FEDERAL COURT OF AUSTRALIA
Han v St Basil’s Homes (No 2) [2025] FCA 448
File number: NSD 1226 of 2020 Judgment of: SHARIFF J Date of judgment: 6 May 2025 Catchwords: INDUSTRIAL LAW – claims made by employee for orders as to compensation and penalties following determination that her employer had contravened ss 340(1)(a) and 351(1) of the Fair Work Act 2009 (Cth) (FW Act) – claim for compensation made under s 545(2)(b) of the FW Act – where employee claimed she suffered mental harm – where employee further claimed compensation for past and future economic loss, non-economic loss, past and future out of pocket expenses and past and future gratuitous care because of the contraventions – where employer opposed payment of any compensation despite clear findings of contravention – where neither party challenged the opposing party’s expert and other evidence – where the parties’ respective positions as to compensation were ambitious and untethered to statutory norms – assessment of appropriate compensation – where inconsistent expert evidence adduced but not challenged – evidentiary foundation lacking – claim for penalties to be imposed under s 546 of the FW Act – where employee sought the imposition of penalties – where employer opposed the imposition of penalties – Held: compensation awarded for economic loss, non-economic loss and out of pocket expenses – penalties imposed because they are necessary for the promotion of the public interest in securing compliance with the provisions of the FW Act Legislation: Fair Work Act 2009 (Cth) ss 336, 340, 340(1)(a), 341, 346, 351, 351(1), 361(1), 545, 545(2)(b), 546(1), 546(3)(c), 557
Federal Court of Australia Act 1976 (Cth) ss 37N(1)-(2), 37M(1), 37M(2)(b)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PO(4), 46PO(4)(d)
International Convention on the Elimination of all Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 arts 2, 4 (entered into force 4 January 1969)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; ATPR ¶41-815
Australian Competition and Consumer Commissionv Coles Supermarkets Australia Pty Limited [2015] FCA 330; 327 ALR 540
Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301
Australian Competition and Consumer Commissionv Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640
Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73
Australian Licenced Aircraft Engineers Association v International…
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Details
- Case
- [2025] FCA 448
- Decision Date
CaseChat Overview and Summary
Han v St Basil's Homes (No 2) involved an employee, Ms Han, who sought compensation and penalties from her employer, St Basil's Homes, following a determination that the employer had contravened sections 340(1)(a) and 351(1) of the Fair Work Act 2009 (Cth). Ms Han claimed she suffered mental harm and sought compensation for past and future economic loss, non-economic loss, out-of-pocket expenses, and gratuitous care. St Basil's opposed any compensation, and both parties presented ambitious claims that were largely detached from statutory norms and the evidence presented. The court had to assess the appropriate compensation and determine whether penalties should be imposed.
The legal issues before the court included whether Ms Han was entitled to compensation for the contraventions and, if so, in what amount. Additionally, the court had to decide if penalties should be imposed to promote compliance with the Fair Work Act. The court considered the quality and cogency of the evidence provided by both parties, which was largely unchallenged, and examined the statutory framework governing compensation and penalties under the Fair Work Act.
In its decision, the court found that Ms Han was entitled to compensation for her economic loss, non-economic loss, and out-of-pocket expenses, albeit in amounts less than those claimed. The court awarded $175,000 for past economic loss, $61,559.62 for future economic loss, $75,000 for general damages, and $10,000 for future out-of-pocket expenses. The court also imposed penalties to ensure compliance with the Fair Work Act, ordering St Basil's to pay $45,000 for the contravention of section 351(1) and $15,000 for the contravention of section 340(1). The penalties were to be paid to Ms Han.
The court's decision was structured to first address the evidence, followed by a summary of the findings made by Rares J in the earlier Liability Judgment. The court then examined the claims for compensation and penalties, ultimately ordering compensation and penalties to be paid to Ms Han. The court also set out further procedural steps to be taken regarding interest and costs, should any party wish to pursue those claims.
The legal issues before the court included whether Ms Han was entitled to compensation for the contraventions and, if so, in what amount. Additionally, the court had to decide if penalties should be imposed to promote compliance with the Fair Work Act. The court considered the quality and cogency of the evidence provided by both parties, which was largely unchallenged, and examined the statutory framework governing compensation and penalties under the Fair Work Act.
In its decision, the court found that Ms Han was entitled to compensation for her economic loss, non-economic loss, and out-of-pocket expenses, albeit in amounts less than those claimed. The court awarded $175,000 for past economic loss, $61,559.62 for future economic loss, $75,000 for general damages, and $10,000 for future out-of-pocket expenses. The court also imposed penalties to ensure compliance with the Fair Work Act, ordering St Basil's to pay $45,000 for the contravention of section 351(1) and $15,000 for the contravention of section 340(1). The penalties were to be paid to Ms Han.
The court's decision was structured to first address the evidence, followed by a summary of the findings made by Rares J in the earlier Liability Judgment. The court then examined the claims for compensation and penalties, ultimately ordering compensation and penalties to be paid to Ms Han. The court also set out further procedural steps to be taken regarding interest and costs, should any party wish to pursue those claims.
Orders
Orders of the court
1. The respondent pay compensation to the applicant under s 545(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) in the following amounts:
(a) $175,000 for past economic loss;
(b) $61,559.62 for future economic loss;
(c) $75,000 for general damages; and
(d) $10,000 for future out of pocket expenses.
2. The respondent pay pecuniary penalties under s 546 of the FW Act in the following amounts:
(a) $45,000 in respect of the contravention of s 351(1) of the FW Act; and
(b) $15,000 in respect of the contravention of s 340(1) of the FW Act.
3. The pecuniary penalties in Order 2 be paid to the applicant pursuant to s 546(3)(c) of the FW Act.
4. The matter be listed for case management immediately upon delivery of the reasons for judgment dated 6 May 2025 to enable the parties to be heard as to whether:
(a) the applicant presses any claim for interest in respect of the amounts in Order 1(a); and
(b) any party makes a claim for costs under s 570 of the FW Act or any other applicable law.
5. If no claims are made under Order 4, the proceedings be otherwise dismissed.
6. If a claim is made under Order 4:
(a) the applicant is to file and serve submissions not exceeding 3 pages on the issue of interest and costs by 4.00 pm on Thursday, 8 May 2025;
(b) the respondent is to file and serve submissions not exceeding 3 pages on the issue of interest and costs by 4.00 pm on Tuesday, 13 May 2025; and
(c) the applicant is to file and serve submissions in reply, if any, not exceeding 3 pages by 4.00 pm on Thursday, 15 May 2025.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Before turning to the application of these principles to the present case, it is necessary to say something about the nature and quality of the evidence adduced by and on behalf of Ms Han and make findings as to the matters relevant to the determination of her claims as to compensation under s 545(1)(b) of the FW Act. 4.2 Ms Han’s case as to compensation and the nature and quality of the evidence in support of it As noted in Part 2, I received a considerable body of evidentiary materials in the Joint Court Book. There was no challenge to any of that evidence by way of cross-examination. However, it does not follow that I am bound to necessarily accept that evidence. As Burley J stated in Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399; 324 IR 58 at 76 [61]: A trial judge is not required to accept evidence merely because it is unchallenged in cross examination, however, the fact that evidence is unchallenged may provide a cogent reason for its acceptance. As observed in Hull v Thompson [2001] NSWCA 359 at [21] (Rolfe AJA, Sheller JA and Davies AJA agreeing), “prima facie, if there is no cross-examination of an expert … there is no basis for a Judge not to accept the unchallenged evidence”. However, as the court there noted, it depends on the evidence in question, and where a report is ex facie illogical or inherently inconsistent, where it is based on an incorrect or incomplete history, or where the assumptions on which it is founded are not established, the report may be rejected or subject to criticism or doubt. But “in the absence of some such matters, there is no rational reason not to accept unchallenged evidence”; see Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [130] (Beazley JA, Macfarlan and Basten JJA agreeing); Lloyd v Thornbury [2019] NSWCA 154 at [152] , [153] (Gleeson JA, Meagher and White JJA agreeing). Burley J referred to the following relevant passages from Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [132]–[133] and [135], where Beazley JA said (Macfarlan and Basten JJA agreeing): …a trial judge placed in that position by the parties, is required to analyse the evidence in order to make findings on the issue to which the experts’ evidence is directed. This may and usually does involve the acceptance of one expert or group of experts over another, not on the basis of a demeanour finding, which is unavailable when none of the experts is cross-examined, but on the cogency of the evidence, given the issues addressed.…The trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other: see Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA. This approach to the consideration of expert evidence and the determination of issues to which the expert evidence related is well-established in Australian jurisprudence, as the summary of cases in Wiki v Atlantis Relocations demonstrates. See also Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129] –[130] per Hayne J……In my opinion, this approach applies a fortiori where there has been no cross-examination. There has to be a reasonable basis as to why some evidence is accepted and other evidence is not. In that regard, the evidence cannot be considered in isolation from other evidence. The cogency of the experts’ evidence is dependent upon there being a basis established in the evidence for the views expressed.
Decision
Reasons for decision
On 28 August 2023, Rares J handed down a decision in which his Honour found that St Basil’s contravened ss 340(1)(a) and 351(1) of the FW Act: see Han v St Basil’s Homes [2023] FCA 1010 (Liability Judgment or LJ). His Honour made orders for the service of evidence and submissions in relation to the questions of remedy. Shortly prior to his Honour’s retirement from the Court, the matter was allocated to my docket. Since that time, there were delays involved in listing the hearing before me due to disputes between the parties in arranging for Ms Han to be assessed by an independent medical practitioner at the request of St Basil’s. The parties’ respective positions as to the orders that should now be made were both ambitious. The claims made on Ms Han’s behalf paid little attention to the statutory norm at stake. They also paid little attention to the findings made by Rares J and the actual evidence before me. Ms Han advanced a claim for compensation and penalties totalling $2,471,381.65. The Damages Schedule provided in support of Ms Han’s claim lacked precision and bore little relationship to the statutory and evidentiary foundations for the amounts claimed. In response, St Basil’s contended that nothing more than a nominal amount of compensation should be awarded and that no penalties should be imposed. That position too was ambitious. It paid scant regard to the fact that Rares J had found that St Basil’s contravened important provisions of a Commonwealth law designed to protect workers like Ms Han from exactly the type of detriment to which she was subjected. Ms Han was entitled to protection from the taking of adverse action against her because of her exercise of workplace rights and because of her race. These propositions are as obvious as they are fundamental to the protections afforded by the FW Act. I am satisfied that Ms Han has made out a claim for the payment of compensation and the imposition of penalties, but not to the extent of her claims. These are my reasons for ordering that St Basil’s pay to Ms Han the following amounts: (a)$175,000 for past economic loss;(b)$61,559.62 for future economic loss; (c)$75,000 for general damages; and(d)$10,000 future out of pocket expenses. I have structured my reasons as follows: (a)Part 2 sets out the relevant evidence;(b)Part 3 summarises the salient findings made by Rares J in the Liability Judgment; (c)Part 4 addresses the claims for compensation; (d)Part 5 addresses the claims for the imposition of penalties; and(e)Part 6 sets out my disposition of the proceedings.2. THE EVIDENCE The evidence before me was contained in a Joint Court Book, which also included the parties’ pleadings and submissions. The Joint Court Book also included the evidence that was before Rares J. The affidavits contained in that Joint Court Book were read without objection, the outlines of evidence were tendered (again without objection) and the various expert reports were also tendered, again, without objection.
Ratio Decidendi
Legal Principle Established
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