Fair Work Ombudsman v Redmond trading as Cleaning Excellence
[2021] FedCFamC2G 123
•14 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Fair Work Ombudsman v Redmond trading as Cleaning Excellence [2021] FedCFamC2G 123
File number(s): SYG 1809 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 14 October 2021 Catchwords: INDUSTRIAL LAW – Fair Work – Interlocutory Application – Examination. Legislation: Fair Work Act 2009 (Cth)
Civil Procedure Act 2005 (NSW), s 108Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 25.11
Federal Circuit Court Rules 2001 (Cth), rr 29.11, 41.10
Uniform Civil Procedure Rules 2001 (NSW), r 38.2Cases cited: Deputy Commissioner of Taxation v Gould [2020] FCA 337
Fair Work Ombudsman v Scott Redmond t/as Cleaning Excellence [2019] FCCA 3697Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 5 October 2021 Place: Parramatta Counsel for the Applicant: Mr Cleary Solicitor for the Applicant: Fair Work Ombudsman Appearance for the Respondent: No Appearance ORDERS
SYG 1809 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: REDMOND TRADING AS CLEANING EXCELLENCE
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pursuant to Rule 25.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 and section 108 of the Civil Procedure Act 2005 (NSW), the Respondent attend before the Court at 10:15am on 1 February 2022, 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 Respondent;
(b)whether the Respondent has any and, if so, what other property or other means of satisfying orders 3 and 4 made by the Court in this proceeding on 8 March 2019 and orders 1 and 2 made by the Court in this proceeding on 19 December 2019 (Payment Orders) and his liability to pay interest pursuant to section 212 of the Federal Circuit and Family Court of Australia Act2021 (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.
2.Pursuant to Rule 25.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 and section 108 of the Civil Procedure Act 2005 (NSW), the Respondent is ordered by 4pm on 18 January 2022 to produce any document or thing in the possession, custody or power of the Respondent relating to the material questions, including but not limited to the documents listed in the Annexure to this Order.
3.Costs are reserved.
THE COURT NOTES THAT:
A. Interest continues to be payable on the Payment Orders pursuant to section 212 of the Federal Circuit and Family Court of Australia Act 2021 and Rule 39.06 of the Federal Court Rules 2011.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 OBRADOVIC:
The applicant, the Fair Work Ombudsman (“FWO”), by way of an application filed 13 July 2021, seeks orders that the respondent, be required to attend before the Court to be orally examined. On 20 July 2021, the respondent was personally served with the application and affidavit in support. The respondent did not appear at the hearing of the application nor has he filed any material in response to it.
On 8 March 2019, the Court made a number of declarations and orders arising out of the respondent’s failure to comply with his obligations under the Fair Work Act 2009 (“FW Act”). The respondent did not appear at the hearing and the orders were made in his absence. The orders, inter alia, required the respondent to make payment to two employees in a specified amount. On 19 December 2019, the Court ordered that the respondent pay pecuniary penalties totalling $17,190. Reasons for judgment in respect of penalty were published on the same day.
As at the date of the hearing of the interlocutory application, the respondent has not made any payments in accordance with orders of this Court of either 8 March 2019 or 19 December 2019, and he has failed to comply with the balance of the orders made on 8 March 2019.
What the respondent has done however, is to communicate with the FWO in a manner which is reflective of the findings made by the Court on 19 December 2019 (See Fair Work Ombudsman v Scott Redmond t/as Cleaning Excellence [2019] FCCA 3697 at [28]-[30] including the footnotes). At present, the respondent’s conduct includes:
•demanding addresses of FWO employees so that he could serve them with civil proceedings he was apparently going to commence;
•alleging that his former employees had committed fraud without substantiation;
•stating that he refused to pay “a corrupt Government Department”
•stating that he was prepared to go to jail rather than co-operate, and
•threatening baseless complaints to the “Ombudsman, the Federal Minister responsible for Fairwork, my local MP and your superiors” following the FWO sending documents addressed to Mr Redmond at all addresses associated with him, where he had previously not responded to documents sent to him.
The FWO brings the current application to aid in the recovery of the amounts the Court ordered the respondent to pay. The FWO submits that by conducting an oral examination of the respondent and requiring him to produce various specified documents, will allow for a better understanding of the respondent’s asset position and his ability to meet the payments required.
Relevant Law
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) make no specific provision for a person bound by a judgment or order to attend Court and be orally examined as to any material questions or produce any document. What the Rules do however, is to provide in Rule 25.11(1) as follows:
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.
The relevant orders of this Court were made in the State of New South Wales.
Rule 25.11 of the Rules replaces the now repealed Rule 29.11 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). Rule 25.11 is very similar to Rule 41.10(1) of the FCC Rules.
It is therefore open to the FWO to apply to this Court for an order for enforcement as provided for in section 108(1) of the Civil Procedure Act 2005 (NSW) (“CPA”) as those are means of enforcement of a judgment or order taken in the Supreme Court of New South Wales.
Section 108(1) of the CPA provides that the Supreme Court of New South Wales may make an order requiring a person bound by a judgment or order to attend the Court to be orally examined as to any material question or to produce any document or thing that is in his personal possession that relates to a material question.
“Material question” for the purposes of section 108(1) of the CPA is defined in section 108(5), and includes questions as to whether any and if so, what debts are owing to that person and questions as to whether that person has any and if so, what other property or other means of satisfying the judgment or order.
The Uniform Civil Procedure Rules 2001 (NSW) (“UCPR”) provide the matters which must be addressed in an affidavit in support of an application for an order being made pursuant to section 108(1) of the CPA:
(1) An application for an order for examination with respect to the enforcement of a judgment or order must be supported by an affidavit as to the following matters--
(a) that the judgment or order remains unsatisfied,
(b) that the applicant has served an examination notice on the person bound by the judgment or order but that person has failed, within the time limited by the notice--
(i) to provide any or sufficient answers to the questions specified in the notice, or
(ii) to produce any or sufficient documents for inspection by the applicant, as to any material questions,
(c) that the person bound by the judgment or order has not, within the previous 3 months, provided any or sufficient answers, or produced any or sufficient documents, in response to any previous examination notice,
(d) in the case of a judgment or order for the payment of money, whether or not an instalment order has previously been made in relation to the amount payable under the judgment or order and, if such an order has been made, that the person bound by the judgment or order has failed to comply with the instalment order.
(2) The provisions of subrule (1)(b) and (c) do not apply in relation to a judgment or order of the Supreme Court.
(3) Unless the court otherwise orders, an application under this rule--
(a) may be dealt with in the absence of the parties, and
(b) need not be served on the person bound by the judgment or order.
(UCPR Rule 38.2.)
Rule 25.11(1) of the Rules makes it clear that for the purposes of taking enforcement action, the judgement or order sought to be enforced is to be treated as if it were a judgment or order of the Supreme Court of New South Wales. Consequently, the provisions of sub-rule (1)(b) and (c) of the UCPR Rule 38.2 do not apply.
In Deputy Commissioner of Taxation v Gould [2020] FCA 337 at [4], the Federal Court of Australia noted as follows:
Rule 41.10(1) of the FC Rulesempowers the Court to make an order in aid of the enforcement of a judgment of the Court as if the judgment was a judgment of the Supreme Court in the relevant State or Territory in which the judgment was obtained, which, in this case, was New South Wales. Section 108 of the Civil Procedure Act 2005 (NSW)relevantly provides that the Supreme Court of New South Wales may order a person bound by a judgment to attend before the Court and be orally examined on the “material questions”, namely what debts are owed to the judgment debtor and what property that person has or other means they have of satisfying the judgment. Part 38 of the Uniform Civil Procedure Rules 2005 (NSW) stipulates how an application for an examination order is to be made and the process for the examination of a judgment debtor in the Supreme Court of New South Wales.
As such, the Court has the power to make the orders sought.
Determination
There have been numerous and meaningful attempts by the FWO to ascertain details surrounding the financial circumstances of the respondent, including the issuing of an examination notice. The respondent has refused to comply with the examination notice, and he has yet to comply with the orders made by this Court.
The FWO has taken all reasonable steps to obtain from the respondent and third party sources, information that may answer those material questions that the FWO seeks answers to.
In all of the circumstances, and particularly noting the respondent’s recalcitrance, it is appropriate for orders to be made as sought by the applicant.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Dated: 14 October 2021
“Annexure”
For the purposes of this Annexure, Relevant Period means from 8 March 2019 to the date of the orders to which this Annexure is attached.
Income
1Your personal income tax returns and notices of assessment from the Australian Taxation Office for the financial years ending 30 June 2018, 30 June 2019, and 30 June 2020.
2Any document relevant to Earnings that you have received or may receive during the Relevant Period including:
a.Payslips received from any employer;
b.Payment summaries received from any employer;
c.Deposit receipts;
d.Minutes of any meeting in which a dividend was declared in your favour;
e.Trust resolutions in which a distribution was made in your favour, and
f.Contracts entered into by you or an associated entity in respect of which you received earnings.
“Earnings” in this category includes, but is not limited to, income from the following:
g.wages;
h.consulting income;
i.director fees and/or any other payments received from the following entities:
i.Cleaning Excellence Pty Ltd ACN 634 274 874;
ii.ABN 55 878 510 418;
iii.ABN 58 384 293 613; and
iv.Any other entity for which you were a shareholder or director during the Relevant Period.
j.Trust income/benefits received; and
k.Centrelink.
3Copies of Tax returns, Business Activity Statements, Profit & Loss Statements and Balance Sheets for the financial years ending 30 June during the Relevant Period relating to the following entities:
a.Cleaning Excellence Pty Ltd ACN 634 274 874;
b.ABN 55 878 510 418;
c.ABN 58 384 293 613; and
d.Any other entity for which you were a shareholder or director during the Relevant Period.
4Copies of all supplier and/or trade agreements in place during the Relevant Period between you and third party suppliers for the provision of goods and/or services.
5For any Trust in relation to which you were a trustee or a beneficiary during the Relevant Period, a copy of the trust deed and copies of any documents showing the distribution of income by the Trust during the Relevant Period.
Assets
6Copies of the certificates of title for all property owned by you, whether individually or jointly, at any point during the Relevant Period.
7Copies 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 and current balance during the Relevant Period; and
c.Documents showing the source of funds used to make the mortgage payments.
8Copies of all valuation reports or other documents recording the value during the Relevant Period of any property identified in response to paragraph 6 above.
9Copies 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.
10Copies 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.
11In respect of all vehicles (including cars, motorbikes, buses, trailers and boats) owned and/or leased by you, whether 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(s); and
c.Documents showing the value of the vehicles(s).
12In respect of any shares owned by you during the Relevant Period, copies of:
a.All share certificates and documents evidencing ownership;
b.Any historical statement of purchases and shares, including those that have been sold, for the Relevant Period; and
c.Records of any dividends received or expected.
13For 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
14Copies 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 payment history; and
c.Documents showing the source of funds used to make the rental payments.
15Copies 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.
16Copies 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.
17For all business fixtures and equipment owned and/or leased, either jointly or individually, by you, ABN 55 878 510 418 or ABN 58 384 293 613 during the Relevant Period, copies of:
a.Any purchase agreements or lease agreements or other documents showing:
i.Owner and/or lessee; and
ii.Purchase date and price;
b.Documents showing any sale or transfer or ownership or lease of the asset; and
c.Documents showing the current value of the asset.
Expenses
18In respect of living expenses incurred during the Relevant Period, 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, disability insurance, income protection insurance, motor vehicle insurance, home and/or contents insurance); and
f.Education and/or childcare.
19In respect of household contributions made by any person other than you during the Relevant Period, statements demonstrating amounts of contribution and frequency such as bank statements or payslips of any contributory.
20In 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.
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