Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2012] FMCA 712

On 27 August 2010 the Fair Work Ombudsman commenced proceedings against the respondents concerning the alleged underpayment of employees in a call centre operated by the respondents. On 28 November 2011 I gave judgment in favour of the Fair Work Ombudsman on the issue of liability[1]. The respondents unsuccessfully sought leave to appeal to the Federal Court from that judgment[2].
On 16 December 2011 I gave orders to prepare for a hearing on the issue of penalty. Those orders were subsequently amended. The matter is currently listed for a hearing on penalty on 6 September 2012.
In July 2012, it came to the Court's attention that the respondents were interested in reopening their case in relation to liability. On 1 August 2012 I directed that any application to reopen the case on liability be in the form of an Application in a Case, to be filed and served in accordance with the Federal Magistrates Court Rules 2001 (Cth). Such an Application in a Case was filed on 6 August 2012. It is supported by the affidavits of Judith Madge Potter made on 26 May 2012 (filed on 6 August 2012) and the affidavit of John Michael Parnell made on 27 June 2012 (filed on 6 August 2012). Mrs Potter filed a further affidavit on 20 August 2012 in the evident expectation that it would be taken into account. Although I gave no leave for further evidence to be filed, I have taken that additional affidavit into account.
The Application in a Case came before me for hearing on 8 August 2012. Mrs Potter appeared on behalf of the respondents and sought an adjournment. Having regard to the forthcoming hearing on penalty, I obtained the parties' agreement to a determination of the Application in a Case without a further oral hearing. I invited written submissions from the parties in relation to an Application in a Case with a view to providing judgment on it on or before 3 September 2012.
The parties both made written submissions[3].

The principles in relation to reopening a case were considered by the Federal Court in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No.3)[4]. In that case Logan J said at [5]-[10]:
- That there is a jurisdiction to permit a party to reopen its case, so as to adduce further evidence, even after a statement has been made to the court that the party's case in evidence has closed is not in doubt: see, for example, Smith v The New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 266 to 267.
- A useful starting point, in the context of an application such as this, is a passage which appears in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478:
- The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not [to] call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.
- An example of a case where leave to reopen was granted to a party, notwithstanding a deliberate tactical decision on the part of that party's representatives, initially, not to call the witness concerned, is to be found in an interlocutory judgment delivered by me in Olivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 at paras 19 - 27 (which is presently the subject of a reserved judgment in respect of the substantive issues).
- In the course of my reasons for judgment in that interlocutory application, I gained assistance from two judgments of the South Australian Supreme Court. I shall not refer in detail to those judgments, as they are reproduced in the interlocutory judgment which I delivered in Olivaylle_. Those particular cases demonstrate, though, the extent of the discretion and the singularity of circumstance which may give rise to an exercise of a discretion to reopen, even in circumstances where a judgment has been delivered but an order has not yet been perfected._
- In Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 at para 24, Kenny J, with respect, offers a very helpful summary of circumstances in which a court will permit further evidence to be given. Her Honour lists four categories in which she opines that, broadly speaking, a court may grant leave to reopen. Her Honour is careful to note that these classes or categories are not exhaustive and overlap. The four classes that her Honour identifies by reference to authority are:
- (a) fresh evidence;
- (b) inadvertent error;
- (c) mistaken apprehension of the facts; and
- (d) mistaken apprehension of the law.
- As her Honour notes in para 24:
- In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.
In the present case the respondents seek to reopen their case on liability on the basis of new evidence. At the earlier liability hearing the respondents resisted a finding against them on liability on the basis that there was no applicable award, in part because the respondents had entered into Australian Workplace Agreements (AWAs) with their employees. I dealt with that assertion at [38]-[46] of my earlier judgment. I found at [46] that no AWAs in respect of the employees of the respondents were lodged in accordance with the then applicable legislation.
The additional evidence said to warrant a reopening of the case on liability is annexure A to the two affidavits of Mrs Potter. That is a printout of an electronic record of an account being created by or for the first respondent, in its former name, with the Office of the Employment Advocate, apparently on or before 7 February 2007. Mr Parnell deposes that a unique indexing number for the account could be retrieved which might hypothetically produce other records relating to the company's account.
In my view, the additional evidence does not support a reopening of the case on liability. First, it is unsurprising that the company had an account with the Office of the Employment Advocate. The respondents gave evidence of dealing with that Office over some time. It may be that Mrs Potter attempted to lodge one or more AWAs in 2007. There is, however, nothing in the evidence now available to cast doubt on my finding in my earlier judgment that AWAs were not lodged for the employees of the respondents in accordance with the then applicable statutory requirements. Even if I were wrong in that, as is pointed out in the Fair Work Ombudsman's submissions, it would only cast doubt on the status of three employees.
Further, the pending and proximate hearing on penalty would be significantly delayed if the case on liability were to be re-opened. It would be inappropriate to delay the penalty hearing in favour of what may be no more than a fishing expedition. To the extent that the additional evidence has any relevance, it can be taken into account in respect of penalty, for example in support of the proposition that Mrs Potter had a genuine (though mistaken) belief that her employees were covered by AWAs.
I conclude that the interests of justice would not be served by permitting the case on liability to be re-opened. It follows that the Application in a Case should be dismissed, with costs to be reserved. I will so order.

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Judgment (9 paragraphs)

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