Wang v Odyssey Trading Pty Ltd
[2021] FedCFamC2G 34
•2 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Odyssey Trading Pty Ltd [2021] FedCFamC2G 34
File number(s): MLG 2554 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 2 September 2021 Catchwords: INDUSTRIAL LAW – Ex tempore ruling on parties – competing interlocutory applications Legislation: Evidence Act 2008 (Vic.)
Fair Work Act 2009 (Cth)
Cases cited: ABCC v O’Halloran [2020] FCA 1291
ASIC v Mining Projects [2007] FCA 1620
Fair Work Ombudsman v Hu [2017] FCA 1081
Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 2 September 2021 Date of hearing: 2 September 2021 Place: Melbourne and Dandenong Solicitor for the First Applicant: Mr K Esser of Esser Legal Counsel for the First Respondent: Mr Levine Solicitor for the First Respondent: Maciel Pizzorno & Co ORDERS
MLG 2554 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2 BETWEEN: JIMEI WANG
Applicant
AND: ODYSSEY TRADING PTY LTD
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant make available for inspection by the respondent’s solicitors (and any expert) as soon as practicable:
(a)Original documents constituted from annexure JW-16 of the applicant’s affidavit filed 18 June 2021.
(b)Original documents constituted from annexure JW-20 of the applicant’s affidavit filed 18 June 2021.
2.The applicant make available to the solicitors for the respondent on or before 10 September 2021 legible copies of:
(a)Annexure JW-20 of the applicant’s affidavit filed 18 June 2021 if practicable
(b)Annexure JW-26 of the applicant’s affidavit filed 18 June 2021
3.There be liberty to apply on usual terms.
4.All interlocutory applications otherwise be dismissed.
5.No orders as to costs.
6.The matter is adjourned to trial as fixed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
REASONS FOR JUDGMENT
Revised From TranscriptJUDGE BURCHARDT:
These reasons for judgment, which have been prepared in some haste given that I go on leave very shortly, will be transcribed and forwarded to the parties as soon as practicable once they have been edited.
On 19 May 2021 I made orders. Relevantly, I required the applicant to file and serve
an affidavit on or before 16 June 2021, and I ordered the respondents to file and serve any application to amend or withdraw their defences by 30 June 2021. The applicant filed
an affidavit on 23 June 2021, one week late. The respondents did not file any application of the sort envisaged.
On 10 August 2021, the applicant filed an application in a case. First, it sought discovery of employee records required to be kept by section 535 (1) of the Fair Work Act 2009 (Cth)
(“the Act”) and, secondly, that the respondents file affidavits. The affidavit in support filed
by Mr Esser sworn 2 August 2021 deposes that there have been no payslips provided save
JW-18 and there have been no end of year payment summaries as required by legislation.
It was asserted that these were necessary to calculate the quantum of underpayments alleged. By a letter dated 10 June 2021, the respondents’ solicitors had objected to this and pointed out that inter alia the applicant had not been an employee since 13 February 2017.
The court had, in fact, already refused an application of the discovery in a judgment given
on 27 November 2020 at [35], albeit that that was somewhat pre-emptory in its terms. Discovery, of course, in this court is discretionary pursuant to section 45 of the Act.
I turn to the judgment of Rangiah J in Fair Work Ombudsman v Hu [2017] FCA 1081 at [15] where his Honour said, relevantly:
Penalty privilege does not apply to a corporation: s 187 of the Evidence Act 1995 (Cth). However, a Court should not make an order requiring a corporate respondent to make discovery if, by complying with that order, a natural person would be denied the privilege the person is otherwise entitled to:
Now, here, of course, the respondents have filed a defence on 8 February 2021. By paragraph 3, it is asserted that the applicant was employed as a travel consultant from 5 August 2013
to 12 February 2017 but thereafter was an independent contractor. By paragraph 5, it is asserted and conceded that the relevant award applied to the employment form 5 August 2013 till 12 February 2017, but it is denied that the applicant was employed at level 7 within the award’s bands. Paragraph 6 responds to the applicant’s overtime claims but does not respond in terms, other than by denial, to the other award-based claims in the statement of claim. Paragraph 7 denies the applicant’s claims for overtime and the like.
It is arguable in the circumstances, of course, that the respondents have waived penalty privilege, but I would refer to the judgment of the Full Court of the Federal Court in Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190 at [87] where the court said relevantly
for these purposes, and I omit the various citations of authority:
Although there is a close affinity between the privilege against self-incrimination and the penalty privilege, they are distinct. While the privilege against self-incrimination applies to non-judicial as well as judicial proceedings, the penalty privilege does not apply outside judicial proceedings, and has not been recognised by the High Court as a substantive rule of law. The penalty privilege has a confined operation, and its purpose is to ensure that those who allege criminality or other illegal conduct should prove it. The penalty privilege may be invoked in judicial proceedings to resist a requirement that a defence be filed that complies with the rules of pleading, to resist an order for the filing of witness statements, to resist answering interrogatories, and to resist the production of documents by way of discovery, or in response to a notice to produce or subpoena.
Now, in this case the applicant has a reasonably good idea of the respondents’ case from the defence that has been filed. This set of circumstances raises some nice points.
First, has the respondent waived privilege? In Hu, to which I’ve already referred, at paragraphs [21], [22], and [27], Rangiah J relevantly said:
The admission of allegations made in a statement of claim constitutes a waiver of privilege against self-exposure to a penalty.
I accept that Mr Marland has waived penalty privilege in respect of the admissions and positive assertions of fact made in the defence. However, there is no indication of any intention to waive privilege in respect of any other facts or matters. The waiver goes no further than the facts and matters admitted and asserted in the defence.
In my opinion, the judgment of Gibbs CJ in Attorney-General v Maurice does not stand for the proposition that privilege cannot be waived by a lawyer’s actions unless the lawyer has received the instructions of the person entitled to the privilege to waive privilege. In fact, privilege may be waived by the actions of a lawyer acting with the ostensible authority of the person entitled to claim privilege.
The next point to be noted is that the respondent is required to keep records for seven years pursuant to section 535 of the Act. Payslips are required by section 536. Pursuant to regulation 3.42, the employer must make such records available upon request. It is a nice issue whether penalty privilege overrides the Act and regulations. It is certainly an anomaly that the employee can insist on the provision of these records prior to issuing proceedings but might face
a privilege defence after they have started, but in this instance the applicant says that she kept detailed records. She says she knows the hours she worked. She does not need the pay and other records to determine quantum. These can be worked out by applying the award
to the hours she says she worked. Pursuant to s 45 of this Court’s Act as I have already said, discovery is discretionary. In the circumstances as I have described them,
it is inappropriate to declare discovery either generally or on a more limited basis.
There is also, of course, an application that the respondents file affidavits. This is not exactly either opposed or adopted by the respondents. Rather, they say that they should file affidavits, if any, within six weeks. It would be implicit, I would assume, in that submission that the respondents would be, as it were, putting themselves to an election. In my view, that is not satisfactory. The respondents might well decide for good reason not to file any affidavits but then find that the ground shifts during the trial. In this regard, I would refer to ABCC v O’Halloran [2020] FCA 1291 at [30] where Collier J said this, quoting from an earlier decision of Finkelstein J in ASIC v Mining Projects [2007] FCA 1620 as follows:
There is a potential problem if, as in this case, the defendant wishes to run a positive case. Ordinarily, a positive case must be raised in the defence. Whether it must be raised in a defence in a civil action to recover a penalty is by no means clear. The view I favour is that there can be no such requirement as it would be inconsistent with the privilege. On the other hand, if a defendant who wishes to run a positive case is required to plead his case that can be accommodated while maintaining the privilege. What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff’s case is concluded. If at that point the defendant decides to run a positive case, he can deliver an amended defence that will outline his case. In an exceptional case the judge may grant a short adjournment to allow the plaintiff time to prepare if he is otherwise taken by surprise. In most cases that will not be necessary. By the time the plaintiff has closed his case the nature of the defence will usually be apparent. That is the experience of those who prosecute criminal cases. The advocate who runs a civil penalty proceeding should be equally adept at dealing with the defendant and his witnesses without knowing in advance every word they are to say.
That formulation of the matter adopted by Finkelstein J was expressly adopted by Collier J at [81] in that judgment, and I propose to apply it here - that is to say, if we reach the point of the respondent going into evidence. The defence has been filed. The respondent’s case should be clear by the time the applicant’s case is finished. I do not propose to order the respondents to put on affidavits.
The respondents have also filed an application on 10 August 2021. I note that the second respondent’s name is spelled Zhang – Z-h-a-n-g – which I think is different from some earlier iterations. The name must be clarified by the time the trial starts. If one turns to the orders sought, and if you will bear with me for a moment, I will just bring up the actual application itself out of the file. The first matter sought is orders for production of the material in JW6 to the applicant’s affidavit. That is an obvious typographical error. It means JW16. Inspection is also sought. What the applicant herself said about this material is at paragraph 164 of her trial affidavit, and what she said was – 134, my error:
I kept a record of the hours I worked at Odyssey. I wrote this down on pieces of paper until January 2018 when I wrote them in an Excel spreadsheet. Sometimes, I wrote the hours down on the same day, sometimes I wrote them down during the same week. I wrote down my daily hours and my overtime hours. I kept all of these. Annexed hereto and marked JW16 is a copy of all the records I kept of my working times other than February 2014 to June 2014.
So these are said to be, in effect, contemporaneous records and clearly in principle they should be inspected. The question then arises how this is to be done. We presently face restrictions in the COVID pandemic, and it may not be readily practicable for Mr Angelatos or any other solicitor acting on behalf of the respondents to actually go to Mr Esser’s office.
As far as I am concerned, there ought to be standard inspection of the original documents and Mr Angelatos should be permitted to take any expert with him. If there are further applications for further dealing with those materials, then that can be made afterwards. If it is necessary,
I will be in a position to make an order that would assist the inspection process in the sense that I can make an order directing Mr Angelatos or such other nominated persons as may be put forward to attend Mr Esser’s office. That, I think, would be sufficient to deflect, one would assume, any authority seeking to interview them as to their purpose.
The second matter sought is inspection of emails and the related hardware to annexure JW20. At paragraph 139 of the affidavit, Ms Wang deposes:
I often wrote to Min, the Odyssey accountant, when I did extra days. Annexed hereto and marked JW20 is a bundle of those emails.
The respondent says they can’t read them. In my copy, some details are clear, and some are not. Clearly, once again, the originals should be inspected and, if necessary, by an expert.
It is not clear whether those aspects of these records that are presently not readable are material or not. Any application as to further dealing with those documents can be made after inspection has occurred.
The next matter sought in order 1(c) of the interim application relates to JW22. What the applicant said at paragraph 141 was:
I have some screenshots on my computer that show some work I did as overtime. This is not all the work I did, and this is not all the days I have worked. It shows some records that show I was working. Annexed hereto and marked JW22 is a copy of those screenshots.
When one turns to JW22, they are first of all unreadable. Secondly, it is not in any sense clear that they are contemporaneous. They appear from the text of the affidavit to be self-serving. In my view, it is inappropriate to admit these documents at all. How much the applicant worked will probably turn more on oral evidence and what are allegedly the contemporaneous records. The applicant’s affidavit says in some detail what pattern of hours she worked, and there is exhibit JW16 and the affidavit evidence before the court. Section 135 of the Evidence Act 2008, as is well known, gives the court a residual discretion as to material. Relevantly,
it is in these terms:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be
(a) unfairly prejudicial to a party;
(b) or misleading or confusing;
(c) or cause or result in undue waste of time.
In my view, all of those descriptors apply to this material, and JW22 will simply not be admitted.
Then, we come to subparagraph (d) of clause 1 of the interim application. That seeks the applicant’s personal diary and WeChat, and the hardware upon which it is located, referred to in paragraph 7 of the applicant’s affidavit dated 21 August 2020. Once again, if you will bear with me, I shall get that out and read it. What the applicant said at paragraph 7 of that affidavit was:
I confirm all these calculations are true and correct and are derived from information set forth in the award and derived from a personal work diary stored on WeChat in Mandarin. This diary was also used by me to provide monthly performance data to the respondent. Every day, I would record work done on an Excel spreadsheet, which in turn would be tabulated as a monthly performance report.
Then, in paragraph 146 of her trial affidavit, she said:
I attach a spreadsheet of my working hours and what I was to be paid under the award. The spreadsheet has all the hours I wrote down in annexure JW16. If I did not write the time down, it did not go into the spreadsheet. Also, the hours on my annual leave that I talk about in paragraph 137 did not go into the spreadsheet. Exhibited hereto and marked JW26 is a copy of the spreadsheet.
JW26 may or may not be the records derived from the WeChat records. It is not clear from the text of the affidavit. There are a number of points to be made: first of all, JW26 must be made available in legible form, if it is to be admissible at all. The respondents are correct to submit that if it’s not legible then they are irrelevant, but I refer once again to section 135 of the Evidence Act 2008. It’s an unusual case because the applicant says she kept the contemporaneous records which are JW16, and those will be tested.
Next, the respondents have or ought to have records from 2013 to 2017 because the claim was filed in 2019, well within the seven-year required retention period. JW26 from the description of it in the affidavit has all the appearance of being self-serving. What the respondents
are in effect seeking is discovery, but the respondents can test the applicant’s oral evidence in cross-examination, they can contest as part of that process the records in JW16, and they also should have their own records, or at least those that they possess. In my view, in all the circumstances, that is enough. The respondents say that the quantum claim is critical,
but I am not at all sure that I agree. The statement of claim pleads hours worked and a flat rate of pay with no overtime in the like, this giving rise to contraventions. The issue of quantum on the statement of claim as amended only arises as a matter of relief. The applicant has pleaded that there will be full particulars provided and JW26 apparently purports to be this.
I do not propose to order discovery now, but I will order the applicant to provide a legible copy of JW-26 by 10 September 2021.
That brings us to paragraph 2 of the interim application. That seeks the non-redacted versions of the applicant’s bank records. The defence has pleaded that from 2017 the applicant was an independent contractor who was providing invoices. The respondents must have them because we are still within the five-year tax retention period. In my view, section 135 applies to this as well. It’s going to be more time and trouble than it is worth. If it becomes apparent that the full text of the bank records is of some significance or relevance, then that can be reconsidered.
The third paragraph seeks to strike out the affidavit in its entirety. There is actually nothing wrong with the affidavit itself, the problem is with the annexures. Unlike the respondents,
I don’t regard the blank pages in the material as being problematic. There is nothing in them. The pagination is not great, but if you buy a set of dividers as we have done in the court,
you will be able to divide all of the annexures up to the 26th one or whatever they finally are, and it will be possible to work through all of that. But when we come to the particular complaints made orally, the respondents say that JW-17 is illegible, and that is correct,
but if one goes to paragraph 135, I think, of the trial affidavit, what the applicant says is:
In August 2020 I used the records to do a spreadsheet for this case about my hours. After I wrote the hours in the spreadsheet, I lost the pieces of paper of February 2014 to June 2014. Annexed here and marked JW-17 is a copy of the spreadsheet I made in August 2020 for February 2014 to June 2014.
The hours of work that are alleged are in the body of the affidavit. JW-17 seems to me to
be self-serving reconstruction and I simply do not propose to admit it. I have already dealt with JW-20 and I have already dealt with JW-22 and JW-26.
This brings us to the order 4 in the interim application. As I said, the blank pages in subparagraph (a) are not a problem. The question of pagination I have already dealt with.
I have already dealt with the question of the provision of illegible copies of the various annexures and the redactions of the bank records.
The next matter is paragraph 5, and I should say I have had careful regard to the correspondence constituted by annexure 12 to Mr Angelatos’s affidavit. So far as the matters contained
in subclause (5)(a) to (e) are concerned generally, it is to be noted that Mr Levine almost conceded that these matters may need to await evidence. Certainly, the question of the level of the employee was employed at under the award will depend on the evidence. Bullying is alleged in annexure JW-6 to the trial affidavit which is the complaint to the Fair Work Ombudsman. The respondents are correct to say there is but very little about bullying in the trial affidavit, but the allegations in general terms, at least, are in the earlier affidavit of 21 August 2020. I accept that there is some force in the respondents’ submission about this aspect of the matter, but in the ultimate it must await the hearing of evidence.
The next matter is that an assertion that the applicant was dismissed on 2 April 2020.
In fact, the allegation is the dismissal on 2 April 2019 in the statement of claim. That plainly will need to await evidence as will the question of any involvement of the second respondent pursuant to section 550 of the Act. Accordingly, I do not propose to strike out those aspects of the statement of claim and having said that it’s immediately apparent that the same fate awaits the application in paragraph 6 of the interim application. That deals with all matters save costs.
A further matter I should traverse is the question of a split trial which I raised and canvassed with the parties during the earlier hearing. It is not necessary to cite the very extensive authority about the dangers of splitting trials. They are well known and have been referred to in all too numerous decisions of the Federal Court and Full Court. I will, of course, split any assessment of any penalties until the question of contraventions is determined. That is absolutely standard practice in this field, and the reasons for it are self-evident. I will otherwise, however,
as the respondents urge keep all issues including quantum in the case. As I say, whether quantum is as important as the respondents apparently regard it is something I’m not entirely sure of, but one of the difficulties is that this case has a certain ambulatory quality on both sides and it is inappropriate to bifurcate the case in the fashion that the applicant has urged and matters may need to be reconsidered in case management continued to the trial. And the orders I am therefore going to make which give a reflection to these various conclusions are as follows:
ORDERS DELIVERED
I will grant liberty to apply on the usual terms, namely that any application is done by email
to my associate and copied on its face to the other side. Otherwise, all interlocutory applications are dismissed, but that does still leave the question of costs. On her own application, the applicant has been unsuccessful but only on discretionary grounds.
The respondents have indeed filed a defence and in the circumstances the application that the applicant made was not unreasonable.
Secondly, the respondents have been partly successful and partly not on their application.
To the extent that they have not succeeded, likewise they have failed on discretionary grounds. Some of the complaints about the applicant’s affidavits are true but others are not. I think such matters as the blank pages really should never have troubled the keeper. It needs to be remembered that pursuant to section 570 of the Fair Work Act, the substantive or primary position is that this is not a costs jurisdiction. I decline to make costs orders in respect of either application in the case. The matter is adjourned to trial. If any fine-tuning is needed in the meantime, it will be done by liberty to apply.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 2 September 2021
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