denial of the plea on the basis that the pleading was unintelligible or any other basis. The admissions were confirmed by the further admission in the statement of agreed facts.
There is sworn evidence from the second respondent who says that:
a)she is the director of the first respondent. She was the person who made all decisions for the company, including staff levels, personnel levels, the roles staff play, the jobs they do and the rates of pay that they receive;
b)she has operated the restaurant in question in these proceedings or been in the restaurant trade for more than ten years, initially on the Gold Coast and now in Cairns. She has extensive experience in running restaurants, “in employing staff and all other matters involved in that”;
c)she relies upon her accountant, Kayoko Inoue to advise her in her business. She did not provide the second respondent with information about industrial awards before the applicant’s investigation. But she gave her Weekly Tax Tables every year.
d)she participated in a record of interview with the applicant’s officers that she:
i)attended with a Japanese interpreter on the telephone;
ii)thought she had no choice but to attend. She says she thought it was a compulsory requirement to attend the interview rather than an offer to participate which she could have refused if she had wanted to do so. The record of interview, she says, was undertaken on that basis;
iii)understood to be a record of interview that was concerned only with the issue of unfair dismissal rather than to ventilate issues relating to underpayment;
iv)says she attended without initially being given the opportunity to seek legal advice or to have a lawyer or any other person present with her at the lime of undertaking the record of interview. Had she sought legal advice, or had she been given the opportunity to seek legal advice, she would have done so.
e)Even though the offer of interview by email she received from the applicant on 6 July, 2015 suggested she seek legal advice, she says she “did not pay attention to the attachment containing that advice”.
Although the second respondent’s evidence has not been the subject of forensic challenge in a trial process, I am not obliged to accept it uncritically for the purposes of this interlocutory hearing. I have determined that I cannot accept it uncritically. In my assessment the second respondent’s affidavit should be accorded very little weight in respect of the matters I have dealt with below. Moreover that lack of probity detracts considerably from the balance of her evidence in the affidavit. My reasons for those conclusions are as follows.
The evidence of the applicant is that the second respondent was invited to particulate in a record of interview by correspondence. A letter was sent to the second respondent on 6 July, 2015 by way of email. The email said:
Dear Mr. and Ms. Yogo,
Please find attached offers of interview regarding the allegations raised by Yuriko Tai. The interviews will be conducted by phone, I will organise a Japanese−interpreter for you.
Please let me know within 7 days whether you accept our invitation. In addition please contact me. if you have any questions.
Regards,
Lara Hurrell Fair Work Inspector.
Relevantly, the attached letter of invitation is in the following terms:
Offer of Interview
Dear Ms. Yogo,
The Fair Work Ombudsman (FWO) is conducting an investigation into Poisson Pty. Ltd. For alleged contraventions of the Commonwealth workplace laws in respect to but not limited to; payment of wages, penalty rates, overtime, provision of pay slips and record keeping deficiencies.
We are writing to offer you the opportunity to participate in an electronically recorded interview regarding the allegations identified for investigation. Please be advised this process is entirely voluntary and you are not under any obligation to accept.
The interview as offered will be electronically recorded and may be used as evidence in legal any proceedings relating to the matter identified for investigation. A copy of the interview will be provided to you for your records.
Should you wish to participate in an electronically recorded interview, you are able to have a representative present at the interview, however, the representative must not be a person involved in, have prior knowledge of, or be a party to the allegations under investigation.
You may also wish to voluntarily bring with you to the interview any documents you wish to refer to, which may be relevant to the investigation. You may be asked to voluntarily provide the FWO with an original document or a copy of any document during the interview. The FWO may ask to retain any original or copy you produce during the interview to assist in the conduct of the investigation.
The FWO advises you to seek independent legal advice in connection with this offer of an electronically recorded interview.
Please contact me within 7 days of receipt of this letter to confirm whether you are willing to participate in an electronically recorded interview. Alternatively, should you require further information or clarification in relation to this process please do not hesitate to contact me.
A similar letter was addressed to the second respondent’s husband Masahiko Yogo. There is no evidence from him before me.
There is no dispute that the second respondent received that correspondence. She accepts in her affidavit that she did so. She says that she did not read it. It is difficult, however, to give any weight to that evidence. In her affidavit she says:
On 06/07/16 FWO sent an offer of interview by email which suggested I seek legal advice, but I did not pay attention to the attachment containing that advice.
As can be seen from the terms of the email and the attached letter, the email did not suggest that the second respondent obtain legal advice. That suggestion was made substantially into the body of the letter and after the letter had pointed out that:
a)the applicant was investigating contraventions of the Commonwealth workplace laws in respect to but not limited to; payment of wages, penalty rates, overtime, provision of pay slips and record keeping deficiencies. No mention is made of unfair dismissal claims;
b)participation was voluntary (with that word being emphasised by being in bold typeface) and the second respondent was under no obligation to participate; and
c)the second respondent was able to have a representative present at the interview.
The second respondent’s own evidence that she saw the recommendation to obtain legal advice is inconsistent with her evidence that she did not read the “attachment” to the email of 6 July, 2015 because the recommendation was not in the email as she suggests, but rather, was in the “attachment” itself.
Further, no weight can be given to the second respondent’s evidence where, on 11 July, 2015 the second respondent’s son (who, on her own evidence, assisted her) sent an email to the applicant in these terms:
Dear Lara,
Thank you for the email.
I will accept with the interview but my dad does not want to participate so me and my mum will do the interview.
Below is our date, time and mobile which we are free on.
[details omitted]
Please let me know if you cannot make time on the date or time then we will make time on another date.
Best Regards
Rikiya Yogo
That correspondence clearly indicates that Mr Yogo and the second respondent knew they had a choice. He chose not to participate and she chose to participate.
Further, in her affidavit filed on 3 May, 2016 the second respondent says:
3. I have very limited command of the English language even though I have been in Australia for some time. I recall that when I undertook the record of interview, an interpreter was appointed by the Fair Work Ombudsman. She was not present with me but was on a telephone hook-up.
4. I recall being asked about the term “restaurant award.” I understood that term to mean an award for excellence or in other words, a trophy or plaque or certificate that one hung upon the wall. I did not understand that term to mean an industrial award whereby levels of pay and allowances were prescribed.
Even making allowances for difficulties in interpretation as the second respondent suggests existed, the evidence is paragraph 4 is at best disingenuous. The record of interview records that on page 12 of the record the applicant was asked about the Restaurant Industry Award that was referred to in her letter (written by her son) and sent to the applicant by the second respondent. Then commencing on page 18 of the record of interview the following discussion occurs (LH refers to the investigator and MY refers to the second respondent):
LH:Okay. In the letter that you wrote to me, so Exhibit No.1, you referred - well it says in the first sentence there, “We have started employing Yuriko Tai on 5 July 2012 as a waitress under the Restaurant Industry Award”. So at what point did you look at that award? Or did you at all?
MY:(Through Interpreter) We have been receiving updated information regarding position – each position for Restaurant Industry Award, so not any specific period I did refer to the Restaurant Industry Award. I have been just keeping an eye on those information that we have been receiving regularly or annually.
LH:Okay, can you tell me what type of information you’re receiving and who sends it to you?
MY:(Through Interpreter) I understand that the information is updated every year on the 1st of April so I do receive that - updated on the 1st of July so I do receive the information either from newsagency or account - through our accountant.
LH:Okay and for how long have you been receiving that information and those updates?
MY:(Through Interpreter) Whenever we have a new accountant or every - on the 1st of July through a newsagency and when I check the contents of the information, if there are any updated information, I have ·been throwing the old information away.
LH:Okay and for how long have you been checking the updates? You said you’ve been operating for nine years so have you done that the whole time?
MY:(Through Interpreter) I have been receiving weekly information - I have been receiving a document called weekly tax report. Weekly. tax table.
LH:Okay.
DS:The question tha.t was asked was in respect of the information that you receive about the modern award.
MY:(Through Interpreter) I’m not too sure whether I understand the modern award or not but I understand the current award is $17.29.
LH:Okay and how did you get that information?
MY:(Through Interpreter) Through my accountant.
LH:Okay. Have you ever looked at the Restaurant Industry Award?
MY: (Through Interpreter) Yes, I have. I have a copy of the email about the award which was sent by my accountant.
LH:And when did you receive that?
MY:(Through Interpreter} Maybe a few months ago when the information was updated previously but - it’s through the email but it’s not a very long time ago.
LH:Okay so a few months ago when that was sent to 3 you, was that the first time you had heard about 4 the Restaurant Industry Award?
MY:(Through Interpreter) No, throughout the nine years that we have been operating at the moment and also we did have a business in Gold Coast. So regarding the restaurant award, industry award, I have been aware of this restaurant award and also catering industry award and we have been looking at information on the website.
LH:Okay so when did you have the business on the Gold Coast?
MY:(Through Interpreter) It was about - around about 10 years ago.
LH:Okay and what type of business was that?
MY:(Through Interpreter) The same type of business.
LH:Okay so it was a restaurant as well?
MY:(Direct) Yes.
MY:(Through Interpreter) Yes.
LH:Okay so at that time, so ten years ago, you were aware that there was a Restaurant and Catering Award, is that correct?
MY:(Direct) Yes.
MY:(Through Interpreter) Yes, I was aware of that.
LH:Okay and are you a member of any employer associations?
MY:(Through Interpreter) Yes, I was. I resigned now but up until this month I was a member.
LH:Okay, which association?
MY:(Direct) Restaurant and Catering.
LH:Okay, Restaurant and Catering Association.
MY:(Direct) Yes.
LH:Yeah, okay, until last month?
MY:(Direct) Yes.
The suggestion that the reference to the “restaurant award” was a reference to some award or a plaque that was hung on the wall and that the second respondent did not understand that term to mean an industrial award whereby levels of pay and allowances were prescribed is simply not open on the discussion between the Fair Work inspector and the second respondent. The second respondent actually says: “I’m not too sure whether I understand the modern award or not but I understand the current award is $17.29”.
The second respondent disputes that Ms Tai was a Food and Beverage Manager and disputes her duties, but provides no specificity as to what her actual duties were alleged to have been during the relevant periods. There is a document in the applicant’s evidence that confirms that Ms Tai was employed by the first respondent as a waitress under “Restaurant Industry Award – Adult − industry level”, said to have been prepared by the second respondent’s son and from which the second respondent attempts to dissociate herself.
There is also a visa related document signed by the second respondent in which Ms Tai is stated to be a Food and Beverage Manager. The second respondent says that she did not fully understand the contents of that document and she signed that document without understanding its contents.
In respect of those matters, however, I accept the applicant’s submission that the second respondent’s evidence seems entirely untenable. The second respondent says that she has over ten years of extensive experience in the restaurant industry operating restaurants and managing them.
To the extent that the second respondent’s evidence bears at all upon the matters to be considered on this application, I do not consider her evidence helpful. She gives no evidence about the circumstances in which the relevant admissions came to be made by the solicitors that were acting for she and the first respondent. She simply gives no evidence about that at all.
The task of explaining the circumstances of the making of the admissions is left to the second respondent’s present solicitor who, through hearsay evidence not confirmed by the second respondent even though she gave her own evidence, says:
10. I am informed by the Second Respondent and verily believe:
a. That she instructed MacDonnell’s Law to act as solicitors on behalf of the Respondents in this action on about the 22nd January 2016.
b. That she has poor English language skill, as deposed by her in paragraph 3 of her affidavits sworn herein on the 20^th day of April 2016 and filed herein.
c. At no time did her previous solicitors suggest to her that she may have a defence to the allegation made by the Applicant that Ms Tai was a “grade 3” Food and Beverage Attendant under the Award, nor did they make any enquiry of her as to whether she had any knowledge of any relevant qualifications or training possessed by Ms Tai.
d. In particular, her previous solicitors did not at any time discuss with her the definition of “appropriate level of training” contained in section 3.1 of the Award, nor was she aware at any time of the existence of that definition or its relevance, and the first time the issue was raised with her was when she conferred with Mr Turnbull of Counsel shortly prior to the filing of the present application to withdraw the admission.

The solicitor deposes that he received the “materials” from the respondents’ previous solicitors and then considered that and other material. He decided to brief counsel. He says that counsel raised with him the “point of law” (described in the affidavit of the solicitor as being the issue as to whether Ms Tai had the appropriate level of training and qualifications to satisfy the definition in section 3.1 of the Award). That is not a point of law, but rather a question of fact or at best, mixed fact and law.
Be that as it may, that the second applicant now has fresh legal advisers that have come to a different view, is of no particular moment: Rigato Farms Pty Ltd v Ridolfi at [27].
The respondents contend that “the factual basis for denial of the fact that Ms Tai had the appropriate level of training is contained in paragraph 9 of Mr Thompson’s affidavit”. That refers to the affidavit sworn by Ms Tai and filed by the applicant on 6 April, 2016 well after the respondents had, by their defence, made the relevant admissions and after the filing of the statement of agreed facts which reinforced those admissions. The affidavit was filed pursuant to the orders made on 21 March, 2016. The second respondent makes the point that there is no evidence about the content of the diploma course that Ms Tai swears to having achieved or its relevance to food and beverage attendant work as distinct from other forms of hospitality work such as hotel work. However, that criticism (if it be one) is not to the point. The applicant was under no obligation to place that evidence before the Court given the admissions that had been made. It was only the liability of the second respondent as an accessory which remained in issue, not the primary contraventions of the first respondent.
Further, that there is nothing sworn by Ms Tai in the affidavit as to having ever been involved in any form of food and beverage attendant work prior to working for the first respondent and that she deposes to receiving initial on-the-job training when she commenced working for the first respondent is unremarkable given the purposes for which the affidavit was filed.
The second respondent argues that the admissions made in the present case were made in circumstances where she, “both on her own behalf and as the controlling mind of the first respondent, was not herself in a position to properly protect her interests in determining whether she should admit that Ms Tai was a grade 3 Attendant”. I reject that submission. The material clearly shows that at all relevant times the respondents were represented by solicitors in the proceedings who filed the respondents’ pleading and who participated in the preparation of the statement of agreed facts. As the respondents submit, “She clearly, and properly, relied upon her previous legal advisers for advice as to the terms of the admissions that she should make.”
The second respondent points out that the applicant “originally intervened in this matter in the interests of the employee, Ms Tai. The first respondent very promptly paid to Ms Tai the whole amount which was calculated by the Fair Work Ombudsman as being due to her (of course, calculated upon the basis that Ms Tai was a grade 3 Attendant)”. The respondents undertake not to seek to recovery of any monies from Ms Tai, notwithstanding the outcome of this application, or the outcome of the main proceedings.
However, it is clear that the purpose of the withdrawal of the admission about the classification of Ms Tai is designed to have a broader implication for the proceedings. The question as to whether or not Ms Tai was paid the correct amount is relevant to the underpayment contraventions. The second respondent argues that if leave is not granted to withdraw the admissions, “then the Respondents will suffer significant detriment and prejudice if they are in fact then held liable for civil liabilities based upon incorrect propositions of fact or law”. By contrast, the second respondent argues that the applicant “should not suffer any significant detriment or prejudice by the withdrawal of the admissions”.
The respondents point out that:
It has been said that efficient case management is a factor which should weigh against permitting the withdrawals of admissions which had been made during the course of proceedings. That has been emphasised in cases such as Ridolfi v Rigato Farms Ptv Ltd [2000] 2 Qd R 455, (Queensland Court of Appeal) and in many other authorities. However, that is always restricted by the principle enunciated by the majority of the High Court of Australia in Queensland v JL Holdings Pty Ltd [1997] HCA 1, (a case where an application was made prior to the commencement of the trial) where their Honours said:
“Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration, but it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.”
As I have pointed out above, the authority of that proposition has been substantially eroded by the remarks of the plurality in Aon at [111]. Similarly, French CJ at [96] also circumscribed the width of the principle said to be enunciated in the JL Holdings Case.

Conclusion

Here I do not permit the respondents leave to withdraw the admissions for the following reasons:
a)I accept that the admissions, both in the pleading and the statement of agreed facts was considered and deliberate. The admissions made in the defence filed in March, 2016 were expressly made and represent a forensic and strategic decision by the respondents with the benefit of lawyers acting on their behalf. The evidence does not establish that the lawyers were not acting on instructions or had not taken proper instructions from the second respondent.
b)The respondents were represented by solicitors at all relevant times. There is no evidence from those solicitors about the circumstances in which the admissions were made.
c)There is no proper explanation as to the circumstances in which the admissions, both in the pleading and the statement of agreed facts have come to be made.
d)The first respondent confirmed the admissions at a directions hearing on 21 March, 2016 by consenting to orders that the first respondent enter into a Statement of Agreed Facts.
e)The admissions are significant. I accept that they go to the heart of the proceedings and in form and substance represent an admission of liability for each of the primary contraventions pleaded against the first respondent.
f)The applicant has relied upon the admissions. The conduct of the proceedings has been affected by the admissions. The matter was to proceed to a liability hearing in relation to the second respondent only. On 20 April, 2016 the applicant filed its evidence on the issue of the liability as against the second respondent only. If the admissions are to be withdrawn, the applicant is likely to be required to file further evidence on the issue of liability and have the matter programmed to a full liability hearing as against both respondents.
g)I accept that no good reason has been asserted for withdrawing the admissions. I accept that there is nothing to suggest the admissions are inconsistent with the facts despite the assertions of the second respondent and the lawyer for the respondents.
h)Case management principles and the public interest warrant refusal of leave. In my view, the interests of justice demand that the respondents take responsibility for their conduct, something which the second respondent seems unwilling to do given the content of her affidavit.
i)I accept that the respondents had more than a sufficient opportunity to identify the issues they seek to agitate in the proceedings before filing their defence. They confirmed their forensic choice with the statement of agreed facts.
The application to transfer the proceedings to the Cairns registry of this Court should be adjourned to a date to be fixed to be heard and determined when the application is ready to be heard.
Otherwise the application in a case filed on 6 May, 2015 ought be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 November, 2017.

Date: 10 November 2017