Farley v Mkr Capital Pty Ltd
[2025] FedCFamC2G 1340
•19 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farley v Mkr Capital Pty Ltd [2025] FedCFamC2G 1340
File number(s): SYG 1689 of 2025 Judgment of: JUDGE ZIPSER Date of judgment: 19 August 2025 Catchwords: PRACTICE AND PROCEDURE – application for interim injunction or interlocutory relief – whether applicant has made out prima facie case – balance of convenience
PRACTICE AND PROCEDURE – application to extend interim non-publication or non-disclosure order in respect of information in affidavit of party – whether information was confidential – relevance of confidentiality clause in agreement between parties as alternative mechanism to prevent disclosure of information - whether order necessary to prevent prejudice to proper administration of justice
Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 233
Federal Circuit andFamily Court of Australia (Division 2) (General Federal Law) Rules 2021 r 30.04
Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082
Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Ltd (No 4) [2017] FCA 1532
Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17
The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 44; 275 FCR 377
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 17 July 2025 Place: Parramatta Applicant: Appeared in person Counsel for the Respondents: Dilan Mahendra Solicitor for the Respondents: Russell Kennedy ORDERS
SYG 1689 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THOMAS FARLEY
Applicant
AND: MKR CAPITAL PTY LTD ABN 50 667 758 812
First Respondent
AARON ROWE
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 AUGUST 2025
THE COURT ORDERS THAT:
1.The application for an interim injunction sought by the applicant in his application filed on 26 May 2025 is dismissed.
2.The application in a proceeding filed by the respondents on 2 July 2025 is dismissed.
3.Order 1 made on 17 July 2025 is vacated.
4.Order 3 above is stayed until 4 pm on 16 September 2025.
5.The proceeding is listed at 9:15 am on 29 August 2025 for:
(a)submissions on costs arising from the dismissal of the applications referred to in orders 1 and 2 above; and
(b)directions.
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).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 17 July 2025, I heard:
(a)an application for an “interim injunction” by the applicant, Mr Farley, for the release of withheld wages (Withheld Wage Application); and
(b)an application in a proceeding by the respondents, MKR Capital Pty Ltd (MKR) and Aaron Rowe, to extend an interim order I made on 20 June 2025 under s 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOAAct) restraining the applicant from further disclosing specified material (Non-Disclosure Application).
This judgment contains my reasons for decision in respect of the two interlocutory applications.
For the following reasons, each interlocutory application is dismissed.
FACTUAL BACKGROUND
In November 2024, discussions commenced between the applicant, Mr Farley and the second respondent, Mr Rowe, who is the principal of the first respondent, MKR, concerning MKR employing Mr Farley.
On about 18 December 2024, the parties signed a contract of employment (Employment Contract). Some terms of the Employment Contract were:
(a)The contract commencement date was 1 February 2025.
(b)The total remuneration was “$180,000 USD (inclusive of 11.5% Super)”.
(c)The probationary period was 6 months with 1 months’ notice.
(d)Clause 27, titled “Confidential Information”, imposed obligations on Mr Farley to “maintain the confidentiality of information and documents to which you have access during or arising from your employment with MKR …”
On 6 April 2025, Mr Rowe sent Mr Farley an email providing notice of termination of Mr Farley’s employment at MKR.
On 8 April 2025, Mr Rowe sent Mr Farley an email “to agree [Mr Farley’s] final payout amount” which Mr Rowe calculated as USD $21,900. On 10 April, Mr Rowe, having now consulted with MKR’s accountant, sent Mr Farley an email which stated (Rowe 10 April Email):
Please find attached payslips including the payslip for your final pay which has been prepared by MKR Capital accountants. There is a spreadsheet attached which reconciles everything and further information below. I have paid the $691.53 and it should be in your account now.
The Rowe 10 April Email forwarded to Mr Farley an email from the accountant to Mr Rowe which stated in part (Accountant 10 April Email):
Today, 10th April, final gross pay including superannuation, tax and annual leave payout was calculated as $35,523.11. This amount will be split as above:
•$691.53 – paid directly to Tom
•$8,004.04 – to Host Plus Superannuation Fund
•$26,826 – to ATO as PAYG-Withholding
The Accountant 10 April Email appeared immediately underneath the Rowe 10 April Email. When one reads the email chain, it is clear that Mr Rowe’s reference to “further information below” was a reference to the explanation in the Accountant 10 April Email.
PROCEEDINGS IN THIS COURT
Events leading up to hearing on 17 July 2025
On 18 May 2025, Mr Farley lodged in this Court:
(a)an application under the Fair Work Act 2009 (Cth) (Application) – required by r 4.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules);
(b)a claim in accordance with the approved form (Claim) – required by r 30.04 of the Rules; and
(c)an affidavit containing evidence on which he relied (Farley Affidavit).
The Application included an application for an “interim injunction for the release of withheld wages”. This is the Withheld Wage Application.
In the Claim:
(a)Mr Farley seeks final relief, including a declaration, monetary orders and civil penalties totalling over $3,000,000: see pages 18-20 of the Claim.
(b)Mr Farley sought an “urgent interim injunction” “for the release of withheld wages …”: see page 10 of the Claim. The amount of withheld wages sought was $35,961.19, which is closely related to the amount of $35,523.11 referred to in the email in paragraph 7 above. Again, this is the Withheld Wage Application.
At the first court date on 20 June 2025, Mr Farley requested that the Withheld Wage Application be listed for an interlocutory hearing as soon as possible. The respondents did not oppose Mr Farley’s request. In the circumstances, I acceded to Mr Farley’s request and listed the Withheld Wage Application for hearing before me on 17 July 2025.
At the first court date on 20 June 2025, the respondents claimed through their counsel that specified information in the Farley Affidavit was confidential. The respondents’ counsel sought an order under s 230 of the FCFCOA Act restraining Mr Farley from further disclosing the information. I made:
(a)an interim order under s 233 of the FCFCOA Act restraining Mr Farley from further disclosing the material other than to professional advisers until 5 pm on 17 July 2025 (June Non-Disclosure Order); and
(b)procedural orders so that the respondents’ request to extend the interim order could be considered at the hearing on 17 July 2025.
On 2 July 2025, the respondents filed:
(a)the Non-Disclosure Application;
(b)a submission in respect of the Non-Disclosure Application; and
(c)an affidavit of Mr Rowe containing evidence in respect of both interlocutory applications (Rowe Affidavit).
On 14 July 2025, Mr Farley filed a submission and materials in support of the Withheld Wage Application. His materials included a copy of an undated notice to produce he had served on the respondents seeking production of 11 categories of documents (Notice to Produce).
On 14 July 2025, Mr Farley filed a submission concerning various matters.
On 14 July 2025, the respondents filed a submission in opposition to Mr Farley’s Withheld Wage Application.
On 16 July 2025, Mr Farley filed a document titled “Objection to respondents’ defaults and unauthorised 14 July filing”.
Hearing on 17 July 2025
At the hearing on 17 July 2025, the parties appeared by video link. Mr Farley was unrepresented. Dilan Mahendra of counsel appeared for the respondents.
Mr Farley initially called for production of documents in the Notice to Produce. After hearing submissions from Mr Farley in respect of paragraphs 1 and 2 of the Notice to Produce, I explained that the categories:
(a)appeared to be worded too broadly for a notice to produce; and
(b)appeared to not be relevant to issues to be determined at the hearing on 17 July 2025.
Mr Farley appeared to accept these observations and did not press further for production of the documents.
I read the Rowe Affidavit and the Farley Affidavit.
I heard submissions from the parties in relation to the Non-Disclosure Application.
I heard submissions from the parties in relation to the Withheld Wage Application.
At the end of the hearing I extended the June Non-Disclosure Order on an interim basis until I published a decision in respect of the matters heard on 17 July 2025. I did this by extending the non-disclosure order “until further order” with the intention that, on publishing a decision in respect of the Non-Disclosure Application, I could vacate the order if not persuaded that the order should continue.
CONSIDERATION
Non-Disclosure Application
Section 230 of the FCFCOA Act provides that the Court may, by making a suppression or non-publication order, prohibit or restrict the publication or disclosure of, among other matters, “information that comprises evidence” that relates to a proceeding.
Section 231 of the FCFCOA Act species the grounds upon which the Court is permitted to make such an order. One of those grounds, being the ground on which the respondents rely in this case, is that “the order is necessary to prevent prejudice to the proper administration of justice”.
Section 229 of the FCFCOA Act provides that, in deciding whether to make a suppression or non-publication order, the Court “must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 44; 275 FCR 377 (Country Care) at [8]-[9] the Full Court stated:
[8]Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].
[9]The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].
In the Non-Disclosure Application the respondents seek the following orders:
1. An order pursuant to s.230 of the Federal Circuit and Family Court of Australia Act (Act) on the ground set out s.231(l)(a) of the Act that paragraphs 4, 5, 8-13 and 17-22 of the Applicant's affidavit dated 16 May 2025 and Exhibits 3, 5, 6, 7, 8 and 9 to the Applicant's affidavit dated 16 May 2025 are prohibited from disclosure by the Applicant (by publication or otherwise) for a period of 10 years, with the exception of disclosure to the Applicant's professional advisors.
2.An order that any other material filed in the proceedings by the Applicant that contain information belonging to Missioncrest, a client of the First Respondent, are prohibited from disclosure by the Applicant (by publication or otherwise) for a period of 10 years, with the exception of disclosure to the Applicant's professional advisors.
3.An order granting liberty to the parties to apply to the Court to extend the time period identified in orders 1 and 2 above, provided any such application is filed with the Court at least one month prior to its expiry.
Order sought in paragraph 1 of Non-Disclosure Application
In relation to the order sought in paragraph 1 of the Non-Disclosure Application, the respondents claim that the information in the specified paragraphs of, and exhibits to, the Farley Affidavit is confidential or commercially sensitive. It is stated in the respondents’ written submission at [6]-[7]:
[6]The Respondents contend that confidentiality orders should be made in respect of the parts of the Applicant’s affidavit identified in the Interlocutory Application.
[7]It is clear from Mr Rowe’s affidavit that the material included in the Applicant’s affidavit contains commercially sensitive and confidential information. In this regard, it includes:
(a) client information;
(b) profit and loss performances of client portfolios;
(c)trading positions and funds managed by the First Respondent on behalf of the relevant client.
In Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [8]-[9] Perram J stated:
[8]It might be thought that the mere protection of commercial-in-confidence information, which is essentially what Hytera seeks in this case, fits less comfortably within the statutory words ‘necessary to prevent prejudice to the proper administration of justice’. But this Court has held in a number of cases that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 235 per Bowen CJ; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23] per Greenwood J; Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [7] per Jacobson J; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (Air New Zealand (No 3)) at [35]; Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 (‘Origin Energy’) at [148] per Katzmann J; ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [93] per Markovic J.
Thus, in an appropriate case, the Court may make a suppression or non-publication order to protect commercially sensitive information.
However, for the following reasons, I will not make the order in paragraph 1 of the Non-Disclosure Application.
First, based on the evidence provided by Mr Rowe, I am not persuaded that the specified information is confidential or commercially sensitive. Mr Rowe asserted in paragraph 8 of the Rowe Affidavit:
The following exhibits contained in the Applicant’s affidavit dated 16 May 2025 (Applicant’s Affidavit) filed in these proceedings contain highly commercial sensitive and confidential information belonging to the First Respondent and to the Client:
a. Paragraphs 4, 5, 8- 13 and 17-22 of the Applicant’s Affidavit;
b. Exhibit 3 of the Applicant’s Affidavit;
c. Exhibit 5 of the Applicant’s Affidavit;
d. Exhibit 6 of the Applicant’s Affidavit;
e.Exhibit 7 that includes a screenshot of profit and loss performance of the Client’s portfolio;
f.Exhibit 8 that refers to trading positions and funds managed by the First Respondent on behalf of the Client, and includes screenshots of the profit and loss performance of the Client’s portfolio; and
g.Exhibit 9 that includes a screenshots of trading positions and the profit and loss performance of the Client’s portfolio,
(together, the Client Information)
As discussed with Mr Mahendra at the hearing on 17 July 2025, I considered this evidence problematic for a number of reasons. First, Mr Rowe does not clearly explain in his affidavit why the specified information is “highly commercial sensitive and confidential”. Mr Rowe states in paragraph 12 of his affidavit:
Based on my experience, professionals working in the fund management industry (including fund/portfolio managers, asset consultants and other specialists who monitor fund management activities) are acutely aware that trading positions, particularly those involving confidential or market-sensitive information, are highly sensitive and carry significant commercial implications. The potential for misuse of such information can lead to reputational damage, regulatory scrutiny, and financial penalties. This is a fundamental principle known in the industry.
However, although I admitted this paragraph into evidence at the hearing on 17 July 2025:
(a)The weight I place on what Mr Rowe knew about the state of mind of a wide group of professionals working in the fund management industry is limited.
(b)The majority or most of the information specified in paragraph 8 of the Rowe Affidavit did not concern “trading positions”.
(c)To the extent any information specified in paragraph 8 of the Rowe Affidavit concerned “trading positions”:
(i)Mr Rowe did not provide evidence which sought to establish that the trading positions “involve[ed] confidential or market-sensitive information”.
(ii)It was not evident to me that a historical trading position (say a trading position taken by MKR in January 2025) is confidential or commercially sensitive a few months later.
(iii)Mr Rowe did not explain how “the potential for misuse of such information can lead to reputational damage, regulatory scrutiny and financial penalties”.
At the hearing on 17 July 2025, Mr Mahendra provided a reasonable explanation for why the information in paragraphs 11 and 21 of the Farley Affidavit (see paragraph 38 below which explains the narrowing to paragraphs 11 and 21) may be commercially sensitive to the respondents. But this explanation is not in the Rowe Affidavit.
A second reason I found Mr Rowe’s evidence problematic is that he did not provide a basis for his assertion that the information is highly commercially sensitive and confidential “to the Client”. Normally “the Client” should, or would need to, give this evidence.
A third reason I found Mr Rowe’s evidence problematic is that some paragraphs of the Farley Affidavit specified in paragraph 8(a) of the Rowe Affidavit contain information which appears to not be commercially sensitive or confidential in any way. When I raised this matter with Mr Mahendra, he significantly narrowed the respondents’ claim in paragraph 8(a) of the Rowe Affidavit to paragraphs 11 and 21 of the Farley Affidavit. I accept the possibility that some information in paragraphs 11 and 21 of the Farley Affidavit may be commercially sensitive to the respondents. But, in circumstances where Mr Rowe initially swore an affidavit in which he asserted that a notably larger amount of information is “highly commercially sensitive and confidential” when some of that information appears to be clearly not commercially sensitive or confidential, I am concerned about the reliability of his evidence.
A fourth reason I found Mr Rowe’s evidence problematic is as follows. A basis on which he relies in seeking a non-disclosure order is, as stated in paragraph 22 of his affidavit, that, without a non-disclosure order, the respondents face “exposure to breach of the respondents’ obligations under the [investment management agreement dated 12 May 2023 between MKR and a client] and potential adverse financial consequences”. Mr Mahendra relied on this point in closing submissions. But Mr Rowe chose not to annex the investment management agreement to his affidavit. So, I was unable to assess his assertion.
Second, Mr Rowe appears to state in paragraph 10 of the Rowe Affidavit that the information in the Farley Affidavit (specified in paragraph 8 of the Rowe Affidavit) is protected by a confidentially clause in the Employment Contract. Clause 27 of the Employment Contract is titled “Confidential Information”. Clause 27.1 states:
You must maintain the confidentiality of information and documents to which you have access during or arising from your employment with MKR or any of its related entities.
Mr Rowe states in paragraph 10 that Mr Farley, by including in the Farley Affidavit the information specified in paragraph 8 of the Rowe Affidavit, engaged in conduct “in breach of the applicant’s confidentiality obligations pursuant to clause [27] of the [Employment] Contract”.
But, if this information is protected by the confidentiality clause, it is not evident to me why the respondents require an order from the Court under s 230 of the FCFCOA Act no greater in scope than the protection provided by the confidentiality clause. Conversely, if the respondents seek a protection beyond the scope of clause 27 of the Employment Contract, it is not evident to me how they can use s 230 of the FCFCOA Act to obtain a position better than the position the subject of their bargain with Mr Farley in the Employment Contract.
Third, as stated in Country Care at [9], “the critical question is whether the making of a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice” and “the word ‘necessary’ in that context is a ‘strong word’”. Cases such as Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Ltd (No 4) [2017] FCA 1532 (in particular at [16] and [19]) and Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 (in particular at [13]) indicate the limited and unusual circumstances in which a court may make a suppression or non-publication order based on information which is commercially sensitive to a party. Mr Mahendra’s submission was ultimately to the effect that competitors of MKR, if they became aware of the information the subject of the Non-Disclosure Application, could use the information to try to poach MKR’s client. Even if some of the information the subject of the Non-Disclosure Application is commercially sensitive to the respondents, I am not persuaded that the extension of the June Non-Disclosure Order might “prevent prejudice to the proper administration of justice”, let alone that the order is “necessary” to prevent prejudice to the proper administration of justice.
At the conclusion of the hearing, I proposed to the parties that, if I refused to make the order sought by the respondents, I would craft an order so that the non-disclosure order I made on 20 June 2025 continues for a further 28 days. This will give the respondents a reasonable opportunity to consider their position. The parties did not object to this course.
Order sought in paragraph 2 of Non-Disclosure Application
Neither the respondents’ written submission filed on 2 July 2025 nor Mr Mahendra’s oral submissions at the hearing on 17 July 2025 addressed the order sought in paragraph 2 of the Non-Disclosure Application.
Further, I have significant reservations about making an order under s 230 of the FCFCOA Act concerning information:
(a)which is not specified or particularised; and
(b)which is defined in broad and ambiguous terms as “belonging to Missioncrest”.
I will not make the order sought in paragraph 2.
Withheld Wage Application
A principal complaint by Mr Farley against the respondents is that they have withheld, and thereby not paid him, wages to which he is entitled totalling a little over $35,000. For example, in paragraphs 16(f) and 17 of Part G of the Claim Mr Farley complains that the respondents “continue to withhold wages” and there is “ongoing withholding of wages”. The final relief he seeks in Annexure C of the Claim includes “payment to the applicant of $36,652.72”. This amount is the amount of alleged withheld wages.
The Withheld Wage Application involves an attempt by Mr Farley to persuade the Court, at an interlocutory stage, to order that the respondents pay Mr Farley this part of his claim for final relief.
In Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] Gleeson CJ and Crennan J stated in relation to the principles applicable to interlocutory injunctions:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial...
On application of the test in O’Neill, the first inquiry is whether Mr Farley has made out a prima facie case for relief in respect of his complaint concerning withheld wages. For at least the following reasons, Mr Farley has not made out a prima facie case:
(a)First, as stated in paragraph 7 above, on 10 April 2025 Mr Rowe forwarded to Mr Farley the Accountant 10 April Email in which the accountant stated that, in relation to a final payment of wages to which Mr Farley was entitled, in circumstances where the employer had not previously withheld or paid PAYG tax, MKR would pay PAYG withholding tax of $26,826 directly to the Australian Taxation Office (ATO). Mr Rowe, in paragraph 32 of the Rowe Affidavit, states this amount “was reported in [MKR’s] business activity statement for March 2025 and was paid to the ATO on 26 May 2025”. Mr Farley neither disputes these matters, nor the calculation of $26,826. Thus, Mr Farley appears to accept that he had a tax liability of $26,826 to the ATO which MKR paid from the amount of a little over $35,000 which Mr Farley complains should have been paid directly to Mr Farley. It appears to follow that, in relation to the amount of $26,826, the amount is not, contrary to Mr Farley’s claim, “withheld” by MKR – since MKR has paid the money to the ATO to satisfy a tax liability of Mr Farley. Unless the ATO repays the amount of $26,826 to MKR, based on the way in which Mr Farley has presented his case to date, I struggle to understand how MKR could be ordered to pay this amount to Mr Farley. Such an order would appear to result in a windfall gain for Mr Farley and a double burden on MKR.
(b)Second, the Accountant 10 April Email also stated that, in relation to the final payment of wages to which Mr Farley was entitled, $8,007.04 was paid to Host Plus Superannuation Fund. Mr Rowe, in paragraph 33 of the Rowe Affidavit, states that on 28 May 2025 MKR “made the superannuation contribution [of $8,007.04] into [Mr Farley’s] nominated super fund, Hostplus, as [Mr Farley] did not advise me of his membership number until that date”. Mr Farley did not dispute this evidence, including the payment of $8,007.04 into his superannuation account. Thus, Mr Farley does not dispute that, in relation to the amount of a little over $35,000 which he complains MKR has withheld and not paid him, MKR has paid $8,007.04 into his superannuation account. Again, it appears to follow that, in relation to this amount, the amount is not, contrary to Mr Farley’s claim, “withheld” by MKR. Again, unless Mr Farley arranges for this amount of $8,007.04 to be repaid to MKR, based on the way in which Mr Farley has presented his case to date, I struggle to understand how MKR could be ordered to pay this amount to Mr Farley. Such an order would appear to result in a windfall gain for Mr Farley and a double burden on MKR.
On application of the test in O’Neill, the second inquiry is “whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted”.
In relation to inconvenience or injury Mr Farley says he would be likely to suffer, Mr Farley states in paragraph 38 of the Farley Affidavit:
The ongoing withholding is causing financial distress, threatening a second month of missed rent and missed loan payments. My account is currently overdrawn from loan payments and I risk having to move out of my place and further deterioration of credit standing imminently.
In circumstances where Mr Farley chose not to provide documentary evidence to support these assertions, I am cautious about placing weight on the assertions. Further, that Mr Farley might be unable to pay current expenses and liabilities for a reason not clearly associated with the alleged withheld wages (for example, he does not claim to have signed a rent agreement or loan agreement in reliance on anticipated receipt of the withheld wages) carries little weight in the weighing exercise referred to in O’Neill at [65].
In contrast, the injury MKR would suffer if I made the order sought by Mr Farley is significant. MKR would be required to pay a little over $35,000 to Mr Farley on an interlocutory basis. Mr Farley’s description of his financial position in paragraph 38 of his affidavit suggests at least a real possibility that, should Mr Farley’s claim in respect of withheld wages fail at final hearing, he may not be able to repay the money to MKR.
For the above reasons, I will not make the interlocutory order sought by Mr Farley.
COSTS
I will list the proceeding for directions at 9:15 am on 29 August 2025. On that occasion, I will:
(a)hear submissions on costs arising from the dismissal of the Withheld Wage Application and the Non-Disclosure Application, including the effect of s 570 of the Fair Work Act 2009 (Cth); and
(b)consider other directions to be made in the proceeding.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 August 2025
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