Fair Work Ombudsman v VicPro Security Pty Ltd (No 2)

Case [2025] FedCFamC2G 1254

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…

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AGLC
Fair Work Ombudsman v VicPro Security Pty Ltd (No 2) [2025] FedCFamC2G 1254
Case
[2025] FedCFamC2G 1254
Decision Date

CaseChat Overview and Summary

Fair Work Ombudsman v VicPro Security Pty Ltd (No 2) involved an application by the respondents to amend their defence in a case before the court. The Fair Work Ombudsman (FWO) sought to enforce a decision made by the Fair Work Commission, and the respondents, VicPro Security Pty Ltd, had initially filed a defence but sought to amend it. The primary legal issue before the court was whether the respondents should be granted leave to amend their defence, considering the late filing of the affidavits and the potential prejudice to the FWO. The court also considered whether any further evidence might be required to address the proposed amendments.

The court assessed the application by weighing the importance of allowing the respondents to present their available legal arguments against the prejudice the FWO would face in having to respond to these arguments within a tight timeframe. The court acknowledged the real prejudice to the FWO's staff but determined that it was more important for the respondents to have an opportunity to advance their legal arguments. The court accepted the explanation for the delay in filing the affidavits, despite acknowledging that the respondents were partly responsible for their predicament. The court also noted that neither party had anticipated a further adjournment, and the proceeding had already been on foot for over 18 months with one prior adjournment.

In conclusion, the court granted the respondents' application to amend their defence, allowing them to file a further amended notice of defence. The court gave greater weight to the respondents' ability to present their legal arguments and to settle all matters in controversy between the parties. The court determined that the amendments were tightly circumscribed and that the FWO would have had sufficient notice of them by the trial date. The court also noted that the parties had agreed on certain further and better particulars of the defence and consented to the form of order proposed by the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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