Fair Work Ombudsman v Sushi Bay Pty Ltd - [2023] FCA 548

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Sushi Bay Pty Ltd [2023] FCA 548

File number(s): NSD 122 of 2022

Judgment of: WIGNEY J

Date of judgment: 1 June 2023

Catchwords: INDUSTRIAL LAW – Fair Work Ombudsman seeking to proceed in underpayment action against insolvent corporate respondents – s 471B application for leave to proceed against companies in liquidation – application granted

Legislation:
Corporations Act 2001 (Cth) s 471B

Fair Work Act 2009 (Cth)

Fair Work Regulations 2009 (Cth)

Restaurant Industry Award 2010

Cases cited:
Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521

Australian Securities and Investments Commission v Union Standard International Group Pty Ltd (No 2) [2020] FCA 1871

Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356

Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd [1997] FCA 1484

Re Gordon Grant & Grant Pty Ltd (1983) 7 ACLR 669; [1983] 2 Qd R 314

Rushleigh Services Pty Ltd v Forge Group Ltd (In Liq) [2016] FCA 1471

Vagrand Pty Ltd (In Liq) v Fielding (1993) 41 FCR 550

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 26

Date of hearing: 15 May 2023

Counsel for applicant: Ms V Bridgen

Solicitor for applicant: Fair Work Ombudsman

Solicitor for fifth respondent: Mathas Law

ORDERS

NSD 122 of 2022

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
SUSHI BAY PTY LTD (ACN 121 977 419)

First Respondent

SUSHI BAY ACT PTY LTD (ACN 160 778 772)

Second Respondent

AUSKOBAY PTY LTD (ACN 156 242 063)
Third Respondent

AUSKOJA PTY LTD (ACN 146 264 566)

Fourth Respondent

MS YI JEONG SHIN
Fifth Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

1 JUNE 2023

THE COURT ORDERS THAT:
1.The applicant be granted leave to proceed as against the first, second, third and fourth respondents pursuant to s 471B of the Corporations Act 2001 (Cth).
2.The name of the first respondent be amended to read “Sushi Bay Pty Ltd (ACN 121 977 419) (in liquidation)”.
3.The name of the second respondent be amended to read “Sushi Bay ACT Pty Ltd (ACN 160 778 772) (in liquidation)”.
4.The name of the third respondent be amended to read “Auskobay Pty Ltd (ACN 156 242 063) (in liquidation)”.
5.The name of the fourth respondent be amended to read “Auskoja Pty Ltd (ACN 146 264 566) (in liquidation)”.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
WIGNEY J:

The applicant in this matter, the Fair Work Ombudsman, seeks leave to proceed against the first to fourth respondents, Sushi Bay Pty Ltd, Sushi Bay ACT Pty Ltd, Auskobay Pty Ltd and Auskoja Pty Ltd (collectively the corporate respondents) pursuant to s 471B of the Corporations Act 2001 (Cth).
Nature of the proceeding
The Ombudsman commenced this proceeding in February 2022. The…

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 Sushi Bay 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: [2023] FCA 548
Decision Date: 1 June 2023

CaseChat Overview and Summary

The Fair Work Ombudsman sought leave to proceed with an underpayment action against four corporate respondents, all of which were in liquidation. The court was asked to consider whether it could grant leave to the applicant under section 471B of the Corporations Act 2001 (Cth). The legal issues before the court were whether it had the requisite jurisdiction to grant leave to the applicant and whether granting leave was in the interests of justice. The court held that it had jurisdiction to grant leave and that it was in the interests of justice to do so, given the public interest in enforcing workplace laws and the potential for harm to affected employees if leave was not granted. The application was therefore granted, with orders that the names of the respondents be amended to reflect their status as companies in liquidation.

The court found that it had jurisdiction to grant leave under section 471B of the Corporations Act, which provides that the court may grant leave to the Fair Work Ombudsman to proceed with an action against a company in liquidation if it considers it appropriate to do so. The court also considered whether granting leave was in the interests of justice, taking into account the public interest in enforcing workplace laws and the potential for harm to affected employees if leave was not granted. The court held that it was appropriate to grant leave, as the applicant had demonstrated a strong public interest in enforcing workplace laws and there was a real prospect that the companies had underpaid their employees. The court also noted that the interests of justice would be served by allowing the applicant to proceed with the action, as it would provide a remedy for affected employees and deter future underpayment of wages. The application was therefore granted, with orders that the names of the respondents be amended to reflect their status as companies in liquidation.

Orders

Orders of the court

1. The applicant be granted leave to proceed as against the first, second, third and fourth respondents pursuant to s 471B of the Corporations Act 2001 (Cth).

2. The name of the first respondent be amended to read “Sushi Bay Pty Ltd (ACN 121 977 419) (in liquidation)”.

3. The name of the second respondent be amended to read “Sushi Bay ACT Pty Ltd (ACN 160 778 772) (in liquidation)”.

4. The name of the third respondent be amended to read “Auskobay Pty Ltd (ACN 156 242 063) (in liquidation)”.

5. The name of the fourth respondent be amended to read “Auskoja Pty Ltd (ACN 146 264 566) (in liquidation)”.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 122 of 2022
Judgment of:	WIGNEY J
Date of judgment:	1 June 2023
Catchwords:	INDUSTRIAL LAW – Fair Work Ombudsman seeking to proceed in underpayment action against insolvent corporate respondents – s 471B application for leave to proceed against companies in liquidation – application granted
Legislation:	Corporations Act 2001 (Cth) s 471B Fair Work Act 2009 (Cth) Fair Work Regulations 2009 (Cth) Restaurant Industry Award 2010
Cases cited:	Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 Australian Securities and Investments Commission v Union Standard International Group Pty Ltd (No 2) [2020] FCA 1871 Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356 Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd [1997] FCA 1484 Re Gordon Grant & Grant Pty Ltd (1983) 7 ACLR 669; [1983] 2 Qd R 314 Rushleigh Services Pty Ltd v Forge Group Ltd (In Liq) [2016] FCA 1471 Vagrand Pty Ltd (In Liq) v Fielding (1993) 41 FCR 550
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	26
Date of hearing:	15 May 2023
Counsel for applicant:	Ms V Bridgen
Solicitor for applicant:	Fair Work Ombudsman
Solicitor for fifth respondent:	Mathas Law

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	1 JUNE 2023