Scotto v Scala Bros Pty Ltd

[2012] FMCA 1275

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOTTO v SCALA BROS PTY LTD & ANOR [2012] FMCA 1275

Catchwords:
PRACTICE & PROCEDURE – Notice to produce set aside – documents sought not relevant to issues before Court.

Legislation:

Fair Work Act2009, s.545

Applicant: PAUL SCOTTO

First Respondent: SCALA BROS PTY LTD (ABN 66 000 104 870)

Second Respondent: GIUSEPPINA BOSSI

File Number: SYG 2333 of 2010

Judgment of: Judge Cameron

Hearing date: 20 June 2012

Date of Last Submission: 20 June 2012

Delivered at: Sydney

Delivered on: 20 June 2012

REPRESENTATION

Counsel for the Applicant: Mr M. Seck

Solicitors for the Applicant: Thomsons

Counsel for the Respondents: Mr B. Cross

Solicitors for the Respondents: Australian Business Lawyers

ORDERS

1. The applicant’s notice to be produce be set aside.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2333 of 2010

PAUL SCOTTO

Applicant

And

SCALA BROS PTY LTD (ABN 66 000 104 870)

First Respondent

GIUSEPPINA BOSSI

Second Respondent

REASONS FOR JUDGMENT

1. The applicant alleges that he has been denied certain of his industrial entitlements by the first respondent and that the second respondent has accessorial liability for at least some of the contraventions that he alleges.  The applicant has served a notice to produce requiring production of certain financial records of the first respondent.  The applicant’s concern is that if he is successful in the proceedings the first respondent may nevertheless have insufficient funds to meet whatever compensation order the Court might make, and thus resort would have to be had to the second respondent’s resources.

2. That is to say, the issue which is raised concerns what orders might be made against the first and the second respondents if the applicant is successful against both of them. The Court does have a wide discretion under s.545 of the Fair Work Act2009 as to the compensation which may be ordered if contraventions are found.  Therefore, there is arguably a legitimate forensic purpose in seeking production of the documents referred to in the notice to produce, in terms of the order which the Court might make if the applicant is successful. 

3. However, the notice to produce is concerned with the formulation of an order or the working out of a judgment, should there be one.  For that reason, I consider the raising of this issue at this point to be premature and that the documents, should they be produced, to not truly be relevant to the matters currently before me for decision, namely, whether the applicant was not paid his full entitlements in contravention of the relevant industrial legislation, who was responsible for that, what penalties might be imposed for such contraventions and what compensation might be ordered consequent upon a finding of contravention.

4. Once those issues are determined, orders can be formulated and the documents which the applicant presently seeks will have relevance. 

5. The notice to produce will be set aside.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 20 February 2015