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Optus Administration Pty Ltd v Saluwadana

Optus Administration Pty Ltd v Saluwadana

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Case Copied 11 May 2023 37 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00195

OPTUS ADMINISTRATION PTY LTD (ACN 055 136 804)	Plaintiff
v
NAJ SALUWADANA	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2023
DATE OF JUDGMENT:	11 May 2023
CASE MAY BE CITED AS:	Optus Administration Pty Ltd v Saluwadana
MEDIUM NEUTRAL CITATION:	[2023] VSC 243

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ADMINISTRATIVE LAW — Judicial review — Statutory interpretation — Decision of the Magistrates’ Court of Victoria — Whether magistrate erred in concluding that s 9(2) of the Long Service Leave Act 2018 (Vic) is capable of being alleged and particularised as a continuing offence — Whether presumption of re-enactment applies to equivalent provisions in the Long Service Leave Act 1992 (Vic) and Long Service Leave Act 2018 (Vic) — No error established — Proceeding dismissed — Long Service Leave Act 2018 (Vic), s 9(2) — Long Service Leave Act 1992 (Vic), s 72(2) — Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292.

CRIMINAL LAW — GENERAL MATTERS — Other general matters — Penalty for employer that failed to pay employee full amount of long service leave entitlement on the day that employment ended — Whether penalty provision under s 9(2) of the Long Service Leave Act 2018 (Vic) creates a specific offence or a continuing offence — Penalty provision under s 9(2) creates a continuing offence — Long Service Leave Act 2018 (Vic), s 9(2) — Long Service Leave Act 1992 (Vic), s 72(2) — Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Game SC with Mr M Minucci	Ashurst Australia
For the First Defendant	Ms D Price	Matthew Hocking, Victorian Government Solicitor
For the Second Defendant	No appearance

HER HONOUR:

On 30 March 2021, Naj Saluwadana of the Wage Inspectorate Victoria filed a charge‑sheet with the Magistrates’ Court of Victoria, charging Optus Administration Pty Ltd with five offences under s 9(2) of the Long Service Leave Act 2018 (Vic) (LSL Act). The charge-sheet alleged that Optus had failed to pay five former employees the full amount of their long service leave entitlements. The charges were initially particularised as specific offences that occurred on the date each employee’s employment ended.

The Wage Inspectorate subsequently sought to amend the charges to particularise the offences as continuing offences that occurred between the date on which each employee ceased to be employed by Optus, and the date on which it paid their outstanding long service leave entitlements. Optus opposed the amendment. On 17 December 2021, Magistrate Foster gave leave to amend the charges, for reasons that were published on 27 January 2022.[1]
[1]Saluwadana v Optus Administration Pty Ltd [2022] VMC 2 (Reasons).

In this proceeding, Optus seeks judicial review of the magistrate’s decision and order made on 17 December…

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.

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Details

Case: [2023] VSC 243
Decision Date: 11 May 2023

CaseChat Overview and Summary

The case of Optus Administration Pty Ltd v Saluwadana involved a challenge to a decision made by the Magistrates' Court of Victoria. The dispute centred on the interpretation of the Long Service Leave Act 2018 (Vic) and whether a specific section could be considered a continuing offence. The appellant, Optus Administration Pty Ltd, argued that a magistrate had erred in their interpretation of the relevant section, which pertains to the penalty for an employer who fails to pay an employee the full amount of long service leave entitlement on the day that employment ends.

The primary legal issue before the court was whether section 9(2) of the Long Service Leave Act 2018 (Vic) constitutes a specific offence or a continuing offence. Additionally, the court had to determine whether the presumption of re-enactment applies to equivalent provisions in the Long Service Leave Act 1992 (Vic) and the Long Service Leave Act 2018 (Vic). The appellant argued that the magistrate had misapplied the law by treating the section as a continuing offence, which would have broader implications for the enforcement of the Act. The court had to carefully consider the wording of the relevant sections and the legislative intent behind them.

The court found that the magistrate had not erred in their interpretation of section 9(2) of the Long Service Leave Act 2018 (Vic). The court reasoned that the penalty provision in the section does indeed create a continuing offence, meaning that each day of non-compliance constitutes a separate offence. The court further determined that the presumption of re-enactment did not apply to the equivalent provisions in the Long Service Leave Act 1992 (Vic) and the Long Service Leave Act 2018 (Vic), as the legislative intent was clear and unambiguous. The court dismissed the proceeding, affirming the magistrate's decision and upholding the interpretation of the relevant sections of the Act.

As a result of the court's decision, the proceeding was dismissed, and the magistrate's interpretation of section 9(2) of the Long Service Leave Act 2018 (Vic) was upheld. The court's reasoning and application of the relevant statutory provisions provided clarity on the nature of the offence and reinforced the legislative intent behind the penalty provisions. The decision in this case serves as a valuable guide for future cases involving the interpretation and enforcement of long service leave provisions under the relevant Acts.

Orders