Fair Work Ombudsman v South Jin Pty Ltd - [2013] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SOUTH JIN PTY LTD & ORS

[2013] FCCA 1057

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of civil penalty provisions of the Fair Work Act and Workplace Relations Act – trolley collectors at various supermarket sites underpaid and their statutory and award entitlements not met – first respondent admits contraventions – other respondents bring applications to summarily dismiss claim – legal requirements for summary dismissal – respondents said to be liable as being knowingly concerned or party to the contraventions – what constitutes being knowingly concerned with contraventions.

Legislation:
Workplace Relations Act 1996
Fair Work Act 2009
Federal Circuit Court of Australia Act 1999
Federal Court of Australia Act 1976
Federal Circuit Court Rules 2001
Migration Litigation Reform Act 2005

Evidence Act 1995 (Cth)

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HAS 69
Howard v Australian Fisheries Management Authority [2006] FMCA 975
Spencer v The Commonwealth [2010] 241 CLR 118
Three Rivers District Council v Bank of England (No.3) [2003] 2AC1
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & Ors (2008) 167 FCR 732
Boston Commercial Services Pty Ltd & GE Finance Australasia Pty Ltd [2006] FCA 1352
Yorke & Anor v Lucas (1983-1984) 158 CLR 661
Giorgianni v The Queen (1985) 156 CLR 473
R v Tennous (1987) 10 NSWLR 303
Rural Press Ltd v ACCC (2003) 216 CLR 53
Rafferty v Madgwicks (2012) 287 ALR 437
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
ABCC v Abbott (No.4) (2011) 211 IR 267
Dowling v Kirk [2007] FMCA 2106
ACCI v IMB Group Pty Ltd [2003] FCAFC 17

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SOUTH JIN PTY LTD (ACN 133 198 099)

Second Respondent:

KI BOK JIN

Third Respondent:

COASTAL TROLLEY SERVICES PTY LTD (ACN 100 786 909)

Fourth Respondent:

EDWARD STROOP

File Number:

ADG 159 of 2011

Judgment of:

Judge Lindsay

Hearing date:

17 December 2012

Date of Last Submission:

18 December 2012

Delivered at:

Adelaide

Delivered on:

15 August 2013

REPRESENTATION

Counsel for the Applicant:

Ms Richards of Counsel

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the First Respondent:

No Appearance

Counsel for the Second Respondent:

Mr Manuel of Counsel

Solicitor for the Second Respondent:

WBH Legal Solicitors

Counsel for the Third and Fourth Respondents:

Mr Lazarevich of Counsel

Solicitor for the Third and Fourth Respondents:

Camatta Lempens Pty Ltd Lawyers

ORDERS

The applications of the second, third and fourth respondents for summary dismissal of the applicant’s claim is refused.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 159 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

SOUTH JIN PTY LTD (ACN 133 198 099)

First Respondent

KI BOK JIN

Second Respondent

COASTAL TROLLEY SERVICES PTY LTD (ACN 100 786 909)

Third respondent

EDWARD STROOP

Fourth Respondent

REASONS FOR JUDGMENT

These proceedings involve an application by the Fair Work Ombudsman (herein after “the applicant”) in which orders are…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v South Jin Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FCCA 1057
Decision Date: 15 August 2013

CaseChat Overview and Summary

The Federal Circuit Court of Australia, presided over by Judge Lindsay, considered an application for summary judgment. The case involved the Fair Work Ombudsman as the prosecuting party and South Jin Pty Ltd as the defending party. The core of the dispute, though not explicitly detailed, concerned the prospect of South Jin Pty Ltd successfully defending the proceeding brought against it.

The primary legal issue before the Court was whether South Jin Pty Ltd had any reasonable prospect of successfully defending the proceeding, as contemplated by section 17A of the *Federal Circuit Court of Australia Act 1999*. This section allows the Court to grant summary judgment if satisfied that the defending party has no reasonable prospect of success. The Court also considered the scope of its powers under this section, including whether it was limited to cases where a defence was "hopeless" or "bound to fail," and the relevance of older High Court authorities on inherent jurisdiction.

Judge Lindsay's reasoning drew upon the principles established in *Dey v Victorian Railways Commissioners*, where Dixon J articulated the basis for summary dismissal as an exercise of the court's inherent jurisdiction to prevent abuse of process. The Court noted that while a case must be "very clear indeed" to justify summary intervention, the mere intricacy of a transaction does not preclude examination. Crucially, if a "real question to be determined, whether of fact or law," exists upon which the parties' rights depend, the Court cannot dismiss the action as frivolous, vexatious, or an abuse of process. The Court's powers under section 17A are also reflected in Rule 13.10 of the Rules of Court, which permits summary dismissal if a proceeding is frivolous, vexatious, or an abuse of process, or if the prosecuting party has no reasonable prospect of success.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 17A of the Federal Circuit Court of Australia Act 1999 provides 17A Summary judgment(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is prosecuting the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is defending the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section. This section is in identical terms to s.31A of the Federal Court of Australia Act 1976, save for the fact that the Act creating this Court has no subsection (5) – a reference to criminal proceedings. It will be noted that subsection (4) provides that the powers given by the section do not limit any powers that the Court otherwise has. This is why the older High Court authorities, dealing with the inherent jurisdiction of the Court, are still relevant. I will return to this in a moment by reference to older High Court authority. The powers given by s.17(A) are reflected in the Rules of Court. Specifically, Rule 13.10 of the Rules of Court provide in relation to disposal by summary dismissal as follows: The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or(b)the proceeding or claim for relief is frivolous or vexatious; or(c)the proceeding or claim for relief is an abuse of the process of the Court. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 Dixon J (as he then was) said in relation to summary dismissal generally as follows at:The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.