Fair Work Ombudsman v Quincolli Pty Ltd - [2012] FMCA 712

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v QUINCOLLI PTY LTD & ANOR

[2012] FMCA 712

PRACTICE AND PROCEDURE – Application to re-open case based upon new evidence.

Federal Magistrates Court Rules 2001 (Cth)

Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139

Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No.3) [2009] FCA 82
Quincolli Pty Ltd v Fair Work Ombudsman [2012] FCA 373

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

QUINCOLLI PTY LTD

ACN 003 371 097

Second Respondent:

JUDITH MADGE POTTER

File Number:

SYG 1898 of 2010

Judgment of:

Driver FM

Hearing date:

8 August 2012

Date of Last Submission:

27 August 2012

Delivered at:

Sydney

Delivered on:

29 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms C Howell

Solicitors for the Applicant:

Fair Work Ombudsman

The Second Respondent appeared in person and on behalf of the First Respondent

INTERLOCUTORY ORDERS

The Application in a Case filed on 6 August 2012 is dismissed.
Costs of the Application in a Case are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1898 of 2010

FAIR WORK OMBUDSMAN

Applicant

And

QUINCOLLI PTY LTD

First Respondent

JUDITH MADGE POTTER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

On 27 August 2010 the Fair Work Ombudsman commenced proceedings against the respondents concerning the alleged underpayment of employees in a call centre operated by the respondents. On 28 November 2011 I gave judgment in favour of the Fair Work Ombudsman on the issue of liability[1]. The respondents unsuccessfully sought leave to appeal to the Federal Court from that judgment[2].
[1] Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139
[2] Quincolli Pty Ltd v Fair Work Ombudsman [2012] FCA 373
On 16 December 2011 I gave orders to prepare for a hearing on the issue of penalty. Those orders were subsequently amended. The matter is currently listed for a hearing on penalty on 6 September 2012.
In July 2012, it came to the Court’s attention that the respondents were interested in reopening their case in relation to liability. On 1 August 2012 I directed that any application to reopen the case on liability be in the form of an Application in a Case, to be filed and served in accordance with the Federal Magistrates Court Rules 2001 (Cth). Such an Application in a Case was filed on 6 August 2012. It is supported by the affidavits of Judith Madge Potter made on 26 May 2012 (filed on 6 August 2012) and the affidavit of John Michael Parnell made on 27 June 2012 (filed on 6 August 2012). Mrs Potter filed a further affidavit on 20 August 2012 in the evident expectation that it would be taken into account. Although I gave no leave for further evidence to be filed, I have taken that additional affidavit into account.
The Application in a Case came before me for hearing on 8 August 2012. Mrs Potter appeared on behalf of the respondents and sought an adjournment. Having regard…

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.

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Details

Case: [2012] FMCA 712
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case before the Federal Magistrates Court of Australia involves an application by the Fair Work Ombudsman to reopen a case against Quincolli Pty Ltd and Judith Madge Potter. The original proceedings concerned alleged underpayment of employees in a call centre operated by the respondents. The Fair Work Ombudsman had previously obtained a judgment in its favour on the issue of liability, which the respondents unsuccessfully sought to appeal. The respondents now sought to reopen the case on liability based on new evidence. The central legal issue before the court was whether the respondents were entitled to reopen their case based on the new evidence, considering the principles governing such applications.

The court considered the principles established in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No.3), which outline that a court has the jurisdiction to permit a party to reopen their case to adduce further evidence, even after the case in evidence has closed. The guiding principle is whether the interests of justice are better served by allowing or rejecting the application. The court evaluated the new evidence, which was a printout of an account with the Office of the Employment Advocate, and concluded that it did not warrant reopening the case on liability. The evidence did not cast doubt on the previous finding that no Australian Workplace Agreements were lodged in accordance with statutory requirements. Furthermore, reopening the case would delay the imminent penalty hearing, which the court deemed inappropriate. Therefore, the court dismissed the application to reopen the case on liability.

The court ordered that the application to reopen the case be dismissed, with the costs of the application reserved. This decision was based on the principle that the interests of justice would not be served by reopening the case, given the new evidence did not challenge the previous findings and the impending penalty hearing. The court emphasized the importance of not unduly delaying the penalty hearing for what could be a speculative reopening of the case on liability.

Orders