Singh v Fair Work Ombudsman

LEE J: 1 This is an application for leave to appeal, brought by Mr and Mrs Singh, against a procedural order made by a judge of the Federal Circuit Court. The Fair Work Ombudsman (FWO) seeks pecuniary penalty orders against Mr and Mrs Singh pursuant to s 546 of the Fair Work Act 2009 (Cth). The matter is to be heard on 8 August 2019. 2 The matter came before the primary judge on 14 March 2019 for the purpose, among other things, of making interlocutory orders as to the preparation of evidence for the hearing. The primary judge indicated that evidence in chief in the case was to proceed by way of affidavit. 3 Mr and Mrs Singh resisted procedural orders being made which affected them on the basis that they wish to rely on the privilege against exposure to civil penalty until the FWO's case is concluded. Notwithstanding this, the primary judge made orders for the filing of any affidavit material, amended defences and submissions prior to the hearing "subject to any claim based on a privilege against exposure to civil penalty". There is no issue raised on this application for leave to appeal as to the applicability of the privilege against exposure to civil penalty given the final relief sought by the FWO. 4 Orders were also made by the primary judge precluding Mr and Mrs Singh from filing any affidavit evidence on penalty or contravention not served in accordance with his Honour's orders without leave, and limiting oral submissions to half an hour, again without leave. The reason why Mr and Mrs Singh seek leave to appeal, is that they claim these orders abrogate the privilege against exposure to a civil penalty. 5 The application for leave to appeal was dealt with on the papers. The FWO consents to leave being granted. Despite this, I do not consider that leave to appeal should be granted. This is because the bringing of any appeal against the existing orders is premature. 6 The first (albeit apparently unlikely) way that any appeal will be premature, is if Mr and Mrs Singh now waive their entitlement to rely on the privilege and provide affidavits, a substantive amended defence and submissions in accordance with his Honour's orders. 7 More relevantly, assuming as I must that the privilege claim is maintained by Mr and Mrs Singh, there is still an issue of prematurity. In this likely scenario, Mr and Mrs Singh will choose (or, to use his Honour's word, "elect") not to file affidavit evidence, a substantive amended defence nor submissions. At the close of the FWO's case in chief at the hearing, an application can then be made by Mr and Mrs Singh to the primary judge for leave for such documents which are then proposed to be relied upon to be filed. Given the existence of the privilege (and notwithstanding his Honour's orders), it could not be suggested that Mr and Mrs Singh were required to have filed and served these materials in a civil penalty case any earlier: see Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32 at 37-38 [13]. 8 Although there are parts of His Honour's reasons which might indicate that his Honour has real concern about the disruption and delay that would flow from bifurcating the hearing of evidence on different days, for reasons I will explain, it may be necessary for the Court to do so in the event that the FWO seeks an adjournment to meet any material served by Mr and Mrs Singh at the commencement of their case at the hearing. 9 It is important not to elide two matters. One is "shutting out" Mr and Mrs Singh from relying on evidence, a substantive amended defence and submissions served at the conclusion of the case in chief of the FWO, if they do not, in advance of the hearing, "elect" to abandon their claim for privilege (which would be an error). The other is making a determination about the mode by which that evidence is to be adduced by Mr and Mrs Singh; or the mode by which his Honour is to receive submissions. What the primary judge said at [10] relating to evidence was: "[i]t will be a matter for the Court at that time, depending on the circumstances, to determine whether the Court would grant such leave and whether the Court would require the evidence to be adduced forthwith in oral form or by way of affidavit". 10 Any appeal is an appeal against orders and not reasons. The orders do not prevent the usual course, well known in civil penalty proceedings, taking place. It may be that leave is granted to rely on affidavits or evidence is adduced orally: that is a matter for the primary judge. His Honour may receive submissions in writing, or orally. Mr and Mrs Singh will no doubt be prepared either way. The present difficulty is that the application for leave to appeal seems to be premised on the notion that Mr and Mrs Singh will be shut out from relying upon evidence or other material not served in advance of the hearing. The orders made by his Honour do not necessitate this eventuality, and if such an event was to occur then, of course, Mr and Mrs Singh would have appeal rights arising at that time. But these matters should all be canvassed first before the primary judge to deal with at the hearing when his Honour will have the benefit of full argument on the matter and be assisted in ensuring that there is no denial of the ability of Mr and Mrs Singh to meet the case of the FWO without undermining their entitlement to claim privilege until the FWO case in chief is closed. 11 His Honour is no doubt correct to focus closely on ensuring the efficient and cost effective conduct of this proceeding. It may be that there are no practical difficulties at the hearing in any event, because the FWO may be in a position to cross-examine immediately and engage with any legal arguments advanced by Mr and Mrs Singh without delay. If an adjournment is sought by the FWO to meet any case of Mr and Mrs Singh, then no doubt the primary judge will proceed to determine that application so as to do justice between both parties (recognising that this is not an uncommon eventuality in contested civil penalty proceedings when a respondent runs affirmative defences or goes into evidence). 12 It is premature for this Court to interfere with the conduct of the matter at the present time. Accordingly the application for leave to appeal is dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.