Kaur v Singh [2025] FCA 1643

1. The applicant claims that the employer of her late husband failed to effect superannuation contributions on his behalf with the result that she lost the opportunity to receive the proceeds of a death benefit. The applicant alleges that in failing to effect the superannuation contributions the employer contravened the terms of a modern award.
2. The employer company is deregistered and is not a party to this proceeding. The first and second respondents are alleged at different times to have been directors of the employer and to be liable as accessories to the employer's contraventions pursuant to s 550 of the Fair Work Act 2009 (Cth). The second respondent is now a bankrupt.
3. The applicant seeks several interlocutory orders. The orders sought include leave to amend the statement of claim and originating application to allow the applicant to change the capacity in which she sues, the joinder of a third respondent to the proceeding together with corresponding leave to amend the originating application and statement of claim to incorporate claims against the third respondent, and leave to proceed against the second respondent who, as I mentioned, is a bankrupt.
4. I will address each of the orders sought by the applicant in turn.

Issue of standing under the Fair Work Act 2009 (Cth)

1. The applicant's interlocutory application was originally listed for hearing on 4 December 2025. At that hearing, I raised with counsel the terms of s 540(1) of the Fair Work Act, which limits those who may apply for orders in relation to a contravention of a civil remedy provision of the Act. Given that the applicant is the wife of the deceased employee who died intestate, I raised with counsel the question whether the applicant, as the deceased's wife, had standing to apply for orders that the respondents had contravened the Fair Work Act. Section 540 provides, relevantly, that "an employee" or an "employee organisation" may apply for an order in relation to a contravention of a civil remedy provision. I adjourned the hearing of the interlocutory application until today to provide the parties with time to consider the question of standing and to prepare submissions for the Court.
2. On 17 December 2025, the solicitor for the applicant filed an affidavit which annexed Letters of Administration of the Supreme Court of Victoria in its Probate Jurisdiction dated 19 May 2025 which were granted to the applicant. The applicant submits that she is entitled to pursue this proceeding as the administrator of the deceased employee's estate and that the construction of s 540(1) of the Fair Work Act is affected by s 29(1) of the Administration and Probate Act 1958 (Vic) which is picked up by s 79 of the Judiciary Act 1903 (Cth). As a result, the applicant submits that the relevant cause of action of the deceased employee for contravention of the modern award vests in her, and that she therefore has standing to pursue the proceeding, including to seek compensation orders in her favour. For this submission, the applicant relies on a decision of the Court of Appeal of the Supreme Court of Western Australia in Chappell v Goldsplan [2021] WASCA 205; 58 WAR 503 (Chappell).
3. In Chappell, the majority (Buss P and Mitchell JA) held that statutory causes of action for misleading and deceptive conduct were conferred solely on the "person" who had suffered the loss or damage, unless the cause of action was vested in their estate by another law, and that s 4(1) of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) was picked up by s 79 of the Judiciary Act and was effective so that the statutory causes of action that vested in a deceased person prior to his death survived for the benefit of his estate. To support its conclusion that the statutory causes of action were conferred only on the person who suffered the loss, the majority applied a decision of the Full Court of this Court in Pritchard v Racecage Pty Ltd [1997] FCA 27; 72 FCR 203 (Pritchard) concerning causes of action arising under the Trade Practices Act 1974 (Cth). In Pritchard, Branson J (with whom Spender J and Olney J agreed) went further and held that the Law Reform (Miscellaneous Provisions) Act 1956 (NT), which provided for the survival of causes of action, had no relevance to the construction of the relevant provisions of the Trade Practices Act. In Chappell, the majority distinguished Pritchard on the basis that the causes of action had vested in the deceased prior to death.
4. In dissenting from the majority in Chappell, Pritchard JA declined to follow Pritchard, stating at [298] that the decision "is plainly wrong and should not be followed". The applicant also drew the Court's attention to further decisions of this Court in Cochrane v Bupa Aged Care Australia Pty Ltd [2025] FCA 1560 (Button J) and Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311 (Snaden J), which counsel submitted support the applicant's capacity to pursue this proceeding as administrator of the deceased's estate.
5. Further, the applicant submitted that the word "employee" as used in s 540(1) does not require that an applicant be in an ongoing employment relationship with the employer at the time of making the application for contraventions of the Fair Work Act, but rather that the employment relationship existed at the time of the alleged contravention. I consider that this submission is correct, because a former employee has standing to bring an application for an alleged contravention of the Act: for example, see Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCAFC 132; 305 FCR 554 at [105] in relation to s 539 of the Fair Work Act (Wheelahan J).
6. I am satisfied that the applicant has demonstrated a sufficient foundation upon which to argue that she has standing in the proceeding. That foundation includes that Pritchard concerned different legislation with different objects and purposes, and the fact that another intermediate appellate court distinguished it in relation to whether state laws concerning the transmission of causes of action to deceased estates are picked up and applied by s 79 of the Judiciary Act to causes of action which vested in the deceased before death. I consider that the question of standing is a triable issue to which full argument should be addressed and may be a candidate for separate trial at which all parties can be heard.
7. I will make an order giving leave to the applicant to amend her statement of claim and originating application to allege that she sues in the capacity of administrator of the relevant estate and in her own capacity.

1. The applicant alleges that TBC Account Services Pty Ltd (ACN 606 363 553) (TBC), as the employer's accountant, was an accessory to the employer's contravention of the award obligation to make superannuation contributions on behalf of the deceased. On the face of the material before the Court the applicant has an arguable claim against TBC, including as to standing. I will therefore give leave to the applicant to add TBC as a respondent to the proceeding.

Leave to proceed against the second respondent in bankruptcy

1. As I have mentioned, the employer company is now deregistered and is not a party to this proceeding. The second respondent is alleged to have been a director of the employer at the time of the alleged contraventions of the modern award and is alleged to have been an accessory to the contraventions.
2. The applicant alleges that on 28 April 2025, and after this proceeding had commenced, the second respondent transferred her estate in a parcel of real property to the first respondent and then filed a debtor's petition that resulted in her bankruptcy. The applicant alleges that the transfer was voluntary and intended to defraud creditors and seeks orders under s 172 of the Property Law Act 1958 (Vic).
3. Paragraph 58(3)(b) of the Bankruptcy Act 1966 (Cth) has the effect that, except with the leave of the Court, after a debtor has become bankrupt it is not competent for a creditor to commence legal proceedings in respect of a provable debt. There must be some doubt whether the applicant's claims against the second respondent for penalties and for compensation would be debts provable in the bankruptcy: see ss 82(1), (2) and (3) of the Bankruptcy Act, and Mathers v Commonwealth [2004] FCA 217; 134 FCR 135 at [25]-[29] (Heerey J). Against the contingency that the applicant's claims are provable debts, the applicant seeks leave to continue the proceeding against the second respondent.
4. On 3 December 2025, my Chambers received an email from the solicitor for the applicant forwarding correspondence from the office of the trustee of the second respondent's bankrupt estate in which it was stated that the estate receives no benefit and requested that the second respondent be withdrawn from the proceeding or that there be no requirement that the second respondent participate further in the proceeding. At the hearing on 4 December 2025, an employee of the trustee, Mr Pattison, attended the Court and identified himself and stated that the trustee may consider bringing proceedings in relation to the disposition of property. There is no evidence at this point that such proceedings have been brought.
5. I consider that it is appropriate to give leave to the applicant to proceed against the second respondent against the contingency that the claims against the second respondent may be provable debts. This is because it would not be in the interests of justice to fragment the proceeding and to separate a claim for accessorial liability against the second respondent by requiring that it be pursued through a proof of debt process and have all the other issues determined in parallel by the Court. All the applicant's claims should be considered together because they relate to the same substratum of facts and relate to the same claims of contraventions and circumstances, including the alleged voidable disposition of property from the second respondent to the first respondent. Accordingly, the Court will grant leave to the applicant to continue the proceeding against the second respondent_._

I certify that the preceding 17 (seventeen) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.