Fair Work Ombudsman v Sinpek Pty Ltd and Ors (No.2)

[2019] FCCA 630

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SINPEK PTY LTD & ORS (No.2) [2019] FCCA 630

Catchwords:
PRACTICE AND PROCEDURE – Privilege against self-incrimination in respect of protection – proceedings by way of affidavit – procedural directions preserving the privilege – leave preserved to consider further evidence upon close of applicant’s case.  

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

Australian Competition Consumer Commission v FFE Building Services Ltd (2003) 130 FCR 37
Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32
Reid v Howard (1995) 184 CLR 1

Applicant: FAIR WORK OMBUDSMAN

First Respondent: SINPEK PTY LTD (ACN 163 426 854)

Second Respondent: KAMALDEEP SINGH

Third Respondent: UMA SINGH

Cross Respondent: SANDEEP SINGH DHARIWAL

File Number: SYG 2187 of 2018

Judgment of: Judge Street

Hearing date: 14 March 2019

Date of Last Submission: 14 March 2019

Delivered at: Sydney

Delivered on: 14 March 2019

REPRESENTATION

Counsel for the Applicant: Mr M Easton

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondent: Mr I Latham

Solicitors for the Respondent: Taylor & Scott Lawyers

ORDERS

1. The further amended cross-claim is struck out under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

2. The costs of the strike out application are reserved.

3. The evidence in chief in this matter is to proceed by way of affidavit. Cross examination will be limited to half an hour without further leave.

4. The Applicant is to file and serve any affidavit material upon which she intends to rely in relation to liability and penalty on or before 6 May 2019.

5. Each of the Respondents are to file and serve on or before 14 June 2019:

   (a)any affidavit material upon which they intend to rely in relation to liability and penalty subject to any claim based on a privilege against exposure to civil penalty;

   (b)any Amended Defence in accordance rule 16.02 of the Federal Court Rules 2011 subject to any claim based on a privilege against exposure to civil penalty;

6. To the extent that order 5a is complied with the Second and Third Respondents are precluded from filing any further affidavit evidence on penalty or contravention without the leave of the Court.

7. The Applicant is to file and serve any affidavit material strictly in reply to the respondents’ affidavits and written submissions on the issues of liability and penalty on or before 5 July 2019.

8. Each of the Respondents are to file and serve any written submissions upon which they intend to rely on the issue of liability and penalty on or before 19 July 2019 subject to any claim based on a privilege against exposure to civil penalty.

9. Each party is to file and serve any objections to affidavits and grounds of objections on or before 26 July 2019.

10. If either party requires a deponent to an affidavit to be made available for cross-examination, that party shall notify the other in writing on or before 1 August 2019.

11. Oral submissions will be limited to half an hour without further leave.

12. The parties have liberty to apply on 2 days’ notice.

DATE OF ORDER: 14 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2187 of 2018

FAIR WORK OMBUDSMAN

Applicant

And

SINPEK PTY LTD (ACN 163 426 854)

First Respondent

KAMALDEEP SINGH

Second Respondent

UMA SINGH

Third Respondent

SANDEEP SINGH DHARIWAL

Cross Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 6 August 2018 and on 7 February 2019, this Court made orders fixing the matter for hearing on 8 August 2019. There was a pleading issue in relation to cross-claim which has been addressed in separate reasons. The issue that is now before the Court are the procedural orders in respect of the hearing date. The second and third respondents wish to maintain an alleged right to elect whether to put on any evidence until the close of the applicant’s case on the grounds of privilege against self-incrimination in circumstances where the proceedings are the subject of an order that they proceed by way of affidavit. This would necessarily give rise to a bifurcated hearing on different days.

2. Mr Latham of counsel on behalf of the respondent has taken the Court to the principles identified importantly by the High Court in Reid v Howard (1995) 184 CLR 1 relevantly at [5] and that the Court cannot abrogate or override the privilege against self-incrimination in respect of civil penalties in substance for the same reasons as identified by the High Court in respect of privilege against self incrimination in respect of criminal proceedings. Mr Latham has taken the Court to the decision in Australian Competition Consumer Commission v FFE Building Services Ltd (2003) 130 FCR 37 relevantly at [14] and in particular the reference to:

   By requiring an individual respondent, prior to the closure of an applicant's case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent.

3. Mr Latham submits that there should be no requirement for the second and third respondents to put on their amended defence or affidavit evidence until the close of the applicant’s case.

4. Mr Latham also took the Court to the decision of the learned Finkelstein J in Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32 relevantly at [11] to [14] (“ASIC v Mining Projects”) and the principles behind the privilege and submitted that the applicant must prove the case without assistance from the defendant and that the defendant cannot be compelled to make admissions in relation to the matters alleged against him.

5. That authority makes reference to how that privilege aids to relieve the defendant from the rules in respect of a defence which might otherwise override the privilege. Reference was also made in that authority to the issue of a positive defence and the proposition that if the defendant wishes to run a positive case that can be accommodated while maintaining the privilege. The reasoning includes the proposition:

   What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff’s case is concluded. If at that point the defendant decides to run a positive case he can deliver an amended defence that will outline his case.

6. The reasoning included the proposition that in exceptional case the Judge may grant a short adjournment to allow the plaintiff time to prepare. The reasoning included that by the time the plaintiff has closed the case, the nature of the defence will usually be apparent. It is clear from the reasoning in ASIC v Mining Projects that what was anticipated by the learned Finkelstein J was not that there would be a bifurcated hearing on different days but rather that the hearing would be immediately able to proceed.

7. There is no binding authority on this Court that prevents the Court making orders to the effect of bringing forward, prior to the close of the applicant’s case, the need for the respondents to make an election as to whether they wish to waive the privilege in respect of civil penalties where the proceedings are the subject of orders for evidence by affidavit. The orders by the Court in the present case are ones in which the proceeding is being conducted by way of affidavit. If, in fact, the proposal identified by the second and third respondents were to be followed, it would inevitably give rise to a substantial adjournment of the proceedings engaging further delay and the need to obtain a further hearing date. The hearing as a matter of process and case management is in control of the Court. The proposed orders by the Court do not in any way mandate abrogation of the privilege.

8. The Court orders preserve the privilege to the extent that the second and third respondents seek to maintain the same. The Court does not accept that where the matter is proceeding by way of affidavit and the whole of the applicant’s affidavit case has been served it is not appropriate for the Court to make orders, subject to leave of the Court, that preclude the second and third respondents from filing any further affidavit evidence on contravention and penalty to the extent that they have not complied with the orders giving them an opportunity to do so. The Court does not regard any such order as abrogating the privilege.

9. Further, given the existence of the applicant’s case in affidavit form, the second and third respondents are in a position to consider whether they wish to waive their privilege. There may be certain circumstances in which it can be identified that because of a particular issue it was reasonable and necessary for the respondents not to file evidence at that point of time. The respondents have the ability pursuant to the leave that has been identified to seek to adduce further evidence, and whether if leave is granted it will be allowed in affidavit or oral form. The nature of the grant of leave would depend upon the circumstances at that time and would be a matter for the Court.

10. By reason of leave the Court preserves the ability of the second and third respondents even at the close of the applicant’s case to make application for an opportunity to adduce further evidence. It will be a matter for the Court at that time, depending on the circumstances, to determine whether the Court would grant such leave and whether the Court would require the evidence to be adduced forthwith in oral form or by way of affidavit. This Court has a very large volume of Fair Work matters. This Court has a very significant volume of other matters in the Court.

11. The disruption and delay that would flow from the proposed orders by bifurcating the hearing on different days from the proposed orders by the second and third respondents has the potential to substantially delay the determination of proceedings brought under the Fair Work Act 2009 (Cth) (“the Act”). In general these proceedings are important matters that should be determined as soon as reasonably practicable and while not of the same urgency as bankruptcy matters they are often brought by individual employees or former employees, with limited assets and limited means of sustenance, who are seeking recovery of alleged employment entitlements. It is necessary to try and ensure prompt hearings for matters under the Act.

12. Whilst the Court can understand and accepts that in criminal proceedings there is a logic behind the proposition that no election should be required prior to the close of the prosecution case, those are in circumstances where the case is proceeding orally as opposed to the position here by way of affidavit. Materially in such criminal proceedings, there is no procedural consequence that would cause a bifurcation and separate hearing days and substantive delay such as would occur in the present case. That issue has not been addressed in the authorities to which the second and third respondents have referred. The reasoning of the learned Finkelstein J is entirely consistent with a process that would permit the matter to continue at the one hearing. That could not occur in the circumstances of the present case if the second and third respondents are not the subject of appropriate case management orders giving the opportunity to serve affidavit evidence subject to leave.

13. Further, the second and third respondents are not being put to a final binding election but are rather as a matter of case management are being given the opportunity to make a forensic choice as to whether the Court will grant leave to permit further evidence on contravention and penalty to be adduced where order 5(a) has not been complied with on that topic. That forensic choice where the matter is by way of affidavit is informed by the applicant’s affidavit evidence in chief having been served. I do not regard these orders as being inconsistent with any binding principle upon this Court identified in the authorities referred to. I regard the proposed orders as being appropriate for the proper and efficient administration of this particular Fair Work matter before this Court.

14. Mr Latham of counsel also objected to the requirement that the submissions address the issue of liability and penalty and that the affidavit material address both liability and penalty. For the reasons earlier given, the Court is satisfied that the proposed orders do not abrogate the privilege but will permit the orderly and efficient hearing of the matter before the Court and in particular if appropriate final determination of all issues on one day.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2019