Thangasamy v First Penny Investments Pty Ltd
[2025] FedCFamC2G 611
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thangasamy v First Penny Investments Pty Ltd [2025] FedCFamC2G 611
File number(s): SYG 658 of 2023 Judgment of: JUDGE LAING Date of judgment: 17 April 2025 Catchwords: PRACTICE AND PROCEDURE – Application for leave to reopen where applicant’s evidentiary case had closed but final addresses had not been completed and judgment had not been reserved – limited tender of potentially relevant documents sought – application unopposed – where third and fourth respondents also sought leave to rely upon further evidence – leave to reopen granted and associated timetable ordered by consent Legislation: Corporations Act 2001 (Cth) s 471B
Fair Work Act 2009 (Cth) s 550
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Cases cited: Shum v Southern Migrant and Refugee Centre Inc (No 2) [2023] FedCFamC2G 1006 Division: Fair Work Number of paragraphs: 13 Date of hearing: 17 April 2025 Place: Sydney Solicitor for the Applicant: Mr S Barry of Thurlow Fisher Lawyers First & Second Respondents: No appearance Third Respondent: Appearing by AVL Fourth Respondent: Appearing by AVL ORDERS
SYG 658 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOSES SUJIT THANGASAMY
Applicant
AND: FIRST PENNY INVESTMENTS PTY LTD ACN 621 436 735
First Respondent
TRUE ALTITUDE PTY LTD ACN 660 865 912
Second Respondent
MICHAEL JONATHAN GALE (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
17 APRIL 2025
BY CONSENT, THE COURT ORDERS THAT:
1.The applicant file and serve further submissions as discussed at hearing by 1 May 2025.
2.The third and fourth respondents have leave to file and serve evidence and submissions by 30 May 2025.
3.The applicant has leave to file and serve any submissions and evidence in reply by 6 June 2025.
4.The hearing be adjourned to 20 June 2025 at 1:00pm (AEST).
5.The applicant has leave to rely upon the documents identified as MFI1, MFI2 and MFI3 at the hearing today.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE LAING:
This matter concerns an application by the applicant (Mr Thangasamy) for compensation, penalties and other orders following from what are alleged to have been contraventions of the Fair Work Act 2009 (Cth) (FW Act) by the first respondent (First Penny), or alternatively by First Penny and the second respondent (True Altitude). The third and fourth respondents (respectively, Mr Gale and Ms Swartz) are contended to be liable for the alleged contraventions pursuant to s 550 of the FW Act.
This matter has not proceeded in an entirely smooth manner. It has been complicated by (amongst other things) developments both in Australia and overseas. Over the course of the matter, First Penny has gone into liquidation with the result that the proceeding against it is stayed: s 471B of the Corporations Act 2001 (Cth). Although True Altitude was briefly represented, that representation was withdrawn and True Altitude has made no appearance, thus far, at the hearing of the matter.
The matter was listed for two half days of hearing, scheduled to occur yesterday and today. The reason for the scheduling of half days in the afternoon was to accommodate difficulties faced by Mr Gale and Ms Swartz with time differences, as they are located overseas.
In the lead up to the hearing, evidence and submissions had been filed and served on behalf of Mr Thangasamy. However, the submissions were relatively limited in content. They did not, in my respectful view, go into the level of detail that would have allowed Mr Thangasamy’s opponents (who are self-represented) a clear understanding of the case that was being put forward by Mr Thangasamy by reference to legal principles and the evidence specifically relied upon by reference to those principles. Attention was drawn to cases relied upon (and the principles said to follow from those cases) for the first time at hearing. There are still aspects of Mr Thangasamy’s case that require further clarification and explanation.
Neither Mr Gale nor Ms Swartz filed or served any submissions or evidence in accordance with the timetable set by the Court in advance of the hearing. In result, Mr Thangasamy was faced with challenges to the case that he relied upon (largely through questions asked by the Court) on the first day of hearing that he may or may not have anticipated.
At the hearing today, two applications were made orally. The first was an application by Mr Thangasamy for leave to reopen in order to rely upon three email chains. This evidence is, on its face, clearly relevant to Mr Thangasamy’s case including his case under s 550 of the FW Act.
The second application was made by Mr Gale and Ms Swartz, who seek leave to provide evidence in support of their respective cases that has not previously been provided to Mr Thangasamy or the Court.
It is clear that some further hearing time will need to be allocated in this matter, regardless of the fate of the applications I have described. The second half day of hearing has nearly concluded and Mr Thangasamy’s submissions in chief have not concluded. Mr Gale and Ms Swartz still require an opportunity to be heard. They have sought, and procedural fairness requires, that this opportunity occur after they have been given some further opportunity to consider what has been raised by Mr Thangasamy.
The appearing parties, by consent, mutually seek that leave be granted to Mr Thangasamy to rely upon the proposed emails and that Mr Gale and Ms Swartz be given an opportunity to file and serve further evidence. They also seek a timetable regarding submissions and any evidence in reply, followed by a further hearing date. They seek that such orders be made expeditiously, today, without the need for consideration of any more formal application or delay that its resolution may involve.
I accept that the approach sought by the parties, in this regard, is consistent with the Court’s case management obligations under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In circumstances where the parties are in agreement with the course proposed, delaying the matter in order for the applications proposed to be more fulsomely advanced and determined seems to be inconsistent with such obligations. This is in a context where I have found that the matter will need to be listed for further hearing on a future date in any event.
I have considered the principles associated with leave to rely upon further evidence, including in the context of an application to reopen. Although I was not taken in detail to relevant cases on the subject by the parties this afternoon, I note that such principles were considered by Judge Forbes in Shum v Southern Migrant and Refugee Centre Inc (No 2) [2023] FedCFamC2G 1006 at [15]-[26] in the context of an application for leave to reopen after the close of evidence but before reservation of judgment. In this case the evidence proposed is, on the face of it, of clear relevance to the case at hand. No particularly satisfactory explanation for its late provision has been provided – Mr Thangasamy appears to have not previously identified it as relevant with the result that it had not been communicated to his lawyer. However, the respondents did not contend any prejudice provided that they be allowed an opportunity to respond with their own evidence. Mr Gale expressed a desire to rely upon one of the chains of emails in his own evidence in any event.
I am persuaded that the interests of justice are better served by granting rather than refusing the application for leave to reopen. As I have already stated, I consider that the interests of justice, and procedural fairness, also favour Mr Gale and Ms Swartz being provided with some further opportunity to rely upon evidence. This is on the condition that Mr Thangasamy be given a resulting opportunity to rely upon evidence in reply.
For the foregoing reasons, I have made procedural orders consistent with the course that has been sought by the appearing parties.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 28 April 2025
SCHEDULE OF PARTIES
SYG 658 of 2023 Respondents
Fourth Respondent:
AMY LYNN SWARTZ
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