Fair Work Ombudsman v Safecorp Security Group Pty Ltd and Anor (No.2)

This matter concerned an application by the Fair Work Ombudsman (FWO) for leave to reopen its case against Mr Lohr, following earlier declarations made against Safecorp Security Group Pty Ltd (SSG). The FWO sought these declarations against SSG pursuant to rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) on the basis that SSG had not filed a defence. However, Mr Lohr had filed a defence, disputing allegations of fact on which the FWO relied to claim SSG contravened section 45 of the *Fair Work Act 2009* (Cth) and that Mr Lohr was involved in those contraventions.

The central legal issue before the court was whether declarations made against SSG, in circumstances where Mr Lohr had filed a defence and disputed the underlying facts, were binding on Mr Lohr. This question arose because the court had previously concluded that the declarations were not binding on Mr Lohr as he was not "in default" for the purposes of rule 13.03B(2)(c).

The court, in considering the FWO's application for leave to reopen, relied on a previous decision by Bromwich J. Bromwich J had upheld the FWO's submission that the declarations were indeed binding on Mr Lohr, notwithstanding that Mr Lohr was not in default and had filed a defence. This conclusion was based on two key reasons. Firstly, Mr Lohr had received notice of the FWO's intention to seek default judgment against SSG, which alerted him to the FWO's pursuit of declarations against SSG. This notice was considered sufficient to put Mr Lohr on notice and afford him an opportunity to oppose the declarations, thereby making him a "contradictor" in the necessary sense for the lawful making of the declarations. Secondly, and perhaps more importantly, Bromwich J viewed the declarations as having a legal effect that extended beyond the procedural mechanism for their making. His Honour reasoned that declarations, by their terms, declare rights relevant to the interests of parties like Mr Lohr, and unless set aside, must be given effect according to their terms, irrespective of whether there had been a trial of the disputed facts. The court found that the "trigger mechanism" for making declarations cannot limit their legal impact, which is determined by the face of the order itself.