Fair Work Ombudsman v Priority Matters Pty Ltd and Ors, and; Fair Work Ombudsman v Superlattice Solar Pty Ltd and Anor, and; Fair Work Ombudsman v Geneasys Pty Ltd

[2015] FCCA 3243

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v PRIORITY MATTERS PTY LTD & ORS, and
FAIR WORK OMBUDSMAN v SUPERLATTICE SOLAR PTY LTD & ANOR, and
FAIR WORK OMBUDSMAN v GENEASYS PTY LTD & ANOR [2015] FCCA 3243

Catchwords:
PRACTICE AND PROCEDURE – Application for withdrawal of admissions – whether applicant’s failure to comply with Court orders affects application for withdrawal of admissions – whether Court can take case management considerations into account – whether admissions deliberately made – interest in the administration of justice permits withdrawal of admissions – leave granted to respondents to withdraw admissions.

Legislation:

Fair Work Act 2009

Federal Circuit Court Act 1999 (Cth) s.15
Federal Circuit Court Rules 2001, r.1.03

Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14

Applicant: FAIR WORK OMBUDSMAN

First Respondent: PRIORITY MATTERS PTY LTD

Second Respondent: KIA SILVERBROOK

Third Respondent: FIONA INVERARITY

File Number: SYG 3209 of 2013

Applicant: FAIR WORK OMBUDSMAN

First Respondent: SUPERLATTICE SOLAR PTY LTD

Second Respondent: KIA SILVERBROOK

File Number: SYG 3210 of 2013

Applicant: FAIR WORK OMBUDSMAN

First Respondent: GENEASYS PTY LTD

Second Respondent: KIA SILVERBROOK

File Number: SYG 3228 of 2013

Judgment of: Judge Street

Hearing date: 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Sydney

Delivered on: 4 December 2015

REPRESENTATION

SYG3209/2013

Counsel for the Applicant: Ms V McWilliam

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Solicitors for the Respondents: Mr P Argy
ArgyStar

SYG3210/2013

Counsel for the Applicant: Ms V McWilliam

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Solicitors for the Respondents: Mr P Argy
ArgyStar

SYG3228/2013

Counsel for the Applicant: Ms V McWilliam

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Solicitors for the Second Respondent: Mr P Argy
ArgyStar

ORDERS

SYG3209/2013

1. Leave is granted to the First and Second Respondents to withdraw any admission of liability made in the transcript, court orders or any communication to the application.

2. Leave is granted to the First and Second Respondents to withdraw any admission made in response to either the statement of claim or in relation to the notice to admit facts.

3. The First and Second Respondents file and serve any defence to the statement of claim on or before 9 December 2015.

4. These proceedings be heard concurrently with the matters of Fair Work Ombudsman v Superlattice Solar Pty Ltd & Anor SYG3210/2013, Fair Work Ombudsman v Geneasys Pty Ltd & Anor SYG3228/2013, Fair Work Ombudsman v Kia Silverbrook & Anor SYG1743/2014 and Fair Work Ombudsman v Mpowa Pty Ltd & Anor SYG1780/2014 and evidence in one matter will be evidence in the other matters.

5. All outstanding timetabling orders in each of the proceedings referred to above be vacated.

6. All matters be fixed for hearing before Judge Street in the week commencing 7 March 2016 at 10:00 am to be heard until concluded.

7. Any further affidavit evidence by the applicant be filed and served on or before 15 January 2016.

8. Any affidavit evidence in answer by the respondents be filed and served on or before 5 February 2016.

9. The parties are to notify each other of any witnesses required for cross-examination on or before 9 February 2016.

10. The Applicant to file and serve any evidence in reply on or before 15 February 2016.

11. The Applicant to file and serve submissions including any submissions as to penalty on or before 22 February 2016.

12. The Respondents to file and serve any submissions including in answer to the issue of penalty on or before 29 February 2016.

13. Liberty to apply on 48 hours’ notice.

    The Court notes that:

    Subject to the grant of further leave, cross-examination of witnesses will be limited to half an hour.

    Subject to leave, oral submissions in respect of contravention will be limited to two hours for the respective parties.

    If the issue of penalty arises, subject to the determination of any application for adjournment, the issue of penalty will be dealt with immediately after the determination by the Court of the issue of the alleged contraventions including the making of any orders in respect of any underpayments.

    SYG3210/2013

14. Leave is granted to the First and Second Respondents to withdraw any admission of liability made in the transcript, court orders or any communication to the application.

15. Leave is granted to the First and Second Respondents to withdraw any admission made in response to either the statement of claim or in relation to the notice to admit facts.

16. The First and Second Respondents file and serve any defence to the statement of claim on or before 9 December 2015.

17. These proceedings be heard concurrently with the matters of Fair Work Ombudsman v Priority Matters Pty Ltd & Anor SYG3209/2013, Fair Work Ombudsman v Geneasys Pty Ltd & Anor SYG3228/2013, Fair Work Ombudsman v Kia Silverbrook & Anor SYG1743/2014 and Fair Work Ombudsman v Mpowa Pty Ltd & Anor SYG1780/2014 and evidence in one matter will be evidence in the other matters.

18. All outstanding timetabling orders in each of the proceedings referred to above be vacated.

19. All matters be fixed for hearing before Judge Street in the week commencing 7 March 2016 at 10:00 am to be heard until concluded.

20. Any further affidavit evidence by the applicant be filed and served on or before 15 January 2016.

21. Any affidavit evidence in answer by the respondents be filed and served on or before 5 February 2016.

22. The parties are to notify each other of any witnesses required for cross-examination on or before 9 February 2016.

23. The Applicant to file and serve any evidence in reply on or before 15 February 2016.

24. The Applicant to file and serve submissions including any submissions as to penalty on or before 22 February 2016.

25. The Respondents to file and serve any submissions including in answer to the issue of penalty on or before 29 February 2016.

26. Liberty to apply on 48 hours’ notice.

    The Court notes that:

    Subject to the grant of further leave, cross-examination of witnesses will be limited to half an hour.

    Subject to leave, oral submissions in respect of contravention will be limited to two hours for the respective parties.

    If the issue of penalty arises, subject to the determination of any application for adjournment, the issue of penalty will be dealt with immediately after the determination by the Court of the issue of the alleged contraventions including the making of any orders in respect of any underpayments.

    SYG3228/2013

27. Leave is granted to the Second Respondent to withdraw any admission of liability made in the transcript, court orders or any communication to the application.

28. Leave is granted to the Second Respondent to withdraw any admission made in response to either the statement of claim or in relation to the notice to admit facts.

29. The Second Respondents file and serve any defence to the statement of claim on or before 9 December 2015.

30. These proceedings be heard concurrently with the matters of Fair Work Ombudsman v Priority Matters Pty Ltd & Anor SYG3209/2013, Fair Work Ombudsman v Superlattice Solar Pty Ltd & Anor SYG3210/2013, Fair Work Ombudsman v Kia Silverbrook & Anor SYG1743/2014 and Fair Work Ombudsman v Mpowa Pty Ltd & Anor SYG1780/2014 and evidence in one matter will be evidence in the other matters.

31. All outstanding timetabling orders in each of the proceedings referred to above be vacated.

32. All matters be fixed for hearing before Judge Street in the week commencing 7 March 2016 at 10:00 am to be heard until concluded.

33. Any further affidavit evidence by the applicant be filed and served on or before 15 January 2016.

34. Any affidavit evidence in answer by the respondents be filed and served on or before 5 February 2016.

35. The parties are to notify each other of any witnesses required for cross-examination on or before 9 February 2016.

36. The Applicant to file and serve any evidence in reply on or before 15 February 2016.

37. The Applicant to file and serve submissions including any submissions as to penalty on or before 22 February 2016.

38. The Respondent to file and serve any submissions including in answer to the issue of penalty on or before 29 February 2016.

39. Liberty to apply on 48 hours’ notice.

    The Court notes that:

    Subject to the grant of further leave, cross-examination of witnesses will be limited to half an hour.

    Subject to leave, oral submissions in respect of contravention will be limited to two hours for the respective parties.

    If the issue of penalty arises, subject to the determination of any application for adjournment, the issue of penalty will be dealt with immediately after the determination by the Court of the issue of the alleged contraventions including the making of any orders in respect of any underpayments.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3209 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

PRIORITY MATTERS PTY LTD

First Respondent

KIA SILVERBROOK

Second Respondent

FIONA INVERARITY

Third Respondent

SYG 3210 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

SUPERLATTICE SOLAR PTY LTD

First Respondent

KIA SILVERBROOK

Second Respondent

SYG 3228 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

GENEASYS PTY LTD

First Respondent

KIA SILVERBROOK

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for the withdrawal of admissions by the first and second respondent in two proceedings and by the second respondent in a third proceedings that have been heard concurrently for the purpose of the application for withdrawal of admissions. 

2. The applicant commenced proceedings against the corporate respondent as the first respondent and the second respondent as an alleged director and alleged accessorial liability for certain alleged contraventions of the Fair Work Act 2009.  Each of the proceedings involve in substance the same alleged contraventions in terms of the provisions of the Act the subject of breach but involve different corporate entities and different employees. 

3. The three proceedings came before the Court on the first return date on 13 May 2014.  There is a dispute between the parties as to whether or not there was an admission of liability made on that occasion.  The transcript is less than satisfactory and fails to identify with any real clarity the nature and content of any formal admission as would be expected in civil penalty proceedings. 

4. Of more concern is the fact that the Court on that day made an order for service of a statement of facts and agreed statement of issues by a particular date.  That order in respect of that statement of agreed issues was extended on 24 July 2014.  The applicant in the proceedings served on the respondent a proposed statement of facts but failed to comply with and disregarded the second limb in respect of an agreed statement of issues in each proposed document sent to the respondents.  It is in that context that failure by the applicant that the dispute in the present case as to what admissions might or might not have been made arises. 

5. The applicant contends that there is an email communication identifying that there was to be an admission of liability sent by the legal representative of at least some of the respondents which referred to “instructions to agree to orders admitting liability”.  That email was sent the day before the directions hearing that took place on 13 May 2014.  Materially, no orders were made by the Court admitting liability. 

6. The first occasion on which an order by the Court refers to the admitting of liability is the result of a hearing in December at which the matter was being referred to mediation.  The second respondent asserts that he understood the request for admission of liability on that occasion to be something referable to the mediation that was taking place.  The matter is one in respect of which what occurred in December 2014 was again entirely unsatisfactory in terms of the clear identification of the nature of an admission being made in civil penalty proceedings. 

7. In the context of the failure of the applicant to have served a document purporting to identify issues, in my opinion the confusion in respect of what was and was not admitted so far as concerns the second respondent is entirely understandable.  The purpose of the statement of issues that was to be agreed was to permit the parties to focus their minds on what was or was not in dispute.  Where a party fails to comply with a Court order, as occurred in the present case insofar as the applicant did not serve upon the respondents any proposed document identifying proposed issues, the Court is entitled to take into account those circumstances in determining whether or not leave should be granted to withdraw any alleged admissions. 

8. The Court has power over its own process to advance the interests of the administration of justice and that includes the power to permit withdrawal of alleged admissions made in the conduct of the proceedings; see s.15 of the Federal Circuit Court Act 1999 (Cth).  In relation to the principles to be applied in respect of a withdrawal of admissions the Court has to be satisfied that there is good cause to withdraw the admissions and ultimately it is the question of the interests of the administration of justice that must determine the issue of withdrawal of admissions.  In the present case the second respondent also alleges that at the time of the alleged admissions advanced by the applicant the second respondent was labouring under a misapprehension as to whether there were any further proceedings to be brought. 

9. In fact two further proceedings have been brought by the applicant against two other companies and the second respondent in respect of which it is clear that there is a substantial overlap in relation to the nature of the issues that arise.  It was submitted that it was not relevant for the Court to take into account case management considerations in circumstances where an application for withdrawal of admissions of facts is advanced.  I reject that submission. 

10. The further factor the Court takes into account in the present case in relation to the withdrawal of admissions is the overlap with the two other proceedings in respect of which one of the proceedings has been fixed for hearing in March 2016 and the other proceedings potentially is to be heard by a different judge.  That would mean that there are three different judges of this Court dealing with in essence the same substratum of facts in respect of alleged contraventions of the Fair Work Act 2009. 

11. It was advanced that the difference in respect of corporate entity, different employee, strictly different issues of contravention and quantum in each case justified different judges hearing the different matters.  The problem with that issue is it is patent that the three matters before Judge Emmett had been travelling together. It is not appropriate as a matter of case management to have potentially three judges of this Court determining overlapping issues in respect of what appears to be the same underlying substratum of facts in terms of issues potentially relevant to the respective cases of liability of the companies and/or directors or director. 

12. I recognise that counsel for the applicant has identified that one of the other proceedings does not involve a corporate entity as a party and identifies a different director.  That is not a material distinction and is not a factor which, in my opinion, outweighs the case management considerations that arise in the present case in respect of contested issues of admissions of liability where there are two other proceedings in respect of which liability is in issue and those proceedings are, I am told, ready for hearing so far as concerns the applicant. 

13. Consistency in the exercise of judicial power is a fundamental doctrine derived from the rule of law.  The potential for inconsistent outcomes in the determination of the overlapping matters by three different judges is obvious.  That potential for inconsistent outcomes and the obvious inefficiency in use of Court resources does not advance the administration of justice.  The withdrawal of the admissions and determination of all overlapping matters by a single judge of the Court also accords with the principles in s.14 of the Federal Circuit Court Act 1999

14. I take into account the principles identified in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 and also the objects in r.1.03 of the Federal Circuit Court Rules 2001.  I have taken into account the principles referred to in the submissions of the respective parties and I understand the contention of the applicant that there is evidence in support of what the applicant contends are the actual facts the subject of admissions.  That is not a matter, in my opinion, which in the present case outweighs the interests of the administration of justice in permitting the admissions to be withdrawn. 

15. One of the issues raised by the second respondent in the context of the assertion of whether the admissions were deliberately made was the understanding that there were no other proceedings to be brought by the applicant.  I am not satisfied that the admissions were made deliberately.  I am not satisfied that the second respondent was aware of the other proceedings at the time of the alleged admissions in May.  I am not satisfied that the alleged admissions in December 2014 were made by the respondents otherwise than for the limited purpose of mediation.  I am satisfied that good cause has been shown to withdraw the purported admissions made on the transcript or to the Court or purportedly noted before the Court. 

16. The second aspect in relation to the application for withdrawal of admissions relates to the absence of the filing of a defence to the statement of claim.  In the circumstances of the present case it is by no means clear that there was any understanding or agreement that all issues on the statement of claim were being admitted.  No such fact is recorded in the transcript either on the first return date for directions or on the second return date in respect of the three matters the subject of these interlocutory applications. 

17. In these circumstances I am satisfied that there is good cause to permit any admission that might have been made by the failure to file a defence to be withdrawn. The Court proposes to make directions requiring the filing of a defence in respect of the respective proceedings and giving the respondents leave to withdraw any admissions that might otherwise have been deemed to be made. 

18. A third issue raised in respect of the application to withdraw admissions arises from a notice to admit facts served in the three proceedings upon the second respondent the day before a return date in 2015 and at a time at which it had just become apparent that the second respondent was no longer legally represented.  I am satisfied that in those circumstances in the context of the uncertainty that had already taken place in respect of admissions of liability and the absence of identification of a statement of issues or proposed statement of issues by the applicant that again good cause has been shown for the withdrawal of the admissions made in answer to the notice to admit facts.  I propose to make a direction permitting the respondents to file a further notice in answer to the notice to admit facts if the notice to admit is to be pursued and granting leave to withdraw any admissions made by the respondents in answer to the earlier service of the notice to admit facts. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 December 2015