Zou v Superway Pty Ltd - [2021] FedCFamC2G 144

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISON 2)
Zou v Superway Pty Ltd [2021] FedCFamC2G 144

File number: SYG 1477 of 2021

Judgment of: JUDGE CAMERON

Date of judgment: 15 October 2021

Catchwords:
PRACTICE & PROCEDURE – Security for costs – relevant considerations in a proceeding brought under the Fair Work Act 2009.

INDUSTRAL LAW – Policy of s.570 of the Fair Work Act 2009 (Cth) – interaction of s.570 with general law principles governing availability of security for costs.

Legislation:
Fair Work Act 2009 (Cth), ss.325, 569, 569A, 570

Federal Circuit and Family Court of Australia Act 2021 (Cth), ss.214, 215

Foreign Judgments Act 1991 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.22.01

Cases cited:
Liu v Stephen Grubits and Associates (2019) 284 IR 475

Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972

Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd (2020) 300 IR 446

Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428

Division: Fair Work Division

Number of paragraphs: 29

Date of hearing: 6 October 2021

Solicitor for the Applicant: Mr L. Meagher (Clayton Utz)

Counsel for the Respondents: Mr I. Latham

Solicitor for the Respondents: Juris Cor Legal
ORDERS

SYG 1477 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ZHENG ZOU

Applicant

AND:
SUPERWAY PTY LTD ACN 133 268 890

First Respondent

WEIMING ZHI

Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

15 OCTOBER 2021

THE COURT ORDERS THAT:
1.The respondents’ application for security for costs be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors 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).
REASONS FOR JUDGMENT
JUDGE CAMERON

The applicant, Zheng Zou, an international student presently enrolled at Western Sydney University but resident in China by reason of border closures, has brought this proceeding alleging that the respondents, Superway Pty Ltd (“Superway”) and Weiming Zhi, have contravened s.325(1) and s.325(1A) of the Fair Work Act 2009 (Cth) (“FW Act”). He alleges that for two and a half years he was employed by Superway, of which Mr Zhi was a principal, and that during his employment he had been required to repay a portion of his Superway wages to Superway or to Mr Zhi. He now seeks compensation for those “cash back” payments of $26,968.05 plus interest together with pecuniary penalties.
On 13 September 2021 the respondents filed an application in a proceeding seeking orders that Mr Zou give security for the respondents’ costs in the amount of $50,000.
For the reasons which follow that application will be dismissed.
LEGISLATION
Section 215 of the Federal Circuit and Family Court of Australia Act

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: [2021] FedCFamC2G 144
Decision Date: 15 October 2021

CaseChat Overview and Summary

The case of Zou v Superway Pty Ltd involved a proceeding brought under the Fair Work Act 2009, with Mr Zou, a student and resident of China, bringing an action against Superway Pty Ltd. The primary dispute revolved around the availability of security for costs, which Mr Zou sought to have dismissed. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were the relevant considerations in determining the availability of security for costs in a proceeding brought under the Fair Work Act 2009. The court needed to consider the policy of section 570 of the Act and the interaction of this section with the general law principles governing the availability of security for costs. The court was also tasked with assessing the likelihood of costs being awarded in the case, given the specific circumstances of the parties involved, and the potential impact on Mr Zou’s ability to pursue the proceeding.

The court carefully weighed the factors relevant to the application for security for costs. It noted that while Mr Zou’s residence in China would typically weigh in favour of ordering security, this was counterbalanced by the significant likelihood that costs would not be awarded due to section 570. Additionally, the court considered that an order for security might stultify the proceeding, which would be contrary to the policy of section 570 and the general principles governing such applications. The court also acknowledged the public interest in contraventions of the FW Act being identified and sanctioned. Ultimately, the court concluded that there was no cogent reason to believe that the proceeding was vexatious or unreasonable, and thus exercised its discretion in Mr Zou’s favour.

In conclusion, the court dismissed the respondents’ application for security for costs, finding that the proceeding should not be stayed or delayed due to the lack of security. The court's decision was based on the absence of any convincing evidence of vexatious or unreasonable litigation, the policy considerations under section 570, and the public interest in enforcing the Fair Work Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the present interlocutory application involves an exercise of discretion I should also observe that although Mr Zou’s present residence in China would ordinarily weigh heavily in favour of security being ordered, that is more than balanced by the significant likelihood that because of s.570, costs will not be awarded in this case. Further, although it was not canvassed, I am also concerned that, as Mr Zou is a student, an order for security of any magnitude might stultify the proceeding, which would be contrary to the policy of s.570 as well as being a factor under the general principles relevant to applications for security for costs which would not be supportive of an application such as the present. Finally, I note that pecuniary penalties are sought. There is public interest in contraventions of the FW Act being identified and sanctioned for the benefit of the community generally. In the absence of any cogent reason to believe that the proceeding is vexatious or unreasonable, and no such reason has been made out to me, the public interest favours an exercise of discretion in Mr Zou’s favour.CONCLUSION The respondents’ application for security for costs will be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYG 1477 of 2021
Judgment of:	JUDGE CAMERON
Date of judgment:	15 October 2021
Catchwords:	PRACTICE & PROCEDURE – Security for costs – relevant considerations in a proceeding brought under the Fair Work Act 2009. INDUSTRAL LAW – Policy of s.570 of the Fair Work Act 2009 (Cth) – interaction of s.570 with general law principles governing availability of security for costs.
Legislation:	Fair Work Act 2009 (Cth), ss.325, 569, 569A, 570 Federal Circuit and Family Court of Australia Act 2021 (Cth), ss.214, 215 Foreign Judgments Act 1991 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.22.01
Cases cited:	Liu v Stephen Grubits and Associates (2019) 284 IR 475 Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd (2020) 300 IR 446 Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428
Division:	Fair Work Division
Number of paragraphs:	29
Date of hearing:	6 October 2021
Solicitor for the Applicant:	Mr L. Meagher (Clayton Utz)
Counsel for the Respondents:	Mr I. Latham
Solicitor for the Respondents:	Juris Cor Legal

SYG 1477 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ZHENG ZOU Applicant
AND:	SUPERWAY PTY LTD ACN 133 268 890 First Respondent WEIMING ZHI Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	15 OCTOBER 2021