Andromedas v Retail Food Group Limited [2025] FedCFamC2G 1283

Claim against RFG for accessorial liability in the statement of claim

1. The applicant pleaded in the statement of claim against RFG that it was a "responsible franchisor entity" of the Liverpool Franchise within the meaning of s 558A(2) of the FW Act, and was liable for the contraventions of the franchisee, Vinpetrin.

1. On 14 November 2024, RFG filed a defence pleading that at no time had RFG been the "responsible franchisor entity" of the Liverpool Franchise within the meaning of s 558A(2) of the FW Act.

1. In the affidavit of Mr Zaven Mardirossian (Mr Mardirossian), solicitor for RFG, dated 21 November 2024, Mr Mardirossian stated that only a copy of the execution page to the franchise agreement entered into by the franchisee, Vinpetrin, was provided to the applicant's solicitors. The single page of the execution showed it was executed by CGP, Vinpetrin and Mr Petrinovic.

1. On 22 November 2024, the matter came before me for a first court date. On that day, I ordered that RFG provide a complete copy of the franchise agreement to the applicant.

Application and determination of a summary judgment application by RFG

1. On 9 December 2024, RFG filed an application in a proceeding for summary dismissal of the applicant's claims, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), against RFG on the basis that the applicant could not establish RFG was a "responsible franchisor entity" of the Liverpool Franchise within the meaning of s 558A(2)(a) and (b) of the FW Act.
2. On 9 December 2024, RFG filed written submissions in support of the summary judgment application and an affidavit of Mr Gabriel Sakkal (Mr Sakkal), solicitor for RFG, affirmed on 9 December 2024, which annexed correspondence, and the complete written franchise agreement dated 22 October 2013. On 15 January 2025, the applicant filed an outline of submissions and an affidavit of Mr Kristian Bolwell (Mr Bolwell), solicitor. On 24 January 2025, RFG filed submissions in reply.
3. On 30 January 2025, I heard the summary judgment application. Mr Bolwell, solicitor, appeared for the applicant and Mr Sakkal, solicitor, appeared for RFG.
4. I was satisfied there was no reasonable prospects of success of the applicant establishing that RFG was the franchisor in relation to the Liverpool Franchise. This was because the applicant's success relied on a question of fact, being whether RFG was a franchisor according to the ordinary meaning of that term in relation to the Liverpool Franchise. The franchise agreement and all available evidence disclosed that RFG could not be described as a franchisor within the ordinary meaning of that term as it was not a party to the franchise agreement. However, I was not satisfied that the applicant had no reasonable prospect of successfully prosecuting the part of the proceedings against RFG because it may be open to the applicant to amend the pleading and replead against RFG, pursuant to the accessorial liability provisions of s 550 of the FW Act. For that reason, I was not satisfied that the proceedings against RFG should be summarily dismissed. My reasons are set out in Andromedas v Petrinovic [2025] FedCFamC2G 366.
5. Accordingly, on 20 March 2025 I made orders that the applicant be granted leave to amend the statement of claim in relation to RFG. The applicant also raised that she wished to join CGP as a respondent on the basis that the franchise agreement disclosed CGP was in fact the franchisor. I made orders in relation to the applicant filing and serving a draft statement of claim to join CGP as a respondent.

Notice of discontinuance against Mr Petrinovic and Vinpetrin

1. On 17 February 2025, the applicant filed a notice of discontinuance against Mr Petrinovic and Vinpetrin, who were respectively the first and second respondents.

1. The applicant provided a proposed amended statement of claim dated 16 May 2025, seeking to join CGP as a fourth respondent (ASC). In the ASC, the applicant pleaded as follows:

(a) The applicant was employed at the Liverpool Franchise under an oral agreement made on about 1 October 2013 with Vinpetrin and Mr Petrinovic ([7] of ASC).

(b) The applicant worked at the Liverpool Franchise for the period 1 October 2013 to 1 August 2019 (employment period) making pizzas, serving customers, taking orders by telephone and coordinating deliveries. The applicant resigned from her employment on 1 August 2019 ([10], [11] and [13] of ASC).

(c) During the employment period, the applicant was covered by the Fast Food Industry Award 2010 (Award).

(d) Vinpetrin failed to pay the applicant during the period 2 July 2018 to 1 August 2019 (underpayment period) the following amounts:

(i) $41,791.42 in relation to the minimum rate for ordinary hours under the Award, thereby contravening s 45 of the FW Act ([27] to [30] of ASC);

(ii) $2,001.30 in relation to penalty rates under the Award, thereby contravening s 45 of the FW Act ([31] to [34] of ASC);

(iii) $1,600.61 in relation to overtime rates for ordinary weekly hours under the Award, thereby contravening s 45 of the FW Act ([35] to [38] of ASC);

(iv) $21,337.80 in relation to Sunday overtime rates under the Award, thereby contravening s 45 of the FW Act ([39] to [42] of ASC);

(v) $571.78 in relation to overtime rates for public holiday under the Award, thereby contravening s 45 of the FW Act ([43] to [46] of ASC);

(vi) $1,487.90 in relation to rates applicable for work undertaken during public holiday under the Award, thereby contravening s 45 of the FW Act ([47] to [50] of ASC);

(vii) $1,464.17 in relation to entitlements for rest breaks not taken under the Award, thereby contravening s 45 of the FW Act ([51] to [54] of ASC); and

(viii) $4,301.66 in respect of superannuation entitlements, thereby contravening s 45 of the FW Act ([63] to [66] of ASC).

(e) For the employment period Vinpetrin failed to pay the applicant the following amounts:

(i) $22,059.95 in respect of accumulated annual leave and leave loading, thereby contravening ss 44, 45 and 90(2) of the FW Act ([55] to [58] of ASC); and

(ii) $4,113.95 in respect of accumulated long service leave not taken by the applicant, thereby contravening s 113 of the FW Act and s 4 of the Long Service Leave Act 1955 (NSW) ([59] to [62] of ASC).

(f) The applicant claimed a total underpayment in the amount of $100,730.54 made up of the sums referred to in paragraphs at 16(d)(i) to 16(d)(viii) and 16(e)(i) and 16(e)(ii) of this judgment.

(g) The applicant also claimed non-monetary contraventions of the FW Act in relation to Vinpetrin's failure to issue payslips, keep employee records, and display the Award and National Employment Standards ([93] to [99] of ASC).

(h) CGP granted the franchise in relation to the Liverpool Franchise to the franchisee, Vinpetrin (at [5(d)] and [5(e)] of ASC).

(i) During the relevant period, CGP was a "responsible franchisor entity" of the Liverpool Franchise within the meaning of s 558A(2) of the FW Act because:

(i) it was named the franchisor in the franchise agreement.

(ii) it had a significant degree of influence or control over Vinpetrin's affairs in relation to the operation of the Liverpool Franchise, because the franchise agreement gave CGP a broad control and influence over the operations of the Liverpool Franchise ([105] to [107] of ASC).

Section 550 of the FW Act - accessorial liability

(j) CGP had knowledge of essential facts constituting the contravention of the Award by Vinpetrin; and/or was knowingly concerned in the contravention; and/or was an intentional participant in the contravention based on actual knowledge of the essential facts constituting the contraventions ([104] of ASC).

(k) During the relevant period, CGP was:

(i) aware that the applicant was an employee for the purposes of the FW Act;

(ii) was aware that the applicant was covered by the FW Act;

(iii) was aware that Vinpetrin was an employer for the purposes of the FW Act;

(iv) was aware of the hours and days worked by the applicant;

(v) was aware of the amounts being paid to the applicant;

(vi) was aware that there was an Award that covered the applicant; and

(vii) was aware that the payments to the applicant for wages and superannuation were less than the applicant was entitled to be paid according to the Award.

(l) By virtue of s 550(2) of the FW Act, GCP is taken to have contravened the FW Act in the same ways as Vinpetrin ([104] to [112] of ASC).

Sections 558A and 558B(1) of the FW Act - responsible franchisor entity

(m) By reason of the fact that CGP and Vinpetrin were parties to the franchise agreement, CGP was a franchisor and the franchise agreement gave the franchisor broad control and influence over the operations of the Liverpool Franchise, CGP:

(i) was the "responsible franchisor entity" within the meaning of s 558A(2) of the FW Act ([116] of ASC); and

(ii) knew or could reasonably be expected to have known that the contravention by the franchisee entity Vinpetrin would occur, within the meaning of s 558B(1)(d)(i) of the FW Act, or at the time of the contravention, knew or could reasonably be expected to have known that a contravention by Vinpetrin of the same or a similar character was likely to occur, within the meaning of s 558B(1)(d)(ii) of the FW Act ([117] of ASC).

Application in a proceeding filed on 30 May 2025 to join CGP as a party

1. On 30 May 2025, the applicant filed an application in a proceeding seeking, inter alia, orders that CGP be added as a respondent. The application was supported by an affidavit affirmed on 30 May 2025 by Mr Bolwell, solicitor for the applicant.

Application in a proceeding by RFG and CGP for summary dismissal

1. On 30 May 2025, RFG and CGP filed an application in a proceeding seeking orders pursuant to r 13.13 of the GFL Rules for summary dismissal of the proceedings and an order that the applicant pay RFG and CGP costs incurred.
2. CGP filed submissions dated 29 April 2025 prepared by Ms Julia Watson of Counsel (Ms Watson) opposing leave being granted to join RFG Management Pty Ltd and CGP as parties. Those submissions annexed a draft amended statement of claim dated 10 April 2025, which version of the statement of claim is not the subject of any application before this Court. CGP filed further submissions dated 30 May 2025 prepared by Ms Watson in support of the summary judgment application. Further submissions were also filed by CGP dated 13 June 2025 in relation to the applicant's joinder application.
3. On 13 June 2025, the applicant filed submissions in relation to its application to join CGP. On 11 July 2025, the applicant filed further submissions.

1. On 23 June 2025, both the application to join CGP and the summary judgment application came before me for hearing. I decided that conveniently, the application to join CGP should be heard first. The matter was listed for half a day and did not finish in the allocated time. At the conclusion of the part heard hearing, I raised with the applicant's Counsel, Mr Ian Latham (Mr Latham), whether he would like a further opportunity to file a further proposed statement of claim to join CGP given the matters raised by Ms Watson. Mr Latham said he would avail himself of the said opportunity. Accordingly, I made orders that any proposed further amended statement of claim be served by 11 July 2025.

1. The applicant served a draft further amended statement of claim dated 11 July 2025. It was essentially in the same terms as the ASC referred to at [16] of this judgment, except that the applicant added that CGP was aware the applicant performed work for Vinpetrin at the Liverpool Franchise.

1. On 1 July 2025, the applicant caused to have issued by the registry of this Court subpoenas. The applicant no longer presses the subpoena issued to Australian Securities & Investments Commission (ASIC), but presses the remaining four subpoenas, which are described below.

1. The applicant's subpoena for production addressed to the Fair Work Ombudsman (FWO) required production of:

1. a copy of this subpoena.

1. A copy of all documents relating to any investigation involving the Crust Pizza Liverpool Franchise during the period of 1 January 2013 until 1 January 2020.
2. A copy of all documents (including correspondence) involving any investigation of CGP Systems Pty Ltd by the Fair Work Ombudsman including:
   1. Records of interviews; and
   2. Documents produced in response to any Fair Work Ombudsman Compliance Notice.
3. A copy of all reports arising out of the investigation of Crust Pizza Franchises including the following:
   1. Prosecution of Crust Pizza Maroubra Franchisee Sotirios Theochardis pursuant to the FWO Media Release dated 14 August 2015;
   2. Prosecution of Crust Pizza Hobart Franchise owned by QHA Foods Pty Ltd pursuant to the FWO Media Release dated 23 October 2018;
   3. Prosecution of Crust Gourmet Pizza Cheltenham owned by Desire Food and pursuant to the FWO Media Release dated 4 October 2018 and 19 November 2019; and
   4. Prosecution of Crust Pizza Franchise in North Paramatta owned by 1 TWO KA 4 CP Pty Ltd and discontinued on 13 March 2020 pursuant to the FWO media release dated 17 January 2020.

1. The applicant's subpoena for production addressed to CGP required production of:

1. A copy of this subpoena.

1. A copy of the 'Crust Manual' as identified in Clause 5.2 of the Franchise Agreement between CGP Systems Pty Ltd (Crust), Vinpetrin Pty Ltd (Franchisee) and Vinko Petrinovic (Guarantor) ('the Franchise Agreement').
2. A copy of all reports within the meaning of Clause 21 of the Franchise Agreement, including the following:

a. Clause 21.3.1 Monthly Reports;

b. Clause 21.3.3 Annual Reports; and

c. Clause 21.3.4 Other Reports.

held by CGP Systems Pty Ltd, Crust and or the Crust Group as defined at page 52 of the Franchise Agreement, and prepared by Crust Pizza Liverpool during the period of 1 June 2018 and 1 August 2019 ('the relevant period').

1. A copy of all records (including correspondence) relating to CGP Systems Pty Ltd, Crust and or Crust Group as defined at page 52 of the Franchise Agreement, making requests pursuant to Clause 22.1 of the Franchise Agreement to 'investigate' the records of Crust Pizza Liverpool during the relevant period.

2. A copy of all records (including correspondence) held by CGP Systems Pty Ltd, Crust and or Crust Group defined at page 52 of the Franchise Agreement, of policies or directions provided to Crust Pizza Liverpool regarding compliance with 4 relevant legislation (including the Fair Work Act 2009 (Cth)) during the period of 1 January 2013 and 1 January 2020.

3. A copy of all records (including correspondence) provided to CGP Systems Pty Ltd, Crust or Crust Group defined at page 52 of the Franchise Agreement, regarding employees of Crust Pizza Liverpool including:

a. Training arrangements;

b. Employment contracts;

c. Payslips;

d. Rosters;

e. Timesheets.

1. A copy of all records (including correspondence) held by CGP Systems Pty Ltd, Crust or Crust Group as defined at page 52 of the Franchise Agreement, relating to any investigation of Crust Pizza Liverpool for non-compliance with relevant legislation including the Fair Work Act 2009 (Cth) during the period of 1 January 2013 and 1 January 2020.

1. The applicant's subpoena for production addressed to Vinpetrin required production of:

1. a copy of this subpoena.

1. A copy of all records relating to, and requests made by CGP Systems Pty Ltd, Crust and or Crust Group (as defined on page 52 of the Franchise Agreement) and or their representatives, regarding Crust Pizza Liverpool's compliance with the Fair Work Act 2009 (Cth) and the Fast Food Industry Award 2010 during the period from 1 October 2013 until 1 August 2019 (the relevant period).
2. A copy of all policies or directions provided by CGP Systems Pty Ltd, Crust, and or Crust Group, to Crust Pizza Liverpool regarding wage theft compliance during the relevant period.
3. A copy of the 'Crust Manual' as set out in Clause 5.2 of the Franchise Agreement between Vinpetrin Pty Ltd, Mr Vinko Petrinovic and CGP Systems Pty Ltd (the Franchise Agreement).
4. A copy of all records and correspondence relating to the provision of 'Training', within the meaning of Clause 3 of the Franchise Agreement, to employees of Crust Pizza Liverpool by CGP Systems Pty Ltd, Crust and or Crust Group and or their representatives during the relevant period that:

a. Mention the Applicant, Ms Margarita Andromedas; and

1. Are in relation to compliance with the Fair Work Act 2009 (Cth) and the Fast Food Industry Award 2010 and or wage compliance.

2. A copy of all records of reports (including correspondence relating to reports) provided by Crust Pizza Liverpool to CGP Systems Pty Ltd, Crust and or Crust Group and or their representatives, pursuant to Clause 21 of the Franchise Agreement, during the relevant period, including:

Clause 21: Reports and Accounting

During the Term, the Franchisee must give Crust

By the seventh business day of each month, a report:

Of the Gross Revenue (including a break-up e.g., sales of different products) and operating expenses of the Franchised Business; ...

30 days prior to the commencement of each Financial Year, a business plan completed in accordance with Crust's Standards; and

Within 90 days of the end of each Financial Year, a financial statement, including a balance sheet and profit and loss statement for the preceding Financial Year prepared by a chartered or certified practising accountant;

and

Any other reports Crust reasonably requires from time to time.

1. A copy of all records of requests made (including correspondence relating to requests), by CGP Systems Pty Ltd Crust or Crust Group or their representatives, pursuant meaning of Clause 22.1 of the Franchise Agreement, including only:

Clause 22: Inspection and Investigation of Records

22.1 Investigation of Records

The Franchisee grants to Crust or its nominated accountant the right to, at any time during the Term, conduct an investigation of the Records and the Franchisee must:

• Provide a reasonable work area to Crust or its nominated accountant for the purposes of reviewing and investigating Records;

• Answer questions and explain transactions to Crust or its nominated accountant; and

• Allow for those Records the subject of the investigation to be inspected and copied.

1. A copy of all reports or records created and provided to Vinpetrin Pty Ltd or Mr Vinko Petrinovic, by CGP Systems Pty Ltd Crust or Crust Group or their representatives, as a result of a request to investigate records, or any resulting investigation, within the meaning of Clause 22.1 of the Franchise Agreement and set out in paragraph [7].

1. The applicant's subpoena for production addressed to Mr Petrinovic required production of:

1. a copy of this subpoena.

1. A copy of all records relating to, and requests made by CGP Systems Pty Ltd, Crust and or Crust Group (as defined on page 52 of the Franchise Agreement) and or their representatives, regarding Crust Pizza Liverpool's compliance with the Fair Work Act 2009 (Cth) and the Fast Food Industry Award 2010 during the period from 1 October 2013 until 1 August 2019 (the relevant period).
2. A copy of all policies or directions provided by CGP Systems Pty Ltd, Crust, and or Crust Group, to Crust Pizza Liverpool regarding wage theft compliance during the relevant period.
3. A copy of the 'Crust Manual' as set out in Clause 5.2 of the Franchise Agreement between Vinpetrin Pty Ltd, Mr Vinko Petrinovic and CGP Systems Pty Ltd (the Franchise Agreement).
4. A copy of all records and correspondence relating to the provision of 'Training', within the meaning of Clause 3 of the Franchise Agreement, to employees of Crust Pizza Liverpool by CGP Systems Pty Ltd, Crust and or Crust Group and or their representatives during the relevant period that:

a. Mention the Applicant, Ms Margarita Andromedas; and/or

1. Are in relation to compliance with the Fair Work Act 2009 (Cth) and the Fast Food Industry Award 2010 and or wage compliance.

2. A copy of all records of reports (including correspondence relating to reports) provided by Crust Pizza Liverpool to CGP Systems Pty Ltd, Crust and or Crust Group and or their representatives, pursuant to Clause 21 of the Franchise Agreement, during the relevant period, including:

Clause 21: Reports and Accounting

During the Term, the Franchisee must give Crust

By the seventh business day of each month, a report:

Of the Gross Revenue (including a break-up e.g., sales of different products) and operating expenses of the Franchised Business; ...

30 days prior to the commencement of each Financial Year, a business plan completed in accordance with Crust's Standards; and

Within 90 days of the end of each Financial Year, a financial statement, including a balance sheet and profit and loss statement for the preceding Financial Year prepared by a chartered or certified practising accountant;

and

Any other reports Crust reasonably requires from time to time.

1. A copy of all records of requests made (including correspondence relating to requests), by CGP Systems Pty Ltd Crust or Crust Group or their representatives, pursuant meaning of Clause 22.1 of the Franchise Agreement, including only:

Clause 22: Inspection and Investigation of Records

22.1 Investigation of Records

The Franchisee grants to Crust or its nominated accountant the right to, at any time during the Term, conduct an investigation of the Records and the Franchisee must:

• Provide a reasonable work area to Crust or its nominated accountant for the purposes of reviewing and investigating Records;

• Answer questions and explain transactions to Crust or its nominated accountant; and

• Allow for those Records the subject of the investigation to be inspected and copied.

1. A copy of all reports or records created and provided to Vinpetrin Pty Ltd or Mr Vinko Petrinovic, by CGP Systems Pty Ltd Crust or Crust Group or their representatives, as a result of a request to investigate records, or any resulting investigation, within the meaning of Clause 22.1 of the Franchise Agreement and set out in paragraph [7].

Application by RFG and CGP to set aside the subpoenas

1. On 8 July 2025, RFG and CGP filed an application in a proceeding seeking to set aside the said subpoenas referred to at [24] to [27] of this judgment pursuant to r 16.18 of the GFL Rules.

1. The Court has power to set aside subpoenas pursuant to r 16.08 of the GFL Rules. There is no specific provision in the GFL Rules as to who has standing to bring an application to set aside a subpoena. Therefore, by virtue of r 1.06(2) of the GFL Rules, I apply r 24.15 of the Federal Court Rules 2011 (Cth), which expressly provides that a person who has a "sufficient interest" can apply to set aside a subpoena. Further, I note the Court has power to set aside a subpoena as an incident of its implied power to regulate the use of its processes by parties to litigation.
2. The principles applicable to an application to set aside subpoenas are conveniently summarised by the Full Federal Court in Wong v Sklavos [2014] FCAFC 120 (Jacobson, White and Gleeson JJ) at [12] (omitting citations):

... The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings...

A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued.

1. In this judgment, I will use the terminology of "apparent relevance".
2. Further, his Honour Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203, at [20] set out some of the grounds for setting aside a subpoena as follows:

The various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted):

Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:

1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ...

2. where to require the attendance of a witness would be oppressive ...

1. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
2. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
3. where the subpoena has been used for the purpose of obtaining discovery against a third party ...
4. where to require a party to comply with a subpoena to produce documents would be oppressive ...
5. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ...

1. Further, in citing Griebart v Morris [1920] 1 KB 659, Jordan CJ in Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 defined "fishing" at p575 to be:

... for the purpose of "fishing" i.e endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all.

1. This definition was upheld in the recent Federal Court decision in Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414 at [11], where Perram J held that subpoenas are "not to be utilised to find out facts, matters or circumstances which might enable a party to advance a case of which it has no present knowledge". Also, at [11], Perram J held that subpoena documents serve no "legitimate forensic purpose if they seek documents that have no apparent relevance to the issues raised".

1. In the application to set aside the subpoenas, Ms Watson relied on, and I have had regard to, the affidavit of Mr Mardirossian, solicitor for RFG, affirmed on 8 July 2025, written submissions dated 16 July 2025 and reply submissions dated 25 July 2025. Ms Watson also helpfully assisted the Court with her oral submissions. I have also had regard to the further reply submissions in the application to set aside subpoenas dated 31 July 2025, filed pursuant to the leave granted by this Court on 30 July 2025. Mr Latham relied on, and I have had regard to, written submissions dated 21 June 2025 as well as his oral submissions.
2. In relation to the subpoena issued to CGP, I accept that CGP has a sufficient interest to set aside that subpoena. I am also satisfied that CGP, even though it is currently not a party to the proceedings, has sufficient interest to apply to set aside the other three subpoenas issued against FWO, Vinpetrin and Mr Petrinovic, as the documents sought in those subpoenas are documents which may concern CGP and in circumstances where CGP is sought to be joined as a party to these proceedings. I find that RFG also has a sufficient interest, as it is currently still a party to the proceedings.
3. That leaves for consideration whether the applicant has demonstrated that she has a legitimate forensic purpose in seeking production of the documents the subject of the subpoenas and whether the documentation sought have apparent relevance. Consideration also needs to be given to whether the subpoenas are oppressive to the addressees.

Is there a legitimate forensic purpose for the subpoenas?

1. The applicant contended that one of the legitimate forensic purposes for obtaining the documents the subject of the subpoenas was that the documents have an apparent relevance to the issues on the summary judgment application filed by RFG and CGP.
2. I accept that a subpoena may be issued in respect of a interlocutory application pending before the Court and any consideration of whether there is a legitimate forensic purpose and apparent relevance is considered through the prism of the issues that may arise in the interlocutory application. This was made clear in Tamawood Limited v Habitare Developments Pty Ltd [2009] FCA 364 (Tamawood), where Wigney J said at [16]:

It is common ground that a subpoena may be issued in respect of an interlocutory application, and indeed this is made clear by such cases as Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 (subpoena issued pursuant to a security for costs application by the respondent to produce standard financial documents of a corporate applicant) and Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 (subpoena issued relating to a notice of motion pursuant to s 33N(1) Federal Court of Australia Act 1976 (Cth)).

1. In Tamawood, his Honour on the facts of that case, granted leave for a subpoena to be issued as he was satisfied that information in the documents would assist the applicant in relation to the notice of motion filed, both with respect to seeking leave to join a party and in seeking leave to amend.
2. Further, Wigney J in Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 (Gloucester) was satisfied that the applicants had discharged their onus of establishing a legitimate forensic purpose for the subpoena because it was "on the cards" that the documents required to be produced in answer to the subpoena may bear on the issues to be determined in the context of the summary judgment application filed. In that case, the applicants sought leave to issue a subpoena to a third party, namely the Commonwealth Bank of Australia, to produce documents. The applicants, Gloucester and CCMF, contended that the legitimate forensic purpose of the subpoena was for the purpose of resisting an application for summary judgment that had been filed by the respondents, Fitch. His Honour in Gloucester noted at [5]:

A critical element in Gloucester's and CCMF's case against Fitch is that, when they agreed to invest in the Palladin AAA SCDOs (in Gloucester's case) and the Palladin AASCDOs (in CCMF's case), they substantially relied on the ratings assigned by Fitch. It is that element of the case against Fitch which is central to Fitch's summary judgment application.

(Emphasis added)

The evidence filed by Fitch in support of its summary judgment application indicates that Fitch contends that there is no reasonable basis for the contention that Gloucester and CCMF relied on Fitch's AAA and AA ratings because they agreed to purchase the Palladin AAA and AA SCDOs prior to the date that the ratings were assigned. It would also appear that Fitch contends that there is a deficiency in paragraphs 87-92 of the pleading because they do not plead or particularise how the conduct of the Commonwealth Bank "resulted from" any conduct by Fitch.

(Emphasis added)

1. At [25], his Honour noted that "the question whether any documents likely to be produced in answer to the ... subpoena might 'throw light' on the issues that might arise on the summary judgment application is not easy to resolve." At [28], his Honour continued:

The issue is complicated because the parties appear to have different interpretations of the current pleaded case in relation to reliance. That is apparent from both the correspondence between the parties' solicitors concerning the pleading and the submissions that were advanced in relation to the notice to produce and subpoena. Whether that disjunct is or is not a result of ambiguities or other deficiencies in the pleading is an issue that can only be determined at the hearing of the summary judgment application.

Despite this complication, or perhaps because of it, the better view is that Gloucester and CCMF have discharged their onus of establishing a legitimate forensic purpose for the notice and subpoena. It is "on the cards" that the documents required to be produced in answer to the notice and subpoena may bear on the issues to be determined in the context of Fitch's summary judgment application, or that they will or may have the capacity to "throw light on" whether Gloucester and CCMF have a valid claim.

1. CGP in its further written submissions in reply dated 31 July 2025, contended that Gloucester was not a case that concerned the manner in which claims have been pleaded, and was not authority for the proposition that a subpoena could be issued to cure defects in the pleadings, where the defects were that the applicant had failed to identify any material facts in relation to conclusory allegations, and the purpose of issuing the subpoena was to discover whether the applicant could identify some form of case against the proposed respondent to sustain the conclusory allegations. I accept that, in Gloucester, the facts did not involve a subpoena being issued to address defects in the pleadings. However, in this case the applicant submitted that one of the legitimate forensic purposes of issuing the subpoenas was so the applicant could resist the summary judgment application. That is not to say, there may be other purposes or uses that can be made of the documents by the applicant, but that is not the relevant enquiry for the Court. I must determine if the subpoenas issued serve a legitimate forensic purpose relevant to the issues on the summary judgment application. To determine that question, it is useful to outline the relevant legal principles that apply to a summary judgment application.

Relevant legal principles applicable to summary judgment applications

1. The Court's power to summarily dismiss is exercised at a preliminary stage in proceedings and before the Court has the benefit of hearing full argument and evidence. Therefore, the power to summarily dismiss ought to be exercised with caution. In Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer), when considering the Federal Court's power for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which is in similar terms to s 143(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), French CJ and Gummow J noted:

[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. ...

[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a 'fanciful' prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. ...

1. French CJ and Gummow J at [22] also said s 31A of the FCA Act:

... will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is an unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. ... The application of s 31A is not, in terms, limited to those categories.

(Emphasis added)

1. Ms Watson argued for CGP, that for the purposes of the summary judgment application, the Court need only consider the pleaded case as set out in the further amended statement of claim. I reject that submission because as Finkelstein J said in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6]:

In contrast, a s 31A [summary judgment] application not only permits, but requires, a consideration of matters outside the pleadings: ...The application is, after all, a trial albeit a summary trial. In White Industries Aust Ltd v Federal Cmnr of Taxation (2007) 160 FCR 298; 240 ALR 792; 95 ALD 30; [2007] FCA 511 at [50], Lindgren J said that s 31A "is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form". That is to say, the "no reasonable prospect of success" standard is designed to test the adequacy of the evidence in support of the allegations, not just the allegations themselves. At the same time, it is important to understand that the court in deciding a motion for summary judgment does not, in testing that evidence, find any facts; rather, the court determines, as a matter of law, whether there are any facts that need to be found such that a trial is required: ...

1. Further, it is clear from the power to order summary judgement set out in s 143 of the FCFCOA Act and r 13.13 of the GFL Rules, that this Court may give judgment to summarily dismiss if the Court "is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding" (emphasis added). Thus, the enquiry on the summary judgment application is not simply whether the pleadings failed to disclose a reasonable cause of action, but also whether any deficiencies in the pleadings is incurable, as was accepted by the High Court in Spencer (see [47] of this judgment).
2. Thus, in considering whether there is a legitimate forensic purpose for the subpoenas, I need to determine whether the documents required to be produced in answer to the subpoenas may bear on the issues to be determined in the context of the summary judgment application. Ms Watson agreed that an assumption needed to be made that the pleading would be in the form of the proposed further statement of claim.

Issues that may arise on the summary judgment application

1. One issue which may arise on the summary judgment application, is whether the pleading against CGP that it "could reasonably be expected to have known that the contravention by the franchisee [Vinpetrin] would occur" or "could reasonably be expected to have known that a contravention by the franchisee entity of the same or a similar character was likely to occur", (knowledge requirement), as pleaded at [117] of the further amended statement of claim, discloses a reasonable cause of action, and if not, whether any deficiency in the pleading is incurable.

What may be material facts for the knowledge requirement

1. The knowledge requirement on the part of a "responsible franchisor entity" for the purposes of s 558B(1)(d)(i) and (ii) of the FW Act has not been the subject of any contested decisions to date.
2. In Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576, Bromwich J was determining civil penalties for admitted breaches of s 558B(1) of the FW Act by the respondent as "responsible franchisor". Although in that case the franchisor admitted it was a responsible franchisor for the purpose of s 558B, at [28] his Honour did consider the evidence relied upon by the FWO to establish the knowledge requirement in s 558B(1), which was set out in detail in the Statement of Agreed Facts. The key facts identified at paragraph 28(a) to 28(j) can be summarised as follows:

(a) The franchisor had admitted to contraventions of the same or a similar kind previously, and on that basis had entered into an enforceable undertaking which included undertaking to ensure future compliance at all times and in all respects with the FW Act, Fair Work Regulations 2009 (Cth) and Retail Award.

(b) Six audits were conducted pursuant to the enforceable undertaking, each identifying continuing breaches of the FW Act and Retail Award.

(c) The franchise mode was made on these non-compliant business operations.

(d) Based on the enforceable undertaking and audits, it could be reasonably be expected to have known that the operations of some stores were not compliant.

(e) The individuals operating the franchisees spoke limited English, had limited or no experience in operating retail business in Australia or knowledge of relevant laws, and did not obtain business or accounting advice prior to entering the agreements.

(f) Site visits were conducted and data was monitored, or otherwise could be inspected and audited.

(g) No information or training was provided to franchisees about their obligations in relation to their employees following the earlier contraventions.

(h) Despite the franchisor being aware of the Fair Work Ombudsman's investigation to the franchisees' compliance, the contraventions continued.

(i) The franchisor took only limited, insufficient steps to address non-compliance by franchisees.

(j) The franchisor admitted that it has constructive knowledge that the contraventions by its franchisees would occur.

1. The explanatory memorandum of the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 provides some useful guidance as to what may be sufficient for the purpose of the knowledge requirement at [57] to [62] as follows:
   1. New paragraph 558B(1)(d) enables the responsible franchisor entity (including a subfranchisor) to be held liable for prescribed contraventions if either:
      • it or one of its 'officers' knew, or could reasonably be expected to have known, the contravention by the franchisee entity would occur; or
      • at the time of the contravention, it or one of its 'officers' knew, or could reasonably be expected to have known, that a contravention by the franchisee entity of the same or a similar character was likely to occur.
   2. These provisions mean that the responsible franchisor entity does not need to have actual knowledge that the franchisee entity's contravention would occur. It is enough that the responsible franchisor entity could reasonably be expected to have known the contravention would occur, or that a contravention of the same or a similar character was likely to occur. Mere suspicion is not enough - there must objectively be reasonable grounds to hold the belief.
   3. For example, a responsible franchisor entity may be aware of a series of complaints about alleged underpayments, or may be aware of a system of non-compliance that is likely to result in the franchisee entity's employees being underpaid or otherwise deprived of their entitlements under the Fair Work Act. There is no need to prove the responsible franchisor entity knew exactly who was being underpaid, and on what basis.
   4. Determining whether a responsible franchisor entity could reasonably be expected to have known of a contravention (or contraventions of the same or a similar character) is an objective test. It also takes into account the responsible franchisor entity's knowledge, experience and acumen.
   5. The test looks to what the responsible franchisor entity knew, or could reasonably be expected to have known, about the general likelihood of contraventions affecting employee entitlements within its franchise network at the time the actual contravention occurred. There is no need to prove that the head office of a potentially large franchise network knew the exact details of contraventions being committed by their franchisees. It requires a general assessment of what was known, or could reasonably be expected to have been known, about levels of compliance with the relevant requirements within the franchise network.

Contraventions of the same or a similar character

1. The phrase 'contraventions of the same or a similar character' is not defined, so has it ordinary meaning. A contravention is generally 'of the same or a similar character' if it is legally the same or similar in character (e.g. breaches of the terms of an award or enterprise agreement). Additionally there must be some factual or temporal nexus or connection between the contraventions in order to establish a series (e.g. award contraventions form part of a series of contraventions relating to the underpayment of employees at a workplace).

(Emphasis added)

1. Therefore (without determining the issue), it may be sufficient for the knowledge requirement, for the applicant to establish that the responsible franchisor was aware of a series of complaints about alleged underpayment contraventions of the FW Act or breaches of the terms of Awards or specific non-monetary contraventions of the FW Act at the time the actual contravention occurred, and the responsible franchisor, given the control it had over the business of the franchise in question by operation of the franchise agreement, had the means of ascertaining whether the franchisee in question was in contravention of the FW Act.
2. I am satisfied that the applicant is seeking some documents, subject to amendment of the categories which I deal with later in this judgment, which go to the knowledge requirement. To the extent that there will be an issue on the summary judgment application as to whether the applicant has no reasonable prospects of success in relation to the allegations against CGP that it is liable for the contraventions of the franchisee pursuant to s 558B(1)(d)(i) or (ii) of the FW Act, I am satisfied that the applicant has discharged her onus and demonstrated a legitimate forensic purpose for seeking some of the category of documents. This is because the documents may disclose documents relevant to the knowledge requirement and may be a reason that the Court refuses to order summary judgment.
3. I do not accept, subject to amendment of the categories as set out at [59] to [61] of this judgment, Ms Watson's contention that the documents sought in the subpoenas are for the purpose of "fishing", in the sense that it is to utilise the subpoena to find evidence which might enable the applicant to advance a case of which it has no present knowledge. The applicant has purported to plead a case against CGP based on s 558B of the FW Act. Rather, I am satisfied, as said, it is for the purposes of obtaining evidence for the purposes of resisting the summary judgment application and to support an ultimate submission that the applicant has reasonable prospects of successfully prosecuting the s 558B claim against CGP. For current purposes I do not need to address the claim pleaded in respect of s 550 of the FW Act.

1. For the reasons I am satisfied that there is a legitimate forensic purpose, I am also satisfied that some of the categories of documents (subject to the amendments set out at [59] to [61] of this judgment) have apparent relevance to the issues in the summary judgment, being that the documents may disclose documents relevant to the knowledge requirement and may be a reason that the Court refuses to order summary judgment. It is apparent from category 4 of the subpoena to the FWO that media reports exist detailing that the FWO prosecuted four franchisees of the franchise. It may be that the documents sought from the FWO disclose that CGP was made aware of a series of complaints in its franchise network, as to alleged underpayments or may be aware of a system of non-compliance that is likely to result in the Liverpool Franchise employees being underpaid or otherwise deprived of their entitlements under the FW Act.

1. Ms Watson contended that categories 2 to 4 of the FWO subpoena were oppressive as currently drafted. I accept that the categories are not well drafted. However, given my view as to the legitimate forensic purpose of the documents sought, I grant leave for the subpoena to the FWO to be issued by the Registry of this Court, seeking only the following categories of documents:
   1. A copy of this amended subpoena.
   2. For the period 1 October 2013 to 1 August 2019, documents recording investigation, enforcement action and monitoring as to compliance, undertaken by the Fair Work Ombudsman as to alleged underpayment claims under the Fast Food Industry Award 2010 (Award), alleged contraventions of section 45 of the Fair Work Act 2009 (Cth) (FW Act) as to underpayment claims and alleged non-monetary contraventions of the FW Act in failing to issue payslips, keep employee records and display the Award and National Employment Standards by:
      1. Sotirios Theochardis as to the Crust Pizza Maroubra Franchisee;
      2. QHA Foods Pty Ltd as to the Crust Pizza Hobart Franchise;
      3. Desire Food as to the Crust Gourmet Pizza Cheltenham;
      4. 1 TWO KA 4 CP Pty Ltd as to the Crust Pizza Franchise in North Paramatta; and
      5. CGP Systems Pty Ltd as to the Crust Pizza Liverpool Franchise.

1. Ms Watson contended that categories 3 to 7 of the CGP subpoena were oppressive as currently drafted. Ms Watson accepted that category 2 was narrow but submitted that it was not relevant. I accept that categories 3 to 7 are categories which are not well drafted and oppressive in that, for example, they refer not only to CGP but to "Crust and or the Crust Group" and refer to "non-compliance with relevant legislation" without identifying the legislation. However, given my view as to the legitimate forensic purpose of the documents sought, I grant leave for the subpoena to CGP to be issued by the Registry of this Court, seeking only the following categories of documents:
   1. A copy of this amended subpoena.
   2. A copy of the 'Manual' as identified in Clause 5.2 of the Franchise Agreement dated 22 October 2013 between CGP Systems Pty Ltd, Vinpetrin Pty Ltd and Vinko Petrinovic and defined in Clause 39.1 of the said Franchise Agreement.
   3. For the period 1 October 2013 to 1 August 2019, documents recording investigation, enforcement action and monitoring as to compliance, undertaken by the Fair Work Ombudsman as to alleged underpayment claims under the Fast Food Industry Award 2010 (Award), alleged contraventions of section 45 of the Fair Work Act 2009 (Cth) (FW Act) as to underpayment claims and alleged non-monetary contraventions of the FW Act in failing to issue payslips, keep employee records and display the Award and National Employment Standards (NES) within its Crust Pizza franchise network.
   4. For the period 1 October 2013 to 1 August 2019, documents recording any directions provided by CGP Systems Pty Ltd to Vinpetrin Pty Ltd and/or officers of Vinpetrin Pty Ltd as to compliance and/or non-compliance with payment obligations under the Award and the FW Act, and/or issuing payslips, keeping employee records and displaying the Award and the NES.

1. The subpoenas to Vinpetrin and Mr Petrinovic are in the same terms. Ms Watson contended that categories 2, 3, 5 to 8 of the Vinpetrin and Mr Petrinovic subpoenas were oppressive as currently drafted. Ms Watson accepted that category 4 was narrow but submitted that it was not relevant. I accept that categories 2, 3, 5 to 8 are categories which are not well drafted and oppressive in that, for example, they refer not only to CGP but to "Crust and or the Crust Group" and refer to use terminology such as "relating to". However, given my view as to the legitimate forensic purpose of the documents sought, I grant leave for the subpoenas to Vinpetrin and Mr Petrinovic to be issued by the Registry of this Court, seeking only the following categories of documents:
   1. A copy of this amended subpoena.
   2. A copy of the 'Manual' as identified in Clause 5.2 of the Franchise Agreement dated 22 October 2013 between CGP Systems Pty Ltd, Vinpetrin Pty Ltd and Vinko Petrinovic and defined in Clause 39.1 of the said Franchise Agreement.
   3. For the period 1 October 2013 to 1 August 2019, documents recording investigation, enforcement action and monitoring as to compliance, undertaken by the Fair Work Ombudsman as to alleged underpayment claims under the Fast Food Industry Award 2010 (Award), alleged contraventions of section 45 of the Fair Work Act 2009 (Cth) (FW Act) as to underpayment claims and alleged non-monetary contraventions of the FW Act in failing to issue payslips, keep employee records and display the Award and National Employment Standards (NES) by Vinpetrin Pty Ltd at the Crust Pizza Liverpool Franchise.
   4. For the period 1 October 2013 to 1 August 2019, documents recording any directions provided by CGP Systems Pty Ltd to Vinpetrin Pty Ltd and/or officers of Vinpetrin Pty Ltd as to compliance and/or non-compliance with payment obligations under the Award and the FW Act, and/or issuing payslips, keeping employee records and displaying the Award and the NES.

1. I observe that the applicant has failed to be precise in the drafting of the categories of the documents sought. However, in circumstances where the Court is satisfied as to a legitimate forensic purpose and that documentation have an apparent relevance, then it is in the interests of justice for the Court to grant leave for the subpoenas to be issued in an amended form. Accordingly, I grant leave to the applicant to have issued the subpoenas to the FWO, CGP, Vinpetrin and Mr Petrinovic calling for documents identified at [59] to [61] of this judgment.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.