Fair Work Ombudsman v VicPro Security Pty Ltd (No 2)
[2025] FedCFamC2G 1254
•31 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v VicPro Security Pty Ltd (No 2) [2025] FedCFamC2G 1254
File number: MLG 2303 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 31 July 2025 Catchwords: PRACTICE AND PROCEDURE – Application made by the First Respondent to amend defence – Where application granted – Greater weight given to the Respondents being able to advance all arguments than any prejudice to the Applicant
PRACTICE AND PROCEDURE – Affidavits – Late filing of Respondents’ affidavits permitted – No material prejudice to the Applicant
Legislation: Fair Work Act 2009 (Cth) ss. 550, 716
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 139, 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 2.05, 7.01
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Fair Work Ombudsman v VicPro Security Pty Ltd (No 2) [2025] FedCFamC2G 1254
Taikato v The Queen (1996) 186 CLR 454
WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 31 July 2025 Date of hearing: 31 July 2025 Counsel for the Applicant: Mr McKenna Solicitor for the Applicant: Fair Work Ombudsman Counsel for the Respondents: Mr Denton Solicitor for the Respondents: KHQ Lawyers ORDERS
MLG 2303 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: VICPRO SECURITY PTY LTD
First Respondent
DAMIEN BLACK
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
31 JULY 2025
THE COURT ORDERS THAT:
1.The Respondents have leave to rely on the affidavits of Mr Damien Murray John Black and Mr Monu Parta Singh Monga taken to have been filed on 11 July 2025.
2.The Respondents are allowed to file and serve a Further Amended Defence substantially in the form annexed as “TM-4” to the affidavit of Mr Thomas Molan made on 18 July 2025 on or before 4.00 pm on 4 August 2025, together with further and better particulars of:
(a)the identity of the employees referred to at paragraph 12(a)(i)(2) of the
Defence; and
(b)the clauses of the Code of Conduct relied upon as designating over-award payments to relevant employees to satisfy any entitlement to overtime payments under the Award and the period over which designated set-off is said to occur.
3.The Applicant has leave to file any further evidence as a result of the amendments set out in the Further Amended Defence not later than 4.00 pm on 11 August 2025.
4.The parties have liberty to apply on short notice.
AND THE COURT NOTES THAT:
A.The Court notes that the liability hearing remains listed on 14 and 15 August 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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).
EX TEMPORE REASONS FOR JUDGMENT
Revised from the transcriptJUDGE CHAMPION:
INTRODUCTION
On 20 December 2023 the Fair Work Ombudsman (FWO) commenced this proceeding seeking orders that VicPro Security Pty Ltd had failed to comply with a compliance notice under s 716(5) of the Fair Work Act 2009 (Cth) (FW Act). The Applicant alleges that Mr Damian Black, the Second Respondent, was involved, within the meaning of s 550 of the FW Act, in the contravention.
Since the commencement of the proceedings, there have been various interlocutory hearings and orders. On 10 October 2024 I set down a hearing for 13 June 2025. On 28 February 2025 the FWO filed its affidavit material. Subsequently, on the Respondents’ application, the trial was adjourned until 14 and 15 August 2025.
On 18 July 2025, the Respondents filed an application foreshadowed on 8 July 2025, seeking that they be granted leave to file and serve a further amended defence. Mr Thomas Molan, the Respondents’ lawyer, made an affidavit on 18 July 2025 in support of the application.
The FWO opposes the application that the Respondents be granted leave to file and serve a further amended defence.
As has become apparent in the course of the hearing, I propose to allow the Respondents to file and serve a further amended defence subject to some conditions, which include the maintenance of the existing trial dates on 14 and 15 August 2025.
Leave to rely on the affidavits of Mr Damien Black and Mr Monu Monga
I also note as a separate issue, at the outset of the hearing today, I dealt with a matter whereby the Respondents seek orders that they be granted leave to file and serve affidavits of Mr Damian Black and Mr Manu Monga made on 11 July 2025. The circumstances are as follows.
By orders made on 1 July 2025, because of previous defaults in complying with orders for the filing of material, I made an order that the Respondents not be permitted to file liability evidence after 11 July 2025 without the leave of the court.
The affidavits to which I have referred were filed after 9 PM on the evening of 11 July 2025.
Under r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the affidavits are taken to have been filed on the next business day. The FWO did not contend that it suffered a material prejudice by the filing of the affidavits on the day they were due but after the close of business. The FWO also did not seek to be heard beyond its written submissions as to the issue.
In those circumstances, I will grant leave for the Respondents to rely on the affidavits filed on the evening of 11 July 2025 and to rely on those affidavits at trial. There is no material prejudice that arises to the Applicant by the affidavits being late filed by several hours but several weeks before trial.
RELEVANT PRINCIPLES
As to the Respondents’ application to amend their defence, the relevant principles are not in dispute.
Under s 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), so far as possible, I must ensure all matters of controversy between the parties are completely and finally determined.
Under r 7.01 of the Rules I may at any stage in the proceeding allow a party to amend a document in a way and on the conditions that I think fit.
I must exercise my power in accordance with the overarching purpose set out in the case management principles set out in s 190 of the FCFCOA Act.
The Respondents identified the relevant considerations as to their application to file a further amended defence at [5] of their written outline, in which they distilled the relevant principles from Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 which include the following considerations that govern my discretion as to whether to allow an amendment to the defence in the interests of justice:
(a)the nature and importance of the amendment to the party applying for it (Aon, [102]);
(b)the extent of the delay and costs associated with the amendment (Aon, [102];
(c)prejudice that might be assumed to follow from the amendment and that which is shown (Aon, [5], [100],[102]);
(d)explanation for any delay in applying for leave (Aon, [108]);
(e)parties’ choices to date in the litigation (Aon, [112]);
(f)detriment to other litigants in the court (Aon, [114]); and
(g)the potential loss of public confidence in the legal system (Aon, [5], [24], [30]).
THE PROPOSED AMENDMENTS
The Respondents submit that the proposed amendments are concise. Further, they characterise the amendments as legal alternatives to the factual case the Respondents have already advanced.
The Respondents submit that the effect of the proposed amendments is that:
(a)a code of conduct it had with employees had a “designating effect” in the alternative to a contractual effect to permit it to set off over award payments – the Respondents submit that the proposed amendments to the defence as to the “designation” amendment will permit the respondents to argue an alternative species of set-off, recognised by the common law principles concerning payments by a debtor to a creditor; and
(b)the proposed amendments will allow the Respondents otherwise to contend that they had a reasonable excuse under s 716(6) of the FW Act not to comply with the compliance notice.
WHAT IS MY ANALYSIS?
The nature and importance of the amendment to the party applying for it
As to the nature and importance of the amendment to the party applying for it, as the FWO recognised, because the current proceedings concern civil penalties they are inherently serious.
The designating effect of the overpayments
As to the designating effect of the overpayments the Respondents indicated that the purpose of the proposed amendments is to permit the Respondents to argue “the common law principles concerning payment by a debtor to a creditor” as explained, for example, in WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179, [865]–[871].
The Applicant submitted that the “set off by designation ground is without merit”. It seems to me that the merit of the proposed amendment – or otherwise – is a trial issue. That is, on an amendment application, I would not refuse the application to amend on the basis that the proposed amendment is futile.
Reasonable excuse amendment
As to the reasonable excuse amendment, the Respondents submitted that they should be entitled to argue that matters – all of which are already in evidence – form the basis of excuse from compliance that would be accepted by a reasonable person (Taikato v The Queen (1996) 186 CLR 454 at 464).
Although the FWO pointed out that there may be relevant prior authority of this court which may bear upon the ultimate success of the proposed amendment as to the reasonable excuse ground, again it cannot be said that the amendments are futile and lacking in a sound, arguable legal basis.
The extent of the delay
The extent of the delay is substantial. As I have noted, the proceeding was issued in December 2023. The Respondents first foreshadowed the proposed amendments only on or about 8 July 2025, more than 18 months later, some 5 weeks ahead of trial at a point in time at which the FWO had filed her evidence some months previously. The delay is something that weighs against the grant of leave.
The prejudice that might be assumed to follow from the amendment, and that which is shown
As to the prejudice that might be assumed to follow from the amendment and that which is shown, a significant issue is whether – if leave is granted – a consequential adjournment of the trial becomes necessary. Neither party wishes for the trial to be adjourned and the arguments as to the amendments proceeded on that basis.
The Respondents submit that as the amendments raise legal matters, not evidentiary matters, no adjournment to the trial is necessary.
Further evidence
As to the need for possible further evidence, the FWO submitted that “it is not yet clear whether evidence would be required to meet” the amendments (Applicant’s submission, [7]).
Counsel for the FWO, in argument before me, said that it was unlikely further evidence would be required but certainly, the Applicant’s position was reserved so it may reflect upon that preliminary assessment.
In my assessment, it appears likely the parties can make any supplementary submissions and file supplementary evidence in a timeframe which does not disturb the trial date even if I grant leave to the respondents to amend their defence.
Doing the best I can, although I cannot rule out that further evidence might be necessary, it seems more likely than not on the material to hand that the proposed amendments raise legal issues, not evidentiary issues. Nonetheless, a condition of the grant of leave will be that the FWO will have an opportunity to file any supplementary evidence as a result of the proposed amendments.
The FWO made submissions to me as to the real prejudice which falls upon the staff in the FWO’s office, to whom it will fall at a human level to deal with freshly raised, complex legal matters on short notice. I acknowledge that is a real prejudice and not a situation of the FWO’s own making.
Nonetheless, in putting further submissions and putting on further evidence, the FWO still must continue to conduct the proceeding including in its assembly of any new additional evidence in accordance with the overarching purpose and take steps that are proportionate to the importance and complexity of the dispute. As I balance the scales, it is more important that the Respondents have an opportunity to put the arguments they wish to put at trial and I lend greater weight to that fact in circumstances of the application.
Explanation for the delay
As to the explanation for the delay, there has been a change in legal representation. I accept that to some extent such an explanation is insufficient and the respondents are the authors of their own predicament.
Parties’ choices to date in the litigation
As to the parties’ choices to date in the litigation, the FWO did not submit, beyond the fact that it would have to address these matters under a tight timeframe, that it would suffer any irreparable prejudice were I to grant the leave to amend as on the basis of the choices that the parties have made to date in the litigation.
Detriment to other litigants and potential loss of public confidence
As to the final factors raised in Aon as to detriment to other litigants and the potential loss of public confidence in the legal system this is a material consideration in circumstances in which the proceeding has been on foot for more than 18 months and the trial has already been adjourned once on the Respondents’ application.
However, as I have noted, neither party proceeded on the basis that a further adjournment was necessary.
CONCLUSION
Balancing the various matters I have traversed above, I propose to allow the respondents to amend their defence by the filing of the further amended notice of defence.
In summary, I have given greater weight to the Respondents being permitted to put forward available legal arguments in their defence and settling so far as is possible all matters in controversy between the parties than the weight I have given to the prejudice the FWO will suffer of having within a tight timeframe not of its own making to meet those arguments which have been freshly raised. I accept that the amendments are reasonably tightly circumscribed and that the applicant will have had, by trial, five weeks’ notice of them.
Other matters
The parties in the course of argument before me this afternoon agreed that it was appropriate that certain further and better particulars of the defence be provided, and the Court is content to consent to the form of order that the parties proposed.
The Respondents indicated that they will today file an outline of their pre-trial submissions as previously ordered, and the FWO indicated that it anticipated, provided those submissions were sufficiently comprehensive, that it would be able to deal with matters raised in the further amended defence in its reply submissions.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Champion. Associate:
Dated: 31 July 2025
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