Federal Court of Australia

Elvin v Fair Work Ombudsman [2026] FCAFC 92

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed, in part.

2.    The declaration made by the primary Judge on 10 May 2024 that:

The second respondent was knowingly concerned and therefore involved in each of the contraventions by the first respondent set out at paras 1(a) to 1(j) and 1(m) to 1(q) above.

is set aside and in substitution thereof it is declared that:

The second respondent was knowingly concerned and therefore involved in each of the contraventions by the first respondent set out at paras 1(a) to 1(d), 1(f) to 1(h), and 1(j) above.

3.    The cross-appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court are an Amended Notice of Appeal lodged by Mr Colin Elvin on 5 July 2024, and an Amended Notice of Cross Appeal filed by the Fair Work Ombudsman (FWO) on 19 July 2024.

2    Mr Elvin appeals two judgments of the Federal Court, both delivered by the same Judge (primary Judge), and in both of which Mr Elvin was named as the second respondent. The first – Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 (Liability Judgment) – was delivered on 14 October 2021. The second – Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 8) [2024] FCA 483 (Penalty Judgment) – was delivered on 10 May 2024.

3    The cross-appeal of the FWO is dependent on the Court finding error in paragraph 387 of the Liability Judgment in which the primary Judge found:

387    It follows that at all relevant times the applicable classification for the employment of the Massage Therapists was HP Level 1.

4    In the event that the Court finds no error in paragraph 387 of the Liability Judgment, the FWO does not press the cross-appeal.

Background

5    In the Liability Judgment the primary Judge found contraventions of the Fair Work Act 2009 (Cth) (FW Act) in respect of employees and related conduct of Foot & Thai Massage Pty Ltd (in liquidation) (FTM), a company which was the owner and operator of a therapeutic massage shop which traded as “foot&thai”. Mr Elvin was the sole director, secretary and shareholder of FTM at all material times until 11 April 2016, when Mr Viet Ngo replaced Mr Elvin in those positions.

6    An additional respondent to the proceedings at first instance, Mr Jun Millard Puerto, was an employee of FTM who was responsible for supervising other FTM employees, and found by the primary Judge to have been involved in various contraventions of the FW Act. Mr Puerto has not participated in the present appeal.

7    In summary, the FWO had alleged:

    underpayment by FTM of wages to employees (relevant employees) recruited from the Philippines to work for FTM as massage therapists;

    breaches of the National Employment Standards (NES) and other terms and conditions of employment prescribed by the FW Act;

    threats of retribution in the event that the employees complained about their situation; and

    poor and misleading record-keeping.

8    Materially, the primary Judge found that the Health Professionals and Support Services Award 2010 (Health Award) applied to FTM and the relevant employees at all relevant times, and that the classification to which the relevant employees belonged was Health Professional Level 1 (HP Level 1).

9    Her Honour further found that FTM had contravened the FW Act, including by:

    failing to pay the relevant employees minimum hourly rates, public holiday penalty rates, Monday to Saturday overtime rates, and Sunday overtime rates in accordance with the Health Award, in contravention of s 45 of the FW Act;

    requiring the relevant employees to work unreasonable hours contrary to s 62(1) of the FW Act, not paying them amounts in lieu of untaken annual leave contrary to s 90(2) of the FW Act, and failing to give each relevant employee the Fair Work Information Statement as required by s 125 of the FW Act, all in contravention of s 44 of the FW Act;

    unreasonably requiring particular employees to spend wages on the business of FTM, in contravention of s 325(1) of the FW Act;

    deducting amounts from the wages of the relevant employees as “staff loans” when the deductions were not authorised by any of the exceptions in s 324(1), in contravention of s 323(1) of the FW Act;

    failing to make and keep proper records, in contravention of s 535(1) of the FW Act;

    making and keeping pay records that were false or misleading, in contravention of reg 3.44(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations);

    in response to a notice to produce issued by the FWO, producing records which did not mention relevant cash refunds or point out errors, in contravention of reg 3.44 of the FW Regulations;

    failing to give the relevant employees pay slips after about 31 March 2014, in contravention of s 536(1) of the FW Act;

    in the pay slips it did give the relevant employees, failing to record the details prescribed by reg 3.46(2) of the FW Regulations, in contravention of s 536(2) of the FW Act;

    taking adverse action against the relevant employees by threatening to send them back to the Philippines and have their families killed if the relevant employees broke any of the rules, discussed their working conditions or reported FTM to “immigration”, in contravention of ss 340(1) and 343(1) of the FW Act; and

    taking adverse action against the relevant employees by injuring them in their employment for reasons which included their race and national extraction, in contravention of s 351(1) of the FW Act.

10    Relevantly, in the Liability Judgment, Her Honour also found that Mr Elvin:

    was knowingly concerned in all of the contraventions by FTM, except the pay slip contraventions;

    was therefore involved in those contraventions within the meaning of s 550(2) of the FW Act; and

    was taken to have contravened those provisions.

11    Her Honour further found that Mr Puerto was knowingly concerned in various contraventions.

12    The only appellant in the present appeal is Mr Elvin, who was self-represented for much of the proceedings before the primary Judge, and also during this appeal.

13    Mr Elvin’s Amended Notice of Appeal is 40 pages in length, and includes grounds of appeal against both the Liability Judgment and the Penalty Judgment. It is appropriate to first confine consideration to Mr Elvin’s grounds of appeal concerning the Liability Judgment, and only then to turn to the Penalty Judgment and, if necessary, the cross-appeal.

Grounds of appeal: Liability Judgment

14    Mr Elvin’s grounds of appeal against the Liability Judgment commence in the following terms:

A.     The denial of procedural fairness in the trial.

B.     Apprehended bias.

C.     The orders made by Justice Katzmann with the Liability Decision 10 months after the trial concluded did cause the denial of procedural fairness.

D.     The predetermination by Justice Katzmann of her decision to grant the Respondent leave to amend the pleadings to include Skill Level 1 of the Health Professionals and Support Services Award 2010 (Health Award) 10 months after the trial concluded did cause actual bias.

E.     The reasons relied upon by Justice Katzmann to find that Skill Level 1 of the Health Award was the correct award and categorisation were illogical and were not supported by the evidence.

F.     The reasons relied upon by Justice Katzmann to find that the Respondent was not a creditor for the purposes of a deed of company arrangement were illogical and were not supported by the law.

G.     The foreseeable risk of a miscarriage of justice due to the Respondent’s forensic choice to not claim for compensation for cashbacks for Mr Benting in the pleadings but to rely on evidence from Mr Benting including serious allegations he paid cashbacks.

H.     Based on A. to G. above it would be unsafe to rely upon the conclusions reached by Justice Katzmann in the Liability Decision

15    Mr Elvin’s specific grounds of appeal are grouped under headings A-G, with much of the material under these headings in the Amended Notice of Appeal being more properly described as submissions. As I observed to Mr Elvin at the hearing, despite there being seven grounds of appeal against the Liability Judgment, there are overlaps between them. In particular:

    Grounds A and C concern claims by Mr Elvin of denial of procedural fairness by the primary Judge in respect of the Liability Judgment;

    Grounds B and D concern claims by Mr Elvin of bias, both apprehended and actual, on the part of the primary Judge;

    Grounds E and F concern claims by Mr Elvin of illogicality in the primary Judge’s reasons;

    Ground G concerns a claim by Mr Elvin concerning the forensic choice of the FWO to not claim for compensation for cashbacks for Mr Ruben Benting in the pleadings, and the manner in which the primary Judge dealt with that issue; and

    Ground H refers back to the earlier grounds and material in the Amended Notice of Appeal.

16    In addition to these grounds, at the hearing Mr Elvin submitted:

In my outline of submissions, I have defined the scope of my appeal grounds so that I might – three best cards, followed by the remaining 10 appeal grounds. To summarise, again, the three best cards are, number 1, Katzmann J used the wrong award. Number 2, Katzmann J was wrong to find the DOCA did not stop the claims by the respondent and/or, the massage therapists. And number 3, the forensic choice by the respondent not to claim cashbacks for Ruben Benting, but to nonetheless put on, and rely upon, highly prejudicial evidence from him that he paid me cashbacks, is a serious issue that Katzmann J should have fully explored, but did not, leaving the real and foreseeable risk of a miscarriage of justice. That was left unexplored. I wish to focus on the grounds…

(transcript 20 August 2025 p 7 lines 37-46)

17    I intend to address Mr Elvin’s grounds of appeal by reference to the grouping of grounds A-H, which include Mr Elvin’s claims to the effect that:

    No award covered the relevant employees; and

    The primary Judge erred in finding that the Deed of Company Arrangement of FTM (DOCA) did not stop claims against FTM or him.

18    Mr Elvin’s third “best card”, namely the forensic choice by the FWO concerning cashbacks for Mr Benting, plainly falls within ground G.

19    Where an appeal involves grounds alleging apprehended bias or the denial of procedural fairness along with other substantive or discrete grounds, the appeal court should first deal with the issues of bias or procedural fairness: Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 271 FCR 461 at [93]. See also Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117] per Kirby and Crennan JJ.

20    It is convenient to first consider grounds A and C which concern claims of denial of procedural fairness, and then turn to grounds B and D which allege bias.

Ground A: denial of procedural fairness

21    In summary, in respect of the conduct of the trial before the primary Judge, Mr Elvin contended as follows:

    The FWO “orchestrated” a flawed and defective proceeding.

    The primary Judge adopted the case of the FWO in its entirety, and largely and substantively disregarded his evidence and submissions.

    By 19 October 2019, shortly before the trial began on 21 October 2019, he had run out of money, could not afford a lawyer, and could not understand most of the legal issues referred to by the FWO’s lawyers and the primary Judge. This was in contrast with the FWO which was legally represented, and which adduced voluminous submissions and evidence.

    On 26 September 2019, the primary Judge granted the FWO leave to continue the proceedings against FTM notwithstanding that it was in liquidation. Mr Elvin did not understand how this would affect his position.

    The fact that none of the respondents at first instance had legal representation in the lead up to the trial should have caused the primary Judge to initiate steps to ensure that each of them was fully aware of the “peril” they faced. The primary Judge should have ensured that Mr Elvin and Mr Puerto were provided sufficient assistance including detailed advice about the procedure and the relevant legal issues, access to legal resources and materials that could help them, and referral to a Registrar, legal aid or pro bono lawyers.

    The primary Judge “adopted a very hard technical approach to [Mr Elvin]”, including striking out parts of his affidavit evidence, and allowing objections to many of the documents on which he sought to rely, in particular the lengthy Australian Federal Police report he had obtained which called into question the honesty of eight of the FWO’s witnesses.

    The FWO made 318 objections to questions that Mr Elvin asked in cross-examination and re-examination during the trial, and the primary Judge allowed almost all of the objections. Mr Elvin was stopped by the primary Judge 81 times during cross-examination. This disrupted Mr Elvin’s train of thought, and was “extremely stressful and tiring”.

    Mr Elvin did not understand the legal rules concerning cross-examination, and did not understand the rule in Browne v Dunn (1893) 6 R 67 HL. Although Counsel for the FWO informed the primary Judge during the trial on 8 December 2020 that the FWO was not taking any Browne v Dunn points, in the Liability Judgment the primary Judge did refer to Browne v Dunn at [553]. Mr Elvin alleged: “I have the impression she used it against me.”

    For the first nine days of the trial Mr Elvin did not have access to the transcripts of the trial, and the FWO’s lawyers did not offer to provide the transcripts to him. This caused him great difficulty in conducting his case. Eventually the FWO “reluctantly” agreed to provide Mr Elvin with copies of the transcripts.

    Mr Elvin did not understand how the trial was to work, and was confused and concerned when the FWO’s lawyers referred to the decision in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The primary Judge did not explain to Mr Elvin with sufficient detail to enable Mr Elvin to understand what he was required to do to avoid a Jones v Dunkel inference being made against him, and referred to Jones v Dunkel numerous times in the course of the Liability Judgment.

    Although the FWO brought actions against Mr Elvin under s 340 of the FW Act, the primary Judge did not explain that the onus of proof was reversed.

22    Mr Elvin further contended in respect of the amount of underpayments that:

    His Amended Defence and Affidavit in reply to the FWO’s calculations evidence included material challenging the accuracy and integrity of instructions received by the calculations witness, Mr Ronnie Wong, the methodology he used and the conclusions Mr Wong reached.

    The primary Judge was unfair to Mr Elvin in referring in the Liability Judgment to underpayment calculations carried out by Mr Wong.

    In any event the primary Judge’s calculations for total underpayments were substantially different from the amounts calculated by Mr Wong.

Consideration

23    Principles of procedural fairness in trials, particularly where one or more of the parties are unrepresented, were summarised in the following terms by Beazley JA (Giles and Whealy JJA agreeing) in the Court of Appeal of New South Wales in Hamod v State of New South Wales [2011] NSWCA 375:

309.    Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

“A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.”

310.    However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

311.    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154.

312.    Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

313.    The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

“But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.”

314.    Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

315.    There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

“A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.”

316.    The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

24    These principles have been cited with approval in many decisions of the Full Court of this Court including FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71; (2025) 309 FCR 566 at [6], [10] and [11]; Von Risefer v Blue Cube Developments Pty Ltd [2024] FCAFC 12 at [49]; NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27]; DOQ17 v Australian Financial Security Authority [2020] FCAFC 219 at [31]; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [103]-[104] and SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] and [58]. In applying these principles in this case I make the following findings.

Having regard to Mr Elvin’s evidence and submissions

25    First, it is plain from the Liability Judgment that the primary Judge had detailed regard to Mr Elvin’s evidence and submissions. In this regard I note the observations of her Honour at [135]-[176], including her Honour’s examination of excerpts from the transcript of the hearing (which were set out in the Liability Judgment). The primary Judge further had regard in her reasons to evidence of witnesses called by Mr Elvin, including his mother Mrs Laura Elvin (at [177]-[182]), his father Mr Colin Godfrey Elvin (at [183]-[190]), and Ms Palma Yu (at [191]-[203]). However, her Honour made significant credibility findings against Mr Elvin, giving detailed reasons at [206]-[217], and also did not consider the evidence of witnesses called by Mr Elvin to be reliable. In particular her Honour concluded that Mr Elvin was not an honest witness, and further:

216.    I formed the view that Mr Elvin was generally prepared to say anything in order to exculpate himself, regardless of whether it was true or accurate.

217.    In these circumstances, I consider that his evidence should not be accepted unless it is against his interest or corroborated by reliable independent evidence. The evidence given by his parents was neither reliable nor independent. I have no confidence in Ms Yu’s capacity to give reliable evidence about the conditions of employment of the Massage Therapists, since she did not work after 1 pm until 2016 and was often absent from the workplace, whether because of the nature of her duties or due to injury or illness.

26    The basis of her Honour’s rejection of Mr Elvin’s evidence, and associated submissions, is apparent from her Honour’s reasons. As Brennan, Gaudron and McHugh JJ explained in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479:

… a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (…See Brunskill [1985] HCA 61; (1985) 59 ALJR 842; 62 ALR 53; Jones v. Hyde [1989] HCA 20; (1989) 63 ALJR 349; 85 ALR 23; Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167.). If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” (… S.S. Hontestroom v. S.S. Sagaporack (1927) AC 37, at p 47.) or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”…

(footnotes omitted)

27    See also Isaacs J in Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [39]; Payne v Long [2020] FCAFC 170; (2020) 280 FCR 362 at [58].

28    Rejection of evidence or submissions, for reasons explained by the primary Judge, does not equate to overlooking or disregarding them. In my view it cannot be said that her Honour failed to have regard to Mr Elvin’s evidence and submissions.

Mr Elvin not understanding court process or proceedings

29    Second, to the extent that Mr Elvin could not understand the court process or proceedings, it was not incumbent on the primary Judge to provide legal advice to him, or to refer him to pro bono resources or a Registrar for assistance. As explained by Samuels JA in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSWCA at 14:

…the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

30    See also Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 445-7, and more recently Chetcuti v Minister for Immigration and Border Protection where Murphy and Rangiah JJ observed:

106.    …a judge’s obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. That obligation may require that a self-represented litigant be informed of fundamental procedures and processes of the Court (at least to the extent that the litigant has not already received that information from some other source). In some cases, the obligation may extend to informing a self-represented litigant, at least in broad terms, of what must be proven. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party. The obligation of the judge is not to place a self-represented litigant in the same position as if he or she were legally represented, but to provide sufficient information, so far as is reasonably practicable, in order to allow a trial to be conducted fairly and in accordance with the law. The nature and content of the judge’s obligation is informed by the particular circumstances of the case and the necessity to provide a fair hearing for each party while maintaining a position of neutrality.

31    I am not persuaded that Mr Elvin was denied procedural fairness because he claimed that he could not understand most of the legal issues referred to by the respondent’s lawyers and the primary Judge. I am also not persuaded that Mr Elvin was denied procedural fairness by the simple fact that, unlike Mr Elvin, the FWO was legally represented. As matters stand, the hearing was conducted over a period of several weeks, with additional time allowed for later filing of submissions. I consider it reasonable to infer that the length of the trial was at least partly attributable to the primary Judge giving leeway to Mr Elvin to conduct his case in a manner convenient to him.

32    Mr Elvin’s complaint about the lack of guidance by the primary Judge was wide-ranging and unparticularised. The primary Judge was required by s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to determine the proceedings in a timely and efficient manner to ensure the efficient use of the resources available to the Court. I am not satisfied that her Honour ought to have conducted the trial in a manner in any way favouring Mr Elvin because of his status as a litigant in person, or compromised the integrity and length of the trial by providing detailed guidance to Mr Elvin.

33    With respect to the availability of pro bono assistance to Mr Elvin, I note that Mr Elvin was legally represented until shortly before the commencement of the trial, and it is unclear whether Mr Elvin subsequently sought referral for pro bono assistance. A party may raise the possibility of a referral pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) and thereby invite the Court to consider the exercise of the discretion under r 4.12, but it is a matter for the Court as to whether there is a sufficient basis for it to consider whether to exercise the discretion and, if so, whether it should issue a referral certificate: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [94]; AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99; Matson v Australian Information Commissioner (No 1) [2021] FCA 685 at [18]. Indeed, as the Full Court said in Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64:

146.    The first complaint is that at no time did the appellants have legal representation and they were disadvantaged as a result.

147.    This complaint cannot be upheld and cannot constitute appellable error. Rule 4.13 of the FCRs provides that a party is not entitled to apply to the Court for a referral for legal assistance under r 4.12. The referral power in r 4.12 is discretionary – that is, the Court may refer a party to a lawyer for legal assistance, not must. There is not the slightest doubt that the appellants were disadvantaged in a number of ways in their conduct of the hearing before the primary judge and of the appeal. Their own lack of understanding of the legal process and the sophisticated concepts being argued was abundantly evident. There is little doubt that legal representation throughout would have been of assistance to them. But such an entitlement cannot be guaranteed or provided by the Court...

34    It is also unclear how Mr Elvin perceived that his conduct of his case could be further aided by the assistance of a Registrar.

Mr Elvin not understanding implications of grant of leave to proceed against FTM

35    Third, on 26 September 2019 the primary Judge delivered judgment in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) [2019] FCA 1601. Order 2 of her Honour’s orders in that judgment was that, pursuant to s 500(2) of the Corporations Act 2001 (Cth) (Corporations Act), the FWO have leave to proceed against FTM notwithstanding that it was in liquidation. At [9] of that judgment her Honour said:

9.    Indeed, the application was not opposed. The liquidators were notified of the application the day it was filed and indicated that they neither consented to nor opposed any orders the Court might make. On 12 September 2019 Mr Elvin advised that he neither consented to nor opposed the application. Mr Puerto remained silent. None of the respondents appeared at the hearing.

36    Later in that judgment, in explaining why leave to proceed would be granted, her Honour observed:

41.    Although the Ombudsman would be free to proceed against the other respondents, in order to obtain relief from them, she first has to prove that FTM contravened the FW Act as alleged. In the circumstances, as the Ombudsman submitted, it would be “incongruous that the principal entity against whom the alleged contraventions are directed, and against whom the relevant prohibitions in the FW Act are intended to operate, should escape liability by reason of voluntary liquidation, while proceedings continue only against [Messrs Elvin and Puerto] by way of their ‘involvement’ in the contraventions...”: cf. Artorios Ink (Mortimer J) at [10].

(emphasis added)

37    At the very least, paragraph 41 should have brought to Mr Elvin’s attention in 2019 that the FWO could proceed against him, and a reason for the FWO seeking leave to proceed against FTM, notwithstanding that it was in liquidation. Her Honour noted that the application for leave on the part of the FWO to proceed against FTM was not opposed by any of the respondents including Mr Elvin.

38    The primary Judge considered the application of the FWO to proceed against FTM in detail, including by reference to legal principles (including the strength of any prima facie case against FTM). Insofar as I am aware the judgment of her Honour in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) [2019] FCA 1601 remains unchallenged and on foot. I am not satisfied that Mr Elvin was denied procedural fairness later in the proceedings because of the decision of the primary Judge in 2019 to grant the FWO leave to proceed against FTM (despite it being in liquidation).

Absence of interpreter and lawyer for Mr Puerto

39    Fourth, to the extent that the participation of Mr Puerto in the primary proceedings is relevant to Mr Elvin’s appeal, I am not persuaded that Mr Elvin was denied procedural fairness because the primary Judge did not order that Mr Puerto be provided with an interpreter and a lawyer. During the hearing of the appeal the following exchange took place:

VANDONGEN J: Yes. So what she actually – the trial judge actually said is that it was open to you to call him. So it was nothing to do with him not understanding things. But it was open to you to call him as a witness. And because you didn’t, then that – she inferred – she concluded that his evidence, if he had given evidence, would not have assisted you.

MR ELVIN: Yes, your Honour. I guess I get what you’re saying. At the time, I had so many things to do, I just – I didn’t think of him. He sat there and I just - - -

VANDONGEN J: Yes.

MR ELVIN: I didn’t think - - -

VANDONGEN J: No one’s - - -

MR ELVIN: - - - of, like, what I should do.

VANDONGEN J: No one here is asking you about why you didn’t call him.

MR ELVIN: Yes, your Honour.

VANDONGEN J: But your proposition is that he didn’t understand what was going on. And all I am trying to understand is how does that – if that’s true, how does that affect the fairness or otherwise of your trial?

MR ELVIN: Well, if he had been given an interpreter, perhaps he would have questioned these allegations. Like, he tried. He tried to stand up, and he asked about one or two questions. He tried. He said, “I didn’t do that”, so – but he didn’t know how to put the words and – like, then he was stopped, and said, “You can’t – you have got to put the words like this”. And then he just goes “Okay”, and sat down. He didn’t know what to say. And so, basically, how can that not be affecting my case, if we were both accused of the same things, and he doesn’t even have an interpreter? So I wouldn’t – like, you know, I missed the fact that I should call him as a witness.

But he wanted to represent himself. He showed that in the transcript. He wanted to talk. He wanted to speak. He wasn’t sitting there in silence and just saying, “Oh, we’re guilty, so I am just going to sit here”. That’s what, you know – that’s what is trying to be said. But that’s not the case, because if you look at the transcript, that’s not the case. He did try. And he did say, “I didn’t do that”, or something like that. He got up, and he said, “I didn’t do that”. And then he couldn’t put the question right, so he was sat back – like, he sat back down, and he was nervous. He was afraid. And that really affected me, because we’re both being accused…

…

VANDONGEN J: So let’s assume – favourably to you – that Mr Puerto didn’t understand anything that was going on in the trial. How does that affect the fairness of your trial, or in some way show that the trial judge made some kind of an error?

MR ELVIN: Because if he rebutted, or if he attempted to rebut, what the witnesses were saying - - -

VANDONGEN J: So does it go this way?

MR ELVIN: - - - then it would have assisted me because we were accused of the same things.

VANDONGEN J: Sorry.

MR ELVIN: We were accused of working together for the same things.

VANDONGEN J: Does it go this way? He didn’t understand; one. If he understood then he would have given evidence; two. And three, if he had given evidence, that evidence would have supported me.

MR ELVIN: Yes, for sure, your Honour.

VANDONGEN J: Is that how it goes?

MR ELVIN: Exactly.

VANDONGEN J: Are they the steps in your argument?

MR ELVIN: Yes, your Honour.

VANDONGEN J: And, therefore, the trial was unfair?

MR ELVIN: Yes, your Honour.

McDONALD J: Did Mr Puerto ask to have the benefit of an interpreter?

MR ELVIN: He was afraid to speak. And no one asked him. Nobody said anything to him. He just sat there. The whole time, it was like – that, no one even looked at him. No one said anything to him. He just sat there and that – like, I was just sitting there. I was just, like, thinking how can this even happen?

McDONALD J: Well, we don’t have the whole transcript before us, but there are portions of the transcript that we do have, where the trial judge asked Mr Puerto whether he wanted to ask questions, or whether he wanted to take an active role.

MR ELVIN: I believe, to my memory, that he was never offered an interpreter. And I did – I believe that in the trial, I did mention that his – yes, I did mention this fact, during the transcript.

…

MR ELVIN: For sure. He had. He understood a little. Like, but it wasn’t about interpreting the words. They can all speak a little bit of English. That’s what they learn at school. Right. They all – they go to school they – in the Philippines, English is actually their first study language. But, you know, they absorb it at different rates, and they’re – some are good and some are worse. Some of the staff talk – spoke better English than he did, and some of the witnesses spoke better English than he did. But when – he was used to interpret, because I would go through the ..... and he was basically like a supervisor of the – of their massage.

And so I would go through the points with him, and he would speak to them in their native tongue. But that didn’t mean I couldn’t have gone through – I would have to talk to each person. So I just left that to him. But it didn’t mean he was, like, better at English. It just meant that they all could understand enough English to communicate. That’s how they were able to see the customers, and the customers, you know – that you have to speak to the customers, because otherwise it’s a big disaster if you can’t speak English. So they were all able to have some English. But the – you know, if you step into a courtroom, it’s different to talking to me in the office. And that’s where the other staff were given assistance with interpretation, but not for Mr Puerto.

(transcript 20 August 2025 pp 48-51)

40    Mr Elvin’s submissions in response to questions from the Bench suggest that his complaint concerning Mr Puerto in the present appeal can be summarised as:

    Mr Elvin’s own shortcomings in conducting his case, as a busy litigant in person, in not requiring Mr Puerto to give evidence or be more robust in the proceedings; and

    What appears to be Mr Elvin’s disappointment concerning Mr Puerto’s conduct as a witness in the proceedings.

41    Mr Puerto was a respondent in the proceedings before the primary Judge. He confirmed to the primary Judge that he did not wish to cross-examine any of the witnesses and would not be challenging their evidence (see the transcript in ACD41/2018 22 October 2019 p 110 lines 3-8). He engaged with the primary Judge in English (see, for example, the transcript in ACD41/2018 22 October 2019 pp 110-111). An interpreter was made available by the Court to Mr Puerto for him to cross-examine witnesses in Tagalog however Mr Puerto declined to do so (see transcript in ACD41/2018 22 October 2019 pp 110-111).

42    Against this background, and referable to the approach of the primary Judge in respect of Mr Puerto, I am not satisfied that the hearing was conducted in a manner procedurally unfair to Mr Elvin.

Upholding objections and interrupting Mr Elvin’s cross-examination of witnesses

43    Fifth, in respect of the rulings by the primary Judge upholding objections made by the FWO to Mr Elvin’s evidence, and/or interrupting Mr Elvin’s cross-examination of witnesses, the primary Judge was obliged to apply the rules of evidence when objections to either questions or evidence were made. Mr Elvin has not identified any legal error of the primary Judge in doing so.

44    It is clear that the primary Judge endeavoured to accommodate Mr Elvin in respect of his conduct of his case. An example of such accommodation can be seen in the transcript of the hearing of 21 October 2019 where the following exchange took place following a question Mr Elvin put to one of the witnesses through the interpreter:

MR SECK:        I object. Relevance.

HER HONOUR:    Well, it’s part of your case that they were in a relationship.

MR SECK:        It’s not part of our case.

HER HONOUR:    Well, it’s one of the – it’s one of the fact that – look, you don’t have to ask that question, because there’s already evidence that she was in a relationship with Mr Durado.

MR ELVIN:        You ---

HER HONOUR:    It’s not contentious. It’s not contentious is it, Mr Seck?

MR SECK:        I don’t think its contentious, but I don’t think it’s relevant to any issue of fact in the case.

HER HONOUR:    Well, we don’t know what the defence is at the moment, so I’ve got to give some latitude to Mr Elvin in setting – in the extent of the questions that he asks.

(transcript ACD41/2018 21 October 2019 p 35 lines 1-20)

45    As her Honour explicitly noted, the Court was prepared to – and did – grant some latitude to Mr Elvin in respect of his conduct of his case.

46    I am not persuaded that the primary Judge denied procedural fairness to Mr Elvin in respect of her Honour’s application of legal rules of evidence.

Access to the transcript

47    Sixth, to the extent that Mr Elvin complained that he did not have access to the transcript of the hearing, it is evident from the transcript of the hearing before the primary Judge that her Honour requested the FWO to make available the transcripts to Mr Elvin without charge. Further, on 24 October 2019 the primary Judge ordered as follows:

1.    The applicant make available to the second and third respondents an electronic copy of the transcript for the purpose of defending this proceeding.

48    I am not satisfied that this complaint of Mr Elvin is substantiated.

Rules in Browne v Dunn and Jones v Dunkel

49    Seventh, Mr Elvin complained about the applications by the primary Judge of the rules in Browne v Dunn and Jones v Dunkel.

Browne v Dunn

50    The rule in Browne v Dunn was explained by Mansfield and Gilmour JJ in Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 as follows:

74.    The principle known as the “rule” in Browne v Dunn (1893) 6 R 67 has two aspects. First, it is a rule of practice and procedure designed to achieve fairness. The rule requires that a party or cross-examiner who intends to invite the court to disbelieve an opposing witness put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The rule is designed to “achieve fairness to witnesses and a fair trial between the parties”.

75.    The rationale of the rule was explained by Lord Herschell at 70-71 as follows:

...it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

76.    Similarly, Lord Halsbury at 76-77 stated:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

77.    The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.

51    In relation to the rule in Browne v Dunn, at the hearing of the appeal Mr Elvin relevantly said as follows:

…Also, if I draw your attention to (xviii) and I was told – I was told, when I was questioning the staff in the witness box, I was told that, okay, I’ve missed a lot of questions that I haven’t said, okay, I didn’t do this, or did I do this, or I didn’t rebut certain things, certain allegations. But because I didn’t understand anything, Katzmann J said, well, we take it that you say that you’re innocent, don’t worry, we’re not going to use the Browne v Dunn. However, like later on in the judgment, Browne v Dunn was used.

(transcript ACD38/2024 20 August 2025 p 43 lines 15-21)

52    The relevant paragraph in the Liability Judgment to which Mr Elvin referred appeared to be [553] where her Honour said:

553.    In his affidavit Mr Elvin deposed, in effect, that none of the Therapists was ever required to repay $800 a fortnight. In his opening submissions, he insinuated that the fact that they all gave evidence to this effect and that the evidence they gave which bore upon the other claims which he denied was also consistent meant that they must have conspired to give false evidence. But no such proposition was put to them in cross-examination although he was repeatedly reminded of his obligation to put a proposition to a witness if he intended to challenge their evidence or lead evidence to the contrary: Browne v Dunn (1893) 6 R 67 (HL). In any case, while this was a theoretical possibility, having regard to the evidence that was given and the inferences that are open from the unexplained absence of evidence from Mr Puerto and the other massage therapists, I am persuaded that the reason the Therapists’ evidence was consistent on this and other questions was that they were telling the truth.

53    Her Honour continued:

554.    Mr Elvin tendered the request for assistance forms lodged with the Ombudsman in 2019 by the six massage therapists who arrived in 2014. He contended, in effect, that as these request forms contained allegations that “closely mirror” the allegations made by the Massage Therapists, and because these employees also worked for True Balance after leaving FTM, they undermined the evidence of the Massage Therapists and supported the case theory he urged upon the Court, namely that there was a conspiracy by the Massage Therapists to harm him. I reject that contention. This evidence does no such thing.

555.    First, there is no evidence of such a conspiracy. Mr Elvin asked Mr Durado in cross‑examination whether he was “part of a plan to take over Foot & Thai with Sarah Clenci”. Mr Durado said he was not. While there was evidence that, after some of the Massage Therapists left FTM, they went to work for True Balance, a massage business owned by Sarah Clenci, there was no evidence of any plot to make false allegations and give false evidence about FTM and/or Mr Elvin. The fact that some of the Therapists went to work for True Balance is entirely neutral. It is understandable that the Therapists would have wanted to work elsewhere. The FTM business was in a precarious state, the company having just entered voluntary administration. Further, as their ability to lawfully remain in Australia depended on them having a sponsor, they would need to secure employment with another employer as quickly as possible after leaving FTM. It is a huge leap to contend that because they left FTM to work at a rival massage business, they conspired to give false evidence under oath against FTM and Mr Elvin. Besides, if their description of the conditions at FTM is to be accepted, they would surely have been attracted to the prospect of working for a different employer.

556.    Second, the bank statements of the Therapists are not inconsistent with their evidence.

557.    The bank statements of the Therapists in the first group disclose that during the first cashback period, from 26 August 2012 until 2 June 2013, in the days following the payment of their wages, they frequently withdrew amounts of around $1,000 (and sometimes $800 precisely) from the same two or three ATMs, and often at around the same time. The same pattern is also evident in relation to the bank statements of the therapists in the second group (Ms Sarto, Castaneda and Ortega).

558.    In his opening submissions, Mr Elvin submitted, in effect, that the Massage Therapists could not have withdrawn $800 a fortnight because the amounts they were remitting to the Philippines would not make this possible. A comparison of the bank statements and remittance records disproves this submission. The relevant information, taken from those documents, appears in Annexure A to these reasons. It demonstrates that, notwithstanding the amounts the Therapists transmitted overseas during the periods in question, there were still sufficient funds for them to have repaid FTM the amounts in question. I have taken into account the evidence which indicates that their living expenses would have been insubstantial. They were not charged rent, apparently had no or at least minimal transport costs since they were driven to and from work and, given the number of hours they were required or expected to attend the workplace, had few opportunities to spend what they earned.

559.    Third, there is also circumstantial evidence to support the Ombudsman’s case.

560.    The Kitomba records generally show that the hours of massage the Therapists performed during their respective “cashback” periods were less than the hours they worked after the periods, indicating that business was slow in those periods. Notably, Mr Elvin gave evidence that the business was more profitable before 2012 when he engaged the Thai workers on a casual basis at a rate of $35 an hour.

561.    Further, under cross-examination Mr Elvin suggested that he was struggling to pay them what FTM had agreed to pay. During cross-examination he claimed (without proof) that the average salary of a massage therapist in Australia was $35,000 but that the minimum he could pay a massage therapist under the 457 visa scheme was $52,000. In an unguarded moment, he went on to say in a passage I have already quoted:

Yeah. So basically, in a perfect sense, if I could have it the perfect way, I would have just given them a $35,000 a year salary and then I wouldn’t have required them to be working so much. I wouldn’t have required – I wouldn’t have had so many requirements. But because of the amount that was described under the 457 [$52,000pa] and then the nature of the massage and the prices we were charging, it wasn’t – it just simply wasn’t possible. Like, they wouldn’t have been able to come [to Australia and earn $50,000 odd].

562.    This evidence tends to corroborate the accounts of the Massage Therapists that they were required to refund a portion of their income when the shop was doing poorly. In the light of this evidence, I accept the Ombudsman’s submission that it is no coincidence that the total amount repaid by each Massage Therapist over the period in question (approximately eight months) — $16,000 for Ms Isugan, Amacio and Bantilan and $14,400 for Ms Sarto, Ortega and Castaneda — is roughly the difference between $52,000 and $35,000.

563.    The obvious purpose of requiring these payments to be made in cash rather than complying with the contract was to avoid the detection of the authorities.

564.    I therefore find that FTM required Ms Isugan, Ms Amacio, Ms Bantilan, Ms Sarto, Ms Ortega and Ms Castaneda to spend $800 per fortnight of their wages to support its business by directing them to refund that amount during the periods in question. I also find that the requirement was unreasonable in the circumstances. The Massage Therapists had no genuine choice about the matter. They received no countervailing benefit, such as reduced hours or extended leave. It was also a breach of their contracts of employment. And it resulted in them being paid below Award wages. It was also unreasonable because it was a breach of FTM’s sponsorship obligations which required that it ensure that the earnings and conditions of the employees it sponsored were not less favourable than an Australian citizen would receive for performing equivalent work (see Migration Act 1958 (Cth), s 140H read with Migration Regulations 1994 (Cth), reg 2.79).

565.    It follows that FTM breached s 325(1) of the FW Act as alleged and therefore contravened s 44 in this respect as well.

54    While the primary Judge referred to the rule in Browne v Dunn at [553] of the Liability Judgment, I do not accept that she applied it. Rather, her Honour formed views without the need to apply that rule. As her Honour stated at the end of [553]:

I am persuaded that the reason the Therapists’ evidence was consistent on this and other questions was that they were telling the truth.

55    In summary – the primary Judge ultimately accepted the evidence of the relevant employees for reasons her Honour explained at [555]-[565], being in summary:

    Notwithstanding the contention of Mr Elvin, there was no evidence of a conspiracy on the part of the relevant employees to harm Mr Elvin (at [555]);

    The bank statements of the relevant employees were not inconsistent with their evidence (at [556]-[558]); and

    There was circumstantial evidence to support the case of the FWO (at [559]-[564]).

56    Her Honour’s findings in respect of the evidence of the relevant employees did not involve application of the rule in Browne v Dunn.

57    Mr Elvin’s contentions in respect of the application by her Honour of the rule in Browne v Dunn are not substantiated.

Jones v Dunkel

58    Eighth, in respect of the rule in Jones v Dunkel it is useful to repeat the nature of the principle, summarised by Windeyer J in Jones v Dunkel at 321 as:

…unless a party’s failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.

59    The nature of the rule was the subject of elaboration by Newton and Norris JJ in O’Donnell v Reichard [1975] VicRp 89; [1975] VR 916 (S Ct Vic/FC) at 929 as follows:

…the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely:

(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and

(b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.

60    See also, for example, Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345; Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [136]; Leach v Comcare [2021] FCAFC 134; (2021) 285 FCR 326 at [87].

61    In the Liability Judgment at [222]-[231] the primary Judge wrote at some length concerning the implications of the rule in Jones v Dunkel. In particular the primary Judge continued:

232.    Here the conditions for the operation of the rule are established and the available inferences are not only open, they should be drawn. The absence of evidence from Mr Puerto is of particular significance, not only because he was clearly available and did not testify, but also because he is a party and was personally involved in many of the critical events. In Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582, in a passage cited by approval in Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253 at [448], Street J observed:

The inference which a Court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. Where the absent witness is a party himself then considerable importance may well attach to the inference. Similarly, the inference is significant if the absent witness is, as in the present case, a person who ... was personally engaged in the transactions in question and who was in fact present at Court during part of the hearing ...

See, too, Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ).

(emphasis added)

62    Her Honour later said:

510.    The Ombudsman claims that the Massage Therapists were not paid in full because certain deductions were made from their wages, described in their pay slips as “staff loans”, when none of the circumstances set out in s 324(1) applied.

Consideration

511.    There was no dispute that the Massage Therapists borrowed money, that money was deducted from their wages, and that some of the pay slips referred to deductions being made for “staff loans”.

512.    While some of the Therapists deposed that they borrowed the money from Mr Puerto, it is clear from the evidence that the loans were not made by him. He was lending the money as agent for FTM or on Mr Elvin’s behalf. Mr Elvin deposed that it was he who provided the loans. In other words, he was the source of the money Mr Puerto lent. In cross-examination he testified that the money came out of the FTM bank account.

513.    In their evidence in chief, some of the Massage Therapists deposed that they borrowed money from either Mr Elvin or Mr Puerto while in the Philippines. Ms Amacio, for example, said she borrowed 8,000 pesos (about AUD150) from Mr Puerto. She remembered writing her name and the amount she borrowed on a piece of paper Mr Puerto gave her at the time and upon which the names of other massage therapists were recorded. But she also said that the paper “did not say anything about the amount that was going to be deducted from [her] wages”. Moreover, pay slips for the period from 16 July 2012 to 26 August 2012 show a total of AUD1,500 in deductions. While Ms Amacio deposed that she believed the deductions were to cover the 8,000 pesos loan, she was unable to account for the considerable difference in the amounts.

514.    In para 35 of their further amended defence FTM admitted that the deductions as alleged were made and it did not plead that any of the exceptions was engaged. In the absence of such a pleading the Court is entitled to infer that none applied: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; (2019) 269 FCR 262 at [112].

63    In the Amended Notice of Appeal Mr Elvin said at paragraph A.(xx) of his submissions (p 8):

I was confused and concerned when the Respondent’s lawyers in closing brought up the Dunkel case. I had no idea and Justice Katzmann never explained that Mr Puerto’s failure to put on evidence supporting me could be used to draw an adverse inference that any evidence he could have given would only have been against me. I now know this is based on Jones v Dunkel [1959] HCA 8, 101 CLR 298. However, at the time I did not understand how the Dunkel inference would affect my defence. Justice Katzmann did not explain to me with sufficient detail to enable me to understand what I was required to do to avoid a Dunkel inference being made against me, and she did not explain this to Mr Puerto.

64    At the hearing of the appeal Mr Elvin reiterated his concerns regarding the inference the primary Judge drew because of the absence of evidence adduced by Mr Elvin from Mr Puerto (see transcript ACD38/2024 20 August 2025 p 47 lines 16-45).

65    It appears that the rule in Jones v Dunkel was specifically addressed in closing submissions at the trial. In particular I note the following excerpts from the transcript:

…All those reasons, your Honour, Mr Elvin’s other witnesses in our respectful submission gave unreliable evidence or demonstrated a lack of memory on some of the key events or weren’t in a position to make any proper observations of what occurred. That deals, your Honour, with the credit issues, unless your Honour has any further questions.

HER HONOUR: No, but there’s one issue. You may deal with this elsewhere, but do you deal with the lack of evidence from Mr Puerto?

MR SECK: No.

HER HONOUR: I mean, the one person who could have corroborated Mr Elvin is Mr Puerto.

MR SECK: The way we look at it is this, your Honour – is that Mr Puerto is entitled to claim the penalty privilege.

HER HONOUR: In his own case.

MR SECK: In his own case. But if he decides to give evidence in favour of Mr Elvin, he would be waiving his privilege. So we don’t take any point on that issue that Mr Elvin decides to claim the penalty privilege.

HER HONOUR: But there is no evidence from him – I mean, it’s not a criminal trial, so he has a right to invoke the privilege – the right to invoke the privilege arises until he hears all the evidence that the ombudsman has called, and then he has to make a decision about what he wants to do. Yes, he need not give evidence, yes, he need not make admissions, but surely the court is entitled to infer that – at least that any evidence he could give would not have assisted the respondent’s case.

MR SECK: The concern I have is whether or not an adverse inference can be drawn from someone claiming the penalty privilege, your Honour.

HER HONOUR: Well, it’s - - -

MR SECK: I think perhaps the case law would suggest - - -

HER HONOUR: It’s not an adverse inference. It’s an inference that – not an adverse inference against him in the case against him. It’s a Jones v Dunkel inference that can be drawn against the company and Mr Elvin, surely.

MR SECK: I suppose I just want to be cautious on this, your Honour.

HER HONOUR: Yes. If you haven’t thought about this, then I would be assisted by any authorities – reference to any authorities.

MR SECK: We will research this, your Honour. Obviously Mr – this is not a criminal trial, so there are significant differences in claiming the penalty privilege compared to the privilege against self-incrimination ..... accept that. We also say that the Evidence Act says in criminal proceedings a co-defendant can’t give evidence – someone can’t give evidence against themselves or a co-defendant can’t give evidence against another co-defendant.

(transcript ACD41/2018 10 December 2020 pp 1390-1391)

66    Further:

MR SECK: The last point, your Honour, this is where we, I think, near the end of it yesterday was whether this position of Mr Puerto whether or not the Jones v Dunkel inference can be raised. That is a complicated issue. I’m happy to deal with that issue now or deal with that later, your Honour, but obviously - - -

HER HONOUR: Well, I think I would appreciate some well thought through submissions, so I will give you leave to put in some written submissions on that question.

MR SECK: Yes. We’ve sought to address it in short in our written submission in the time that we’ve had.

HER HONOUR: All right.

MR SECK: And I will put in some further written submissions on that point, but - - -

(transcript ACD41/2018 11 December 2020 p 1419 lines 15-31)

67    Examining the transcript of the trial, it does not appear that the rule in Jones v Dunkel was otherwise specifically raised or discussed during the parties’ presentation of their cases, including cross-examination of witnesses. The primary Judge also did not refer to the rule in Jones v Dunkel, nor direct the attention of Mr Elvin to it.

68    There is authority, notably emerging from decisions of the Supreme Court of Victoria, that absence of guidance from a trial judge to a litigant in person in respect of the application of the rule in Jones v Dunkel may constitute a denial of natural justice: see, for example, Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294; (2015) 101 ATR 339; Wei v Yu [2015] VSC 726; Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283; Shininggarden Pty Ltd v Omega Building Group Pty Ltd [2024] VSC 583.

69    However, for the reasons that follow, I am not satisfied that there has been a denial of natural justice to Mr Elvin in respect of that rule or the absence of specific guidance by the primary Judge in respect of the failure by Mr Elvin to call Mr Puerto as a witness.

70    First, although her Honour plainly endeavoured to allow Mr Puerto opportunities to engage with the witnesses and otherwise participate in the conduct of the trial, Mr Puerto’s statements in response to her Honour’s questions indicated, simply, that he did not wish to conduct any cross-examination of witnesses, or participate in the trial in any meaningful fashion. In particular I note the following exchanges between the primary Judge and Mr Puerto:

MR ELVIN: I’m sorry about that question. Let’s just finish it now, your Honour.

HER HONOUR: Now, Mr Puerto, you told the court and the Ombudsman that you did not wish to cross-examine any of the witnesses and you - - -

MR PUERTO: Yes, your Honour.

HER HONOUR: ..... the matter you won’t be challenging their evidence.

MR PUERTO: Yes.

…

HER HONOUR: And, Mr Puerto, in paragraph 51 of Ms Castaneda’s – you can sit down, Ms Byrnes. In paragraph 51 of Ms Castaneda’s first affidavit, she originally stated that she kept a notebook of – she stated that she kept a notebook of the number of clients she massaged every day, and she did that for three months from the time she started working. Three months later Colin told her he didn’t want her to keep a notebook of her customers because he didn’t want immigration to find out about it. Today, she corrected to substitute your name for Mr Elvin’s. Do you want to ask – do you want to ask her any questions about that?

MR PUERTO: I can can’t remember doing this, your Honour.

HER HONOUR: You can remember doing that?

MR PUERTO: I cannot remember.

HER HONOUR: I see. But you don’t want to suggest to her that you did not do that?

MR PUERTO: ..... tell her that I didn’t do that?

…

HER HONOUR: Well, if you are going to put on evidence to say that – to contradict that, to say that you did not tell her that you did not want her to keep a notebook of customers because you did not want immigration to find out, if you’re going to put on evidence about that, then you need to give her an opportunity to deal with your evidence. If you can’t remember whether or not you told her that, then it’s probably pointless to question her, but if you’re going to put on positive evidence to say that you didn’t tell her that, then you will need to give her a chance to answer that. So do you want to ask a question or not?

MR PUERTO: As her about this one, yes. Ms Janice, in your statement – can I speak to her – to our language?

HER HONOUR: Yes. This is – you would prefer to speak in Tagalog, would you?

MR PUERTO: Yes, for her.

....

MR PUERTO: Ms Castaneda, I can’t remember. So I can’t remember if there are notebooks - - -

HER HONOUR: No, just a moment.

MR PUERTO: Sorry.

HER HONOUR: Well, that’s not helpful. I mean, if – I asked you whether you’re going to put on evidence that you didn’t tell her this, and now you’re telling her that you can’t remember. Do you want to ask her a question or not?

MR ELVIN: Is that myself?

HER HONOUR: Or just make a statement. No, I’m talking to Mr Puerto.

MR ELVIN: Sorry.

MR PUERTO: I don’t want to ask questions, your Honour ..... I’m confused.

MR ELVIN: Your Honour, I think Mr Millard [sic : Puerto] is in the same position as me, where we don’t understand that, if we don’t contest something now, we don’t get a chance to say our own piece.

HER HONOUR: Well, I’ve made that clear.

MR ELVIN: I know.

HER HONOUR: And you’ve been legally represented.

MR ELVIN: But Mr Millard [sic : Puerto] hasn’t. It’s – I – I wasn’t – I wasn’t aware of what he was up to or anything, so I just didn’t know – but I believe he’s contesting as much as I am. I’m not sure. Maybe – but I think he just doesn’t know and he’s sitting there and just thinking that he has to listen and make his own statement later. That’s what I was under the impression of. I didn’t have enough legal advice to even tell me any of that.

HER HONOUR: Well, I have made it clear for you from the outset.

MR ELVIN: Yes, you have made it clear. I - - -

HER HONOUR: And - - -

MR ELVIN: I understand.

HER HONOUR: - - - he heard what I was putting to you.

MR ELVIN: He doesn’t – he has not been – he’s not able to follow, I don’t think, your Honour, honestly, but that’s not for you.

MR SECK: Can I indicate, your Honour, that Mr Puerto did have a lawyer for a six month period and he in fact consciously made a decision not to cross-examine when he indicated that at one of the earlier directions hearings, so this is not a matter of now knowing what to do. There was a deliberate decision made and communicated.

HER HONOUR: Yes. All right. Well, Mr Puerto says he doesn’t want to ask any questions now; correct?

MR PUERTO: Yes.

HER HONOUR: All right.

MR ELVIN: Just to clarify, your Honour, so is he not able to contest any of the stuff that he hasn’t - - -

HER HONOUR: Well, he has chosen not to.

MR ELVIN: Okay. So Mr Puerto, you believe – do you - - -

HER HONOUR: Sorry.

MR ELVIN: Okay. Yes.

HER HONOUR: He’s an autonomous individual. He’s entitled to do as he chooses, Mr Elvin.

MR ELVIN: I’m sorry, your Honour. I’m just – I’m just concerned he doesn’t understand, and it’s not working out for him, but that’s – that – as you said, that’s not my problem.

(transcript ACD41/2018 22 October 2019 pp 110-113)

71    Mr Elvin was clearly present for these exchanges.

72    Second, while Mr Elvin claimed that he was disadvantaged by the rule in Jones v Dunkel not being brought to his attention during the course of the proceedings, he has not explained how he was disadvantaged. Further, I am not persuaded that Mr Elvin was as naïve as the image he sought to portray at the appeal. Although he was a litigant in person at the trial before her Honour, it is illuminating to contrast Mr Elvin’s very active involvement in those proceedings and his conduct of his case during the trial, with that of Mr Puerto (who, as I have already noted, was plainly unwilling or uncomfortable engaging with the proceedings at all). This contrast would have also been apparent to the primary Judge.

73    I am satisfied that Mr Elvin would have been well able to form a view as to whether, had he called Mr Puerto as a witness, any evidence given by Mr Puerto would have assisted the case against FTM or Mr Elvin personally. In the circumstances, I infer that Mr Elvin concluded from Mr Puerto’s responses to questions put to him by the primary Judge, and Mr Puerto’s clear unwillingness to be involved in the proceedings, that, unlike the witnesses who Mr Elvin actually called in the trial, calling Mr Puerto as a witness would not have assisted Mr Elvin’s case. Indeed this inference is supported by the following exchange between Mr Elvin and the Full Court Bench during the hearing of the appeal:

VANDONGEN J: So how did that affect your case?

MR ELVIN: Because he sat there in silence. It was – it went against me in the judgment.

VANDONGEN J: In what way did it go against you?

MR ELVIN: I think it was the Dunkel thing.

VANDONGEN J: So what the - - -

MR ELVIN: Well, I’m not - - -

VANDONGEN J: What the trial judge said is that: Mr Puerto was a key player – And I’m reading from paragraph 221 of the judgment: Was a key player, and the person through whom Mr Elvin’s instructions and alleged threats were conveyed. Mr Elvin did not adduce any evidence from him. So the point being made there, as I understand it, is that it’s not that he sat silent and said nothing. It’s that you didn’t call him as a witness, and that the trial judge then drew an inference from that, that his evidence could not have helped you, if he had given evidence.

MR ELVIN: I should have called him. That’s something a lay person does. Like, I should have called him up. But he wasn’t saying anything, so I just kind of, like, thought he wasn’t in it. And I was just, like, presenting the case. I kind of, like, left him out, in my mind, because he wasn’t - - -

VANDONGEN J: Yes, but I’m not here looking for explanations now, as to why you didn’t call him.

MR ELVIN: Yes.

(emphasis added, transcript ACD38/2024, 20 August 2025 p 47 lines 9-45)

74    Third, and as I have already noted, although Mr Elvin was self-represented by the time of the commencement of the trial, until immediately before the trial he was represented by lawyers (see transcript ACD41/2018 21 October 2019 p 2 lines 10-11 and 31-34). All parties were given the opportunity to nominate witnesses to call, and at some point did so. It appears that the witnesses Mr Elvin chose to call did not include Mr Puerto. Almost certainly, in the provision of legal advice to Mr Elvin by his lawyers, the question of who Mr Elvin should call as witnesses would have arisen. I consider that the prospect of evidence to be given by Mr Puerto – who was a respondent, but also potentially a witness – would invariably have been canvassed. I infer that, up until the commencement of the trial when Mr Elvin was represented, he and his lawyers had made the deliberate decision not to call Mr Puerto as a witness. It is unclear why such a decision would have been made, and whether it was against the background of Mr Puerto claiming a privilege against self-incrimination, as noted in the exchanges between the primary Judge and Mr Seck during the trial (see, for example, ACD41/2018 4 February 2020 p 5 lines 38-47). In any event, to the extent that there was a risk that the primary Judge could make a finding against FTM (and potentially in turn Mr Elvin) referable to the rule in Jones v Dunkel because Mr Elvin did not call Mr Puerto as a witness, it is reasonable to infer that at least the legal representatives of Mr Elvin would have been aware of that possibility during the time that they acted for Mr Puerto, and that they would have so informed Mr Elvin.

75    Fourth, at the trial Mr Elvin was specifically cross-examined by the FWO about Mr Puerto. The evidence Mr Elvin gave concerning Mr Puerto was not disputed by Mr Puerto in any way, despite the fact that Mr Puerto was a respondent and appeared to be personally present throughout much of the trial (see, for example, transcript ACD41/2018 2 December 2020 pp 672, 682, 683). Similarly, Mr Elvin put a large number of questions in cross-examination to witnesses called by the FWO concerning alleged statements and actions by Mr Puerto, presenting facts to them in those questions referable to Mr Puerto (see, for example, transcript ACD41/2018 7 December 2020 pp 1029, 1030, 1031, 1032, 1034, 1035, 1242, 1243, 1244). It was therefore open to the primary Judge to make findings concerning Mr Elvin’s evidence, and that of other witnesses, including alleged statements and actions by Mr Puerto, noting that Mr Puerto did not dispute that evidence insofar as Mr Puerto was concerned.

76    In summary: the application of the rule in Jones v Dunkel in this case could result in the drawing of an inference that, in the absence of calling Mr Puerto to give evidence, Mr Puerto’s evidence would not have helped the case of either FTM or Mr Elvin. However, the extent to which a trial Judge is required to explain to a litigant the operation of such rules of evidence depends on the facts of the particular case. In the circumstances of this case, where:

    Mr Elvin had been represented up to immediately before the commencement of the trial and presumably had the benefit of legal advice to that point, including referable to witnesses to be called;

    The trial was ultimately lengthy and complex, conducted over 15 days but spanning in excess of 12 months;

    Mr Puerto had indicated, repeatedly in open Court when Mr Elvin was present, that Mr Puerto was confused and did not wish to engage in the proceedings beyond the extent to which he was addressed by the primary Judge;

    Mr Elvin was undoubtedly aware of the position and attitude of Mr Puerto to engaging in the proceedings, because Mr Elvin was present in Court at all relevant times; and

    Mr Elvin himself made repeated claims concerning Mr Puerto’s conduct and evidence that were not disputed by Mr Puerto, notwithstanding that Mr Puerto was present at all relevant times,

I am unable to identify how a specific warning by her Honour to Mr Elvin referable to the rule in Jones v Dunkel, and Mr Elvin’s failure to call Mr Puerto, would have made any difference at all to the manner in which Mr Elvin conducted his case.

77    Mr Elvin has not substantiated a claim that he was somehow deprived of a just trial in the absence of a specific explanation concerning the rule in Jones v Dunkel by her Honour.

78    Ground A of the appeal against the Liability Judgment is not substantiated.

Ground C: denial of procedural fairness

79    In relation to orders made by the primary Judge after the trial, Mr Elvin stated in his Amended Notice of Appeal (at p 14):

(i)    Ten months after the trial concluded on 14 October 2021 Justice Katzmann simultaneously published her Liability Decision and made orders 1 to 12 (the orders) for further steps to be taken by the parties. I appeal against those orders on the -grounds that in effect they deny me procedural fairness. In particular, the right to be heard. That is because the orders provide for me to file an amended defence but make no provision for me to file evidence to support my defence, or submissions to address my defence, and no provision was made for my defence to be considered by the Court.

(ii)    Conversely, the orders make provision for the Respondent to file an amended pleading, further submissions, and an affidavit including calculations evidence.

(iii)    The orders provide only for me to file evidence in reply to the Respondent’s calculations evidence. This order limits me to addressing only the figures in the calculations evidence and does not contemplate me addressing and challenging how the conclusions in the calculations evidence were reached.

80    The orders of her Honour referable to ground C were as follows:

THE COURT ORDERS THAT:

1.     Leave be granted to the applicant to file and serve a second further amended originating application and a second further amended statement of claim in the form of annexures ST-47 and ST-48 to the affidavit of Sharissa Thirukumar affirmed on 22 December 2020.

2.     Leave also be granted to the applicant to amend the second further amended statement of claim to incorporate in paragraphs 152, 153, 159 and 160 the following additional cross references: 47HP, 53HP, 59HP and 65HP.

3.     By 21 October 2021, the applicant file and serve the second further amended originating application and statement of claim incorporating the above amendments.

4.     By 28 October 2021 the applicant file and serve further submissions and, if necessary, affidavit evidence, particularising in detail the steps taken by Mr Ronnie Wong that enabled him to reach the conclusion that the base hourly rates at all relevant times were as set out in the table to paragraph 4 of his fourth affidavit affirmed on 22 December 2020.

5.     By 4 November 2021, the second respondent file any amended defence in response to the amendments made in the second further amended statement of claim.

6.     By 25 November 2021, the second respondent file and serve any affidavit evidence in response to Mr Wong’s fourth affidavit and any further affidavit filed as a result of order 4 above.

7.     The parties use their best endeavours to agree on orders giving effect to these reasons, including the amount of the underpayments.

8.     The matter be referred to Senior National Judicial Registrar Priestley to assist the parties to reach agreement.

9.     If the parties are unable to reach agreement by 16 December 2021, pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) Senior National Judicial Registrar Priestley be appointed as a referee to conduct an inquiry into the following questions in accordance with these reasons and to provide a written report to the Court setting out her opinion on those questions and her reasons:

(a)     With respect to minimum wages, public holidays worked, Monday to Saturday overtime and Sunday overtime worked:

(i)     What amounts should have been paid to each of the Massage Therapists during his or her period of employment with the first respondent?

(ii)     Comparing the agreed amounts paid to each of the Massage Therapists during their employment with the amounts they should have been paid, to what extent was each of them underpaid?

(b)     With respect to accrued untaken annual leave, comparing the agreed amount of untaken annual leave each of the Massage Therapists had at the time their respective periods of employment with the first respondent ended with the amounts they should have been paid in accrued untaken annual leave, to what extent was each of them underpaid?

10.     The parties be provided with an opportunity to make further submissions on these questions to the referee in accordance with any directions she may make.

11.     The matter be listed for further case management within seven (7) days of the provision to the Court of the referee’s report.

12.     Leave be granted to apply on three (3) days’ notice.

81    Background evidence in relation to the making of these orders can be seen in an affidavit of Sharissa Thirukumar, a lawyer with the FWO, affirmed 22 December 2020, in which Ms Thirukumar deposed (in summary) that:

    The FWO had commenced the primary proceedings on 22 June 2018 pleading that the relevant employees were covered by the Health Award and classified as Support Services Level 2 employees (SSE Level 2), on the basis of evidence in the FWO’s possession at that time.

    There was no evidence that the relevant employees were required to belong to a professional association in order to practice as massage therapists, including for FTM.

    During the first part of the liability hearing between 21 October 2019 and 25 October 2019, Counsel for the FWO raised with the Court the complexities in determining award coverage and classification for the relevant employees in the circumstances where they did not hold Australian qualifications.

    On 25 October 2019, the FWO was granted leave to amend the pleadings, to plead in the alternative that the Hair and Beauty Industry Award 2010 (Hair and Beauty Award) covered and applied to the relevant employees. Mr Elvin filed an amended defence on 17 March 2020 but did not plead to the award coverage for the relevant employees. Similarly, on 29 June 2020 Mr Elvin filed an outline of submissions on liability but did not address award coverage or classification of the relevant employees.

    On 1 December 2020, Mr Elvin submitted orally that no award covered the relevant employees.

    Between 12 November 2020 and 1 December 2020, the Department of Home Affairs and the FWO received further material from Mr Elvin. Following receipt of that additional evidence, on 10 and 11 December 2020 the FWO raised with the Court during the hearing the prospect of applying for leave to amend the further amended statement of claim, to plead that the relevant employees were classified as HP Level 1 under the Health Professionals and Support Services Award 2010.

82    On 11 December 2020, the Court made orders in the following terms:

…

2.     On or before 23 December 2020, the applicant file and serve:

(a) any interlocutory application seeking leave to file a second further amended statement of claim further pleading that the Massage Therapists fall within the classification of Health Professional Level 1 of the Health Professionals and Support Services Award 2010 and making any consequential amendments (Interlocutory Application);

(b) an affidavit in support of the Interlocutory Application;

(c) a further affidavit of Ronnie Wong annexing underpayment calculations performed applying the classification of Health Professional Level 1 in the Health Professionals and Support Services Award 2010; and

(d) any submissions supporting the Interlocutory Application.

…

4.     By 20 January 2021, the respondents file any submissions in response to the applicant’s Interlocutory Application.

…

7.     Any Interlocutory Application filed by the applicant be determined on the papers.

83    On 23 December 2020, the FWO sought leave to amend their Further Amended Originating Application and Further Amended Statement of Claim by filing an interlocutory application seeking the following orders:

1.     The Applicant be granted leave to file and serve a second further amended originating application in accordance with the proposed amended application in Annexure ST-47 to the affidavit of Sharissa Thirukumar affirmed 22 December 2020.

2.     The Applicant be granted leave to file and serve a second further amended statement of claim in accordance with the proposed amended statement of claim in Annexure ST- 48 to the affidavit of Sharissa Thirukumar affirmed 22 December 2020.

84    On 19 January 2021, Mr Elvin filed submissions opposing the grant of leave.

85    The reasons her Honour gave for making those orders are set out, at length, from [267] of the Liability Judgment. After explaining the background, from [302] her Honour detailed her consideration of the FWO’s interlocutory application to amend the pleadings. Materially, her Honour found that, although Mr Elvin was understandably aggrieved at the lateness of the interlocutory application, the interlocutory application should be granted because, in summary:

    The FWO appeared to have been misled by Mr Elvin into thinking that the relevant employees had no formal qualifications, and until Mr Elvin’s cross-examination, the FWO believed that it lacked sufficient information to enable it to plead that the HP Level 1 classification applied (at [304]).

    The evidence adduced from Mr Elvin in cross-examination during the trial accorded with the evidence of Ms Thirukumar in respect of the experience and qualifications of the relevant employees (at [308]).

    The new information elicited in cross-examination was that Mr Elvin required the relevant employees to attend a training institution before commencing work for FTM. A qualification “deemed acceptable by the employer” was sufficient to place a health professional in the classification of HP Level 1. Armed with this information, which was inconsistent with the information provided by Mr Elvin through his solicitors, the FWO could more confidently claim that the relevant employees were properly classified as HP Level 1 (at [312]).

    The case was distinguishable from Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. Unlike in Aon, the FWO was not seeking leave to add a substantially new claim, the FWO’s decision was not tactical, and the FWO had provided an explanation to the Court referable to emerging evidence. Any prejudice to Mr Elvin was largely, if not entirely, of his own making (at [317]).

    There was minimal delay on the part of the FWO in seeking leave to amend (at [318]).

    The interests of the relevant employees should be considered (at [319]).

    The case should be determined on its merits (at [320]).

86    Her Honour then continued:

325.    Sixth, I take into account Mr Elvin’s feelings but any prejudice occasioned to him as a result of a grant of leave is minimal in the scheme of things. He opened his case by saying that the Health Award did not apply. There is no reason to think that Mr Elvin’s position would have been any different if the Ombudsman had pleaded from the outset that the Massage Therapists were properly classified as HP Level 1. The fact that the amounts claimed in the proposed second amended statement of claim are substantially higher than those previously claimed is simply the consequence of the application, if it be the case, of the correct classification in the Award.

326.    Seventh, I reject Mr Elvin’s submission that it would be futile to grant the Ombudsman’s application.

87    Her Honour further observed:

332.    In any case, the pleading currently relies on the Health Award. The only change the Ombudsman seeks to make is to the classification into which the Massage Therapists fell.

88    In respect of the ongoing case management of this issue, her Honour said:

337.     Mr Elvin complained that he had not been given an opportunity to file a further amended defence. But the complaint is premature. He will be given that opportunity once the Ombudsman files her documents. He will also be given an opportunity to address the new evidence from Mr Wong. As I indicated to the parties at the hearing, I do not propose making final orders in this judgment. Rather, I intend to do as I foreshadowed, namely to direct the parties to try and agree on the orders in the light of my findings and reasons and, if they are unable to do so, to refer to a referee the question concerning the extent of the underpayments. Mr Elvin may file any evidence he wishes in response to Mr Wong’s affidavit and he may make submissions on the matter to the referee in accordance with any directions the referee may make.

338.     In the meantime I will proceed on the basis that he denies the new allegations.

89    In written submissions prior to the delivery of the Liability Judgment, Mr Elvin opposed the grant of leave to the FWO to further amend its pleadings referable to the inclusion of HP Level 1 as the applicable categorisation of employment of the relevant employees. Nonetheless, in appealing the Liability Judgment Mr Elvin did not take issue with that grant of leave (being orders 1, 2 and 3 of 14 October 2021) or order 4 contemplating the filing of submissions and evidence by the FWO. Rather, in the appeal Mr Elvin takes issue with the case management orders made by the primary Judge as set out above as denying him procedural fairness, in particular that:

    he was ordered to file an Amended Defence, however

    the orders made no provision for him to file evidence to support his defence, or submissions to address his defence,

    no provision was made for his defence to be considered by the Court, and

    the orders of the primary Judge contemplated only that Mr Elvin file evidence in reply to the calculations evidence of the FWO.

90    In my view, for the following reasons, Mr Elvin was not denied procedural fairness by the primary Judge in terms of ground C of the appeal.

91    First, s 37M of the FCA Act requires civil litigation to be conducted in an efficient, expeditious and cost-effective manner. The orders of the primary Judge of 14 October 2021 must be viewed in the context of a lengthy trial which had been before the Court for several years. The proceedings before her Honour included 14 case management hearings as well as emerging evidence during the trial which went to the heart of the case. Specifically, the evidence that emerged about the qualifications and experience of the relevant employees were determinative of the application of the appropriate award to their employment conditions. As the primary Judge observed at [278], evidence emerged during the trial indicating that the relevant employees were in all likelihood “health professionals” within the meaning of the Health Award, and in their closing submissions the FWO contended that the relevant employees fell either within SSE Level 2 or HP Level 1.

92    As a general proposition, case management orders to expedite progress and ultimate determination of litigation are under the control of the trial Judge. The primary Judge in this case made case management orders on 11 December 2020 after the parties had otherwise closed their cases, anticipating the filing of an application by the FWO to amend – but effectively regularise – the pleadings after the FWO had, at the trial, raised the prospect of amendment to address evidence which had emerged during the trial. Importantly, however, on that date her Honour also made orders for the filing of submissions by Mr Elvin in respect of this issue. For the reasons her Honour gave in the Liability Judgment, leave was granted to the FWO to amend its pleadings in those terms. There is no material before the Court to suggest that the primary Judge failed to take into account Mr Elvin’s views in deciding to grant leave to the FWO to amend its pleadings.

93    Second, the questions of whether the employment of the relevant employees was subject to an award, and, if so, which award, were plainly front and centre of the issues before her Honour throughout the trial, as found in the pleadings, and were the subject of evidence and submissions. The parties were undoubtedly aware that this was the case. As the primary Judge noted at [283], the position of Mr Elvin throughout the trial, up until the delivery of the liability judgment, was that no award covered the relevant employees. At the close of the trial, the FWO had clearly put to the primary Judge that it sought to press a case that the relevant employees were subject to either the Health Award or the Hair and Beauty Award. It was in these circumstances that the primary Judge made case management orders anticipating an amendment to the pleadings in this respect.

94    The resolution of issues in the case, including the calculation of underpayments (if any), plainly required findings by the primary Judge concerning the application of any relevant award(s). As at December 2020, all witnesses had given their evidence and been cross-examined. Indeed, it was because of the evidence that emerged from the cross-examination of Mr Elvin that the FWO sought to amend its pleadings.

95    Third, and importantly, orders 4 and 5 of the primary Judge of 14 October 2021 followed from her Honour’s findings concerning the applicability of the Health Award, the characterisation of the relevant employees as HP Level 1, and her Honour’s requirement that calculations of base payments be clarified. That her Honour sought further clarification was plain from observations of her Honour at, for example, [436]-[446] where her Honour noted her difficulty following certain base rate calculations of the FWO’s witness Mr Ronnie Wong. The extent to which the primary Judge required further information to calculate the correct amount of underpayments, referable to existing evidence before the Court, did not undermine the findings of her Honour as to the application of the Health Award. It was open to the primary Judge to seek further information to progress the litigation towards finalisation, in particular the precise calculation of underpayments. Importantly, the orders of the primary Judge contemplated that the parties could agree on the level of underpayments in light of the findings in the Liability Judgment, and that, in the absence of agreement, the relevant amount would be determined by a Referee to whom Mr Elvin could adduce evidence or make submissions.

96    Fourth, the primary Judge made it clear in her reasons for decision in the Liability Judgment that although findings as to law and fact were made, final orders were not made at that time. Her Honour’s orders anticipated further input by both parties as to any final orders, materially referable to further hearings before a Referee to calculate the amount of underpayments. That is apparent from later comments of her Honour in the Penalty Judgment delivered on 10 May 2024, in particular:

3.    There was a considerable delay between the publication of the liability judgment and the hearing on relief occasioned by the inability of the parties to agree on the value of the underpayments of wages and other entitlements to reflect the findings in the liability judgment, the consequential referral to a referee of the determination of the amount of underpayments, delay in the receipt of the referee’s report, and the lengthy period of time afforded the parties to make submissions on the adoption of the report and then on the questions relating to relief.

(emphasis added)

97    Indeed, examination of the Court file in ACD41/2018 reveals extensive submissions filed by both Mr Elvin and the FWO following delivery of the Liability Judgment up until the final determination of the proceedings.

98    Ultimately, Mr Elvin was aware that the FWO sought to amend its case. The FWO relied on evidence of its witness Mr Wong in respect of the underpayments the FWO claimed, and subsequently sought to rely on further affidavit evidence of Mr Wong to that effect. The primary Judge made orders for further clarification of those calculations to assist the Court, and permitted Mr Elvin to file any evidence he sought fit. The process set in train by the orders of 14 October 2021 contemplated further input by Mr Elvin into hearings before the Referee.

99    There is no material before the Court which would support any finding that Mr Elvin would have made any submissions, or adduced any fresh evidence, differently to that which had already been presented by him to the Court prior to delivery of the Liability Judgment. Mr Elvin was at liberty to make submissions, and adduce fresh evidence, to the Referee appointed by her Honour to calculate underpayments, and, as her Honour noted at [972], make any fresh submissions to her Honour when the matter returned to Court for the hearing on penalties (which Mr Elvin plainly did).

100    I am not persuaded that Mr Elvin was denied procedural fairness in respect of the orders of 14 October 2021. Ground C of the appeal is not substantiated.

Ground B: apprehended bias

101    In respect of the issue of apprehended bias referable to ground of appeal B, Mr Elvin submitted in summary as follows:

    On 4 February 2020 there was a case management hearing before the primary Judge, whereby her Honour noted Mr Elvin’s failure to comply with Court Orders for the filing of documents and told Mr Elvin that leave was required to file further documents. Mr Elvin “apprehended” bias on the part of the primary Judge because her Honour “gave me the impression that she was angry with me”.

    On the same day the primary Judge made Orders that gave Mr Elvin 10 days to draft, file and serve an amended defence, and 24 days to draft, file and serve affidavit evidence. This caused Mr Elvin to “apprehend bias” against him as it was “an impossible task”.

    On 6 March 2020, the primary Judge granted an extension of time to Mr Elvin for the filing of any amended defence and affidavit evidence. Mr Elvin again apprehended bias against him as “there was insufficient time provided to [him] to do what was ordered”.

    On 16 March 2020, the primary Judge granted another extension of time to Mr Elvin for the filing of any amended defence and affidavit evidence but ordered Mr Elvin to pay the applicant’s costs referable to Mr Elvin’s interlocutory application filed on 5 March 2020 and the case management hearing on 4 February 2020. Mr Elvin managed to file his Amended Defence and the other documents in time. However, Mr Elvin was “under extreme pressure” and did not properly make out his defence in the documents.

    Between 30 March and 30 November 2020, Mr Elvin served on the FWO seven notices to admit, five notices to produce and sought leave to serve them with one set of interrogatories. The primary Judge did not grant Mr Elvin leave to serve interrogatories. The primary Judge again ordered Mr Elvin to pay costs to the FWO. Mr Elvin “apprehended” bias because the primary Judge “made it clear she was angry with [Mr Elvin]” in her Honour’s decision.

    Mr Elvin perceived the primary Judge’s ordering of costs against him “as a punishment” on the basis that the Fair Work jurisdiction is ordinarily a no-costs jurisdiction.

    At the commencement of the trial, Mr Elvin “apprehended” bias because her Honour allowed all of the strike-outs of Mr Elvin’s evidence requested by the FWO’s lawyers, and most of their objections to Mr Elvin’s proposed tender documents.

    In the Liability Judgment the primary Judge accepted the FWO’s submission on the Jones v Dunkel inference against Mr Puerto. Mr Elvin “apprehended” bias because, at trial, her Honour did not enquire about Mr Puerto’s English language ability or offer an interpreter. Her Honour also “knew or should have known that [Mr Puerto] had inadequate English language ability” but did not explain to Mr Puerto what the Jones v Dunkel inference was.

    Mr Elvin “had the impression” that the primary Judge used Browne v Dunn to reject Mr Elvin’s evidence.

    At one point during the trial, while Mr Elvin was cross-examining a witness, the primary Judge interrupted Mr Elvin with the words “I object”. The primary Judge apologised immediately after, but Mr Elvin “apprehended” bias as he had the impression that her Honour “was working with the respondent’s lawyers”.

    On numerous occasions during the trial her Honour talked to the FWO’s lawyers about the law. Mr Elvin “apprehended” bias because her Honour did not explain the law adequately for Mr Elvin to understand the subject matter or ask Mr Elvin if he wished to consult a Registrar.

    At one point during the trial her Honour cautioned one of the FWO’s witnesses about self-incrimination and referred him to independent legal advice. Mr Elvin “apprehended” bias because her Honour did not caution him when the FWO’s lawyers cross-examined him on potentially incriminating matters.

    Her Honour requested the Court record to reflect the fact that some of the FWO’s witnesses cried under cross-examination by Mr Elvin. Mr Elvin “apprehended” bias because her Honour did not do the same when Mr Elvin cried under cross-examination by the FWO’s lawyers.

    Mr Elvin “apprehended” bias because her Honour accepted the evidence of all of the FWO’s witnesses, but did not accept any of Mr Elvin’s evidence.

    Mr Elvin “apprehended” bias from the manner in which her Honour spoke with him, including by saying the words “well, that’s your misfortune” in response to Mr Elvin’s attempt to tender a document on 10 December 2020, and interrupting Mr Elvin on other occasions with the words “no, no, no” in a serious tone “expressing disapproval and anger” towards Mr Elvin.

Consideration

102    It is well-settled that the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge was required to decide: SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8; (2026) 100 ALJR 489 at [1], [40] per Gageler CJ and Gleeson J, [59] per Gordon J, [104] per Edelman J, [130] per Jagot J, [171] per Beech-Jones J.

103    Contrary to the established law, Mr Elvin’s submissions were cast in terms that he “apprehended bias” in the primary Judge’s conduct of the trial.

104    It is the submission of the FWO that none of the conduct alleged by Mr Elvin demonstrated, individually or cumulatively, that the primary Judge did not bring an impartial and unprejudiced mind to the resolution of the questions at hand.

105    In order to conclude that the primary Judge’s decision was affected by apprehended bias, I must first be satisfied that the primary Judge’s conduct was correctly characterised by Mr Elvin, and then assess that conduct by reference to the test for apprehended bias.

106    I will now consider each of the alleged occurrences of apprehended bias in turn.

Deadlines to file and serve amended defence and affidavit evidence

107    Mr Elvin alleged that, on 4 February 2020, the primary Judge made orders giving him only 10 days to draft, file and serve an amended defence, and 24 days to draft, file and serve affidavit evidence. I am not satisfied that this is the correct characterisation of the effect of her Honour’s orders.

108    The proceedings in ACD41/2018 were commenced by originating application filed by the FWO on 22 June 2018. On 25 October 2019, the primary Judge made Orders that, inter alia, required:

    the FWO to file and serve an amended statement of claim by 18 November 2019;

    Mr Elvin to file and serve an amended defence by 20 December 2019; and

    Mr Elvin to file and serve affidavit evidence by 14 February 2020.

109    The FWO filed its Amended Statement of Claim referable to these Orders on 21 November 2019.

110    Her Honour’s orders of 4 February 2020 extended the deadlines for Mr Elvin to file and serve his Amended Defence and Affidavit Evidence to 14 February 2020 and 28 February 2020 respectively. After her Honour made the orders of 4 February 2020, Mr Elvin had close to three months to prepare his amended defence (from 21 November 2019 to 14 February 2020) and more than three months’ time to prepare any affidavit evidence (from 21 November 2019 to 28 February 2020).

111    In any event, her Honour subsequently granted further extensions to allow Mr Elvin time to file and serve an amended defence and affidavit evidence by 17 March 2020 and 20 March 2020 respectively. Mr Elvin filed this material by their respective deadlines. In total, Mr Elvin had almost four months to prepare both his Amended Defence (from 21 November 2019 to 17 March 2020) and Affidavit Evidence (from 21 November 2019 to 20 March 2020).

112    In these circumstances, it is plainly not correct for Mr Elvin to contend that the trial Judge only gave him 10 days to file an Amended Defence and 14 days to file Affidavit Evidence. The trial Judge could not have displayed apprehended bias in the way contended by Mr Elvin because the factual basis on which Mr Elvin relied did not exist.

“Giving the impression” of anger and disapproval

113    In AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) 238 FCR 341, the Full Court considered the relevance of the verbal and body language of a decision-maker to the question of apprehended bias and said:

16.     The starting point to resolve the argument is the general proposition that, in the absence of a statutory provision to the contrary, a party to an administrative process is entitled to have a claim resolved by a decision-maker whose mind is open to persuasion: e.g., Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507. Gleeson CJ and Gummow J there relevantly observed:

“[71]     … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

[72]    … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion …”

17.     The “governing principle”, it has been said, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision-making process: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 to 345. Gleeson CJ, McHugh, Gummow and Hayne JJ expressed the general principle as follows:

“[6]    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”

18.    The facts and circumstances which may give rise to a reasonable apprehension of bias are many — ranging from an administrative decision-maker’s prior involvement (for example) in the formulation of a disciplinary complaint to public comments made by a Minister or other decision-maker later called upon to decide a matter upon which comment has already been made.

19.     Within the spectrum of possible arguments lie those cases where reliance is placed upon comments made by the decision-maker throughout the course of an administrative hearing.

20.     Thus, and by way of example, occasional displays of impatience and irritation, whether justified or not, may not amount to disqualifying bias: cf. VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at 126. Kenny J there cited with approval the following observations of Kirby J in Minister for Immigration and Multicultural Affairs;Ex parte AB (2000) 177 ALR 225 at 230:

“While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator …”

“Harsh tones” may not be sufficient: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [37] to [39]. Katzmann J there concluded that there was no “logical connection between the harshness of tone in a member’s questioning and an inability to bring an open mind to the resolution of the issues in a case, particularly where it is to be expected that the Tribunal will probe the witness’s answers to test the truth of the account being offered to it”. But “excessive judicial intervention”, especially where a party is unrepresented, may be sufficient: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 394 per Kirby P.

21.     Views may well differ as to whether a Tribunal member has “overstepped the mark” so as to found a reasonable apprehension that a claimant will not receive a fair hearing. In concluding that the Tribunal member had overstepped the mark in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [[2003] FCA 872; (2003) 131 FCR 102] at [82]], Kenny J said:

“[82]    The vice was not that the Member had an adverse opinion about the applicant's claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant's claim when the hearing commences: see s 425(1) to (2). The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim — that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.”

Her Honour continued:

“[83]    It is no answer, in this case, to say that the Member recollected herself at the end of the hearing, if (as I find) her conduct gave rise to a reasonable apprehension that she might have so closed her mind to the applicant's case that this might distort her judgment …”

See also SZRZK v Minister for Immigration and Border Protection [2014] FCA 69 at [27] per Robertson J.

22.     Such prior observations by Judges of this Court do not preclude, it is respectfully considered, a reasonable apprehension of bias being exposed even by an isolated statement made by a decision-maker or by an isolated exchange between a decision-maker and a claimant. It has thus been repeatedly acknowledged that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ.

(emphasis added)

114    Mr Elvin particularises three instances of “anger” by the primary Judge: at the case management hearing on 4 February 2020, in her Honour’s decision not to grant Mr Elvin leave to serve interrogatories, and on 10 December 2020.

115    First, I have reviewed the transcript of the case management hearing on 4 February 2020 in matter ACD41/2018, which is in the appeal book before this Court, and could not find any reference to Mr Elvin making an appearance at that hearing. In fact, the transcript shows that the primary Judge requested the Court Officer to call the matter outside the Court Room during that hearing, and no appearance was made by Mr Elvin. It is unclear how the primary Judge could have given Mr Elvin an impression of “anger” when Mr Elvin was not present in the hearing.

116    Second, the primary Judge’s reasons for not allowing Mr Elvin to serve interrogatories were published in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 3) [2020] FCA 1621 (No 3 Judgment). While Mr Elvin did not refer to specific passages in the No 3 Judgment, I infer that Mr Elvin took issue with her Honour’s use of phrases such as “misconceived”, “amounts to an abuse of process”, and “can fairly be described as vexatious” in describing Mr Elvin’s interlocutory application.

117    Notably, these remarks were made in the context of Mr Elvin’s interlocutory application being filed in the middle of the part-heard trial on liability, sought (in the view of the primary Judge) to fish for information which did not arise on the pleadings, including questions directed to matters only a witness could answer, and inviting substantive submissions. In these circumstances, I am satisfied that the primary Judge’s use of those phrases did not constitute expressions of anger and were rather a reasonable assessment of the relative strength of Mr Elvin’s interlocutory application.

118    Third, Mr Elvin complains of the primary Judge saying words to the effect of “well, that’s your misfortune, I’m afraid” in the process of Mr Elvin tendering documents on 10 December 2020. According to the transcript (ACD41/2018, 10 December 2020 pp 1319-20), the exchange between her Honour and Mr Elvin in relation to the document Mr Elvin sought to tender was as follows:

HER HONOUR: … Document 49 is the next one. Why do I need all of this information, they’re the calculations made by Deloitte. If I’ve got the totals, why do I need the breakup?

MR ELVIN: I’m sorry, is this document 49?

HER HONOUR: Yes. One of the documents within that zip file is already in evidence, that’s the minutes of the meeting on 18 March 2016.

MR ELVIN: So, in relation to the employee payout calculations, they may be relevant for your Honour to see - - -

HER HONOUR: Are you – are you going to be making any submissions based on these documents?

MR ELVIN: I believe we may – may be – it may be so.

HER HONOUR: So, you don’t know at this point in time what you’re going to say to me, is that what you’re saying to me?

MR ELVIN: Well, there’s a lot to do, like, to go over - - -

HER HONOUR: Well, you’re supposed to be addressing tomorrow.

MR ELVIN: Yes, your Honour. That’s why there’s a – there’s a hell of a lot to do, your Honour. I’ve got to go over the transcripts to find out the relevant points during cross-examination as well. But I believe so - - -

HER HONOUR: Well, I think the most expeditious course is that I admit that – the – subject to any objections on the relevance, and I admit the various calculations for the seven massage therapists, that doesn’t include Mr Durado, of course, subject to relevance. What about the other documents in that zip file? Well, I – I will also – is there any other reason? I don’t think there’s any other document that is relevant, is there? Well, there doesn’t seem to be any other document, Mr Elvin, that’s relevant, unless you can tell me otherwise.

MR ELVIN: ..... document 50?

HER HONOUR: The documents in 49.

MR ELVIN: Well, I would like to have the document in front of me, your Honour.

HER HONOUR: Well, that’s your misfortune, I’m afraid.

MR ELVIN: That’s fine.

HER HONOUR: Well, all you seek to tender are the employee letters request and the employee payout calculations. But within document 49 there is no document entitled “employee letters request”. Am I right about that, Ms Byrnes?

MS BYRNES: Yes, it doesn’t appear in my document 49.

HER HONOUR: All right. So, document 50, then. Sorry, I – I should have said the employee payout calculations for the seven massage therapists the subject of this proceeding that are in document 49 of file 4 of Mr Elvin’s tender bundle will be exhibit 2R20.

(emphasis added)

119    While it is possible that the primary Judge may have appeared somewhat curt, it is clear that her Honour’s remark, read in context, was intended to emphasise to Mr Elvin the rule of evidence that only relevant evidence is admissible before the Court.

120    Mr Elvin further complains that her Honour interrupted him “at least 17 times” throughout the trial by saying the words “no, no, no” in a serious manner “expressing disapproval and anger”. It should be noted that Mr Elvin took a numerical approach, by counting the number of times the primary Judge interrupted him with those words and did not make any submissions about the context surrounding these interactions.

121    In the absence of submissions to that effect, I do not propose to deal with each interruption in detail. I simply note, however, that adopting the approach taken by Mr Elvin, I have counted 14 interruptions of Mr Elvin with the words “no, no, no” by her Honour in 17 days of trial transcripts. I further note that, over the same trial, her Honour had interrupted Counsel for the FWO with the words “no, no, no” 11 times. In this respect her Honour appeared to adopt an even-handed approach in expressing concern about submissions and/or evidence of the respective parties.

122    Ultimately, I am not satisfied that the conduct particularised by Mr Elvin amounted to a display of anger by the trial Judge. In any event, even if the conduct amounted to a display of anger, I am not satisfied that any of the conduct would amount to apprehended bias. As the Full Court stated in AZAEY, occasional displays of impatience and irritation, whether justified or not, do not amount to disqualifying bias.

Costs Orders against Mr Elvin

123    Mr Elvin particularised two instances of the primary Judge ordering costs against him: on 16 March 2020, and in her Honour’s decision not to grant Mr Elvin leave to serve interrogatories.

124    As I have already noted, the primary Judge’s reasons for not allowing Mr Elvin to serve interrogatories were published in the No 3 Judgment. The Orders of the Court in that judgment were:

1.     The interlocutory application filed by the second respondent on 9 October 2020 be dismissed.

2.     Costs be reserved.

125    It is clear that costs were not ordered against Mr Elvin in the No 3 Judgment. A review of the Court’s Orders in ACD41/2018 suggests that no costs orders were made against Mr Elvin from the No 3 Judgment to the matter’s finalisation.

126    Referable to this issue, the trial Judge could not have displayed apprehended bias in the way contended by Mr Elvin because the factual basis on which Mr Elvin relied did not exist.

127    In contrast, the primary Judge did order costs against Mr Elvin on 16 March 2020 in the following terms:

…

9.     Pursuant to para 570(2)(b) of the Fair Work Act 2009 (Cth), the second respondent pay the applicant’s costs of, and incidental to, his interlocutory application filed on 5 March 2020 and the case management hearing on 4 February 2020.

…

128    Section 570 of the FW Act relevantly provides:

570 Costs only if proceedings instituted vexatiously etc.

(1)     A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)     the court is satisfied of both of the following:

(i)     the party unreasonably refused to participate in a matter before the FWC;

(ii)     the matter arose from the same facts as the proceedings.

129    It is important to consider the context surrounding the making of the costs order. Mr Elvin filed an interlocutory application on 5 March 2020 seeking, inter alia, that he be granted leave to file and serve an amended defence by 11 March 2020 and to file and serve evidence by 20 March 2020.

130    This interlocutory application of 5 March 2020 followed the case management hearing on 4 February 2020 whereby the primary Judge ordered that Mr Elvin file and serve an amended defence by 14 February 2020 and evidence by 28 February 2020. Mr Elvin did not file and serve his Amended Defence and evidence in accordance with these deadlines.

131    The orders of 4 February 2020 were, in substance, an amendment to the orders of 25 October 2019 whereby the primary Judge ordered that Mr Elvin file and serve an amended defence by 20 December 2019 and evidence by 14 February 2020. Mr Elvin did not file and serve his amended defence and evidence in accordance with these deadlines.

132    Plainly, neither the case management hearing on 4 February 2020 nor the interlocutory application of 5 March 2020 would have been necessary if Mr Elvin had complied with the orders of this Court of 25 October 2019. In these circumstances, the primary Judge was plainly entitled to find that it was an omission on Mr Elvin’s part that caused the FWO to incur the costs.

133    The primary Judge exercised her Honour’s power to order costs against Mr Elvin properly pursuant to s 570(2)(b) of the FW Act. Importantly, Mr Elvin did not seek leave to appeal the costs order of her Honour. Further, I am not satisfied that the ordering of costs against Mr Elvin on 16 March 2020 amounted to apprehended bias. Her Honour ordered costs of a limited and expressly defined part of the proceedings against Mr Elvin in the circumstances discussed and according to law. A fair-minded lay observer could not apprehend from that decision that her Honour would not bring an impartial mind to the resolution of the questions before the Court.

Strike-outs and objections to evidence

134    I have already found earlier in this judgment that Mr Elvin has not identified any legal error by the primary Judge in allowing strike-outs or upholding the FWO’s objections to Mr Elvin’s evidence.

135    Referable to the strike-outs and objections to evidence, Mr Elvin has not claimed anything beyond the fact that the primary Judge allowed them, in support of his claim of apprehended bias. Without more, the primary Judge could not have displayed apprehended bias by merely applying the law. It follows that the strike-outs and objections to evidence issues do not give rise to apprehended bias.

Jones v Dunkel

136    Mr Elvin’s submissions on this point relate to the alleged failure of the trial Judge to offer an interpreter for Mr Puerto or to explain to Mr Puerto the Jones v Dunkel inference.

137    I have already discussed, at length, the issue of the rule in Jones v Dunkel. As I have already found, an interpreter was made available by the Court to Mr Puerto for him to cross-examine witnesses in Tagalog (see transcript in ACD41/2018 22 October 2019 pp 110-111). Furthermore, Mr Puerto had accepted that Tagalog was his language (transcript in ACD41/2018 22 October 2019 p 111 lines 10-13).

138    It follows that, referable to the availability of an interpreter, the trial Judge could not have displayed apprehended bias in the way contended by Mr Elvin because the factual basis on which Mr Elvin relied did not exist.

139    Mr Elvin’s submissions regarding the trial Judge’s failure to explain Jones v Dunkel were different and must be dealt with separately. Prima facie there was an absence of specific guidance by the primary Judge to Mr Puerto on the Jones v Dunkel point. The question for the Court to now consider is whether a fair-minded lay observer might reasonably apprehend that the primary Judge might not bring an impartial mind to the resolution of the question the Judge was required to decide.

140    On the facts before me, I am not prepared to make a finding of apprehended bias. In circumstances where Mr Puerto was closely involved in the facts giving rise to the FWO’s claim, the significance of Mr Puerto’s evidence (or the lack thereof) should have been plain and obvious to all parties of the proceedings, including Mr Elvin who had been represented up to immediately before the trial.

141    In these circumstances, I do not consider that a fair-minded lay observer might reasonably apprehend that the primary Judge, by not giving a warning about the plain and obvious inferences that could be drawn, might not bring an impartial mind to the resolution of the issue before the Court.

Browne v Dunn

142    I have already found earlier in this judgment that Mr Elvin’s contentions in respect of the application by the primary Judge of the rule in Browne v Dunn are not substantiated. I do not accept that the primary Judge applied the rule in Browne v Dunn in her Honour’s judgment.

143    Referable to the Browne v Dunn point, the trial Judge could not have displayed apprehended bias in the way contended by Mr Elvin because the factual basis on which Mr Elvin relied did not exist.

Interruption during cross-examination

144    Mr Elvin’s submissions relating to this point can be summarised as that, by saying the words “I object”, the primary Judge gave the impression that she was “working with” the FWO’s lawyers against him. It is useful to contextualise her Honour’s words by refence to the full exchange, which took place while Mr Elvin was cross-examining a witness:

MR ELVIN: Ms Amacio, given the concerns I had and spoke to you about sleep, do you find it strange that I kept all staff up until 4 am?

HER HONOUR: I object.

MR SECK: I object.

HER HONOUR: Sorry.

MR ELVIN: Yes.

HER HONOUR: I reject the question.

MR ELVIN: Yes, she can’t – yes.

HER HONOUR: I reject the question.

MR ELVIN: Okay. Withdrawn, your Honour.

HER HONOUR: That’s the first time I’ve done that in 10 years, you know. Go ahead.

(transcript ACD41/2018 23 October 2019 p 228 lines 9-29; emphasis added)

145    From the transcript, it is plain that the primary Judge was making a ruling on an impermissible question asked by Mr Elvin. It appears that her Honour had mixed up the words “object” and “reject” inadvertently and apologised for doing so.

146    In these circumstances, I do not consider that a fair-minded lay observer might reasonably apprehend that the primary Judge, by a slip of tongue, might not bring an impartial mind to the resolution of the issue before the Court.

Not explaining the law

147    Mr Elvin submitted, in very broad and general terms, that the primary Judge displayed apprehended bias because her Honour:

    did not explain the law or the rules adequately; and

    did not ask Mr Elvin if he wished to consult a Registrar to get advice and information; yet

    repeatedly asked Mr Elvin to confirm that he understood technical issues relating to the law and the rules.

148    These submissions seemingly conflict with each other in that the first two submissions appear to be a complaint that the primary Judge did not attempt to assist Mr Elvin, but the third submission shows that her Honour did attempt to assist Mr Elvin.

149    In Von Risefer v Blue Cube Developments Pty Ltd [2024] FCAFC 12, the Full Court summarised the principles of the giving of advice to self-represented litigants as follows:

47.    The appellants have also advanced a generalised and unparticularised complaint that the primary judge failed to do as much as he should have done to assist them as self-represented parties. The respondent submits that this complaint is without foundation, and that reference to the transcript and to his Honour’s reasons demonstrates as much.

48.    It is axiomatic to observe that judges have an overriding duty to ensure a fair trial for all parties who are involved in a proceeding: Dietrich v R (1992) 177 CLR 292 at 298–300 and 309–311 (Mason CJ and McHugh J), 326–328 and 331 (Deane J), 353 (Toohey J), 363, 371–372 (Gaudron J). As is apparent from the observations of the Full Court in SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445 at 452–455 [37]–[44] (Robertson J, Allsop CJ agreeing at [47] and Mortimer J agreeing at [56]), the discharge of this duty may involve different considerations and difficulties where one or more of the litigants is unrepresented; see also Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445–446 [26]–[29] (Sackville, North and Kenny JJ); AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68 at [37]–[39] (Flick, Griffiths and Perry JJ).

49.    In SZRUR at 452–453 [37], Robertson J cited with approval the principles and considerations identified by the New South Wales Court of Appeal in Hamod v New South Wales [2011] NSWCA 375 at [309]–[316] (Beazley, Giles and Whealy JJA) concerning the courts’ duty to unrepresented litigants. It is sufficient to observe, as is well accepted, that the court is required to ensure that an unrepresented litigant does not suffer a disadvantage from exercising the right to be self-represented.

50.    However, the court’s duty is not solely to the unrepresented litigant. All parties must have a fair trial. There is no obligation on the judge to conduct the case on behalf of the unrepresented litigant, the touchstone at all times being that of fairness. Some forms of assistance, such as suggestions by the judge that an affidavit be filed, can often be appropriate: Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at 293 [45] (Rares J). The court may be required to take steps to explain its processes and procedures to a litigant in person to ensure that there is procedural fairness: SZVCP v Minister for Immigration & Border Protection [2016] FCAFC 24 at [38] (Kenny, Robertson and Griffiths JJ).

(emphasis added)

150    For the reasons I have already given in the context of the procedural fairness issue, I do not accept that the primary Judge failed to assist Mr Elvin as a self-represented litigant. Indeed, this finding is not inconsistent with Mr Elvin’s own submissions that the primary Judge made a suggestion to him at one point during the trial to read the Evidence Act 1995 (Cth).

151    In these circumstances, I am not satisfied that a fair-minded lay observer might reasonably apprehend that, by not assisting Mr Elvin to the extent he wanted, the primary Judge (who had no obligation to conduct Mr Elvin’s case for him) might not bring an impartial mind to the resolution of the issue before the Court.

Cautioning witnesses against self-incrimination

152    Mr Elvin submitted that the primary Judge displayed apprehended bias when her Honour cautioned one of the FWO’s witnesses in cross-examination against incriminating himself, but did not do the same when Mr Elvin was cross-examined.

153    Relevantly, the following passage from the transcript (ACD41/2018 25 October 2019 p 404 lines 24-34) shows the primary Judge giving the warning to the FWO’s witness:

MR ELVIN: Mr Durado, were you receiving Centrelink at that time?

THE WITNESS: I can’t remember.

MR ELVIN: Mr Durado, do you recall asking me to pay you cash in hand because you were getting Centrelink?

HER HONOUR: Well, I should warn you, Mr Durado, that you need not answer that question if you fear that it may incriminate you.

THE INTERPRETER: Yes, your Honour.

(emphasis added)

154    The following passage from the transcript (ACD41/2018 2 December 2020 pp 721-722) captures the interaction when Mr Elvin gave allegedly self-incriminating evidence:

MR SECK: Mr Elvin, I’m told that Ms Bantilan’s affidavit that you’re looking for is in – I’m not even sure which folder this – the one which is sitting on the perch there, right on the ledge - - -?---On the ledge.

…

If you look at clause 2.1, it says:

The ordinary hours of work for a full time employee would be an average of 38 hours per week in a fortnight or a four week period. Not more than 10 hours work are to be worked in any one day.

Do - - -?---Yes.

- - - you see that? Now, you agree that what you are agreeing to is that the employees would only work ordinary hours of 38 hours per week, correct?---Yes.

…

So you understood when you were giving this contract to the group of seven, you were telling them that they wouldn’t have to work on average more than 38 hours per week as part of their ordinary hours of work?---Yes. But I believe there’s some - - -

.....?--- - - - I don’t think this is the – is this from my tender bundle?

No, this is – this is the contract that you signed and gave Ms Bantilan all the other employees in the group of seven?---Okay. Yep, yep, yep.

Do you agree with me that the contract is conveying - - -?---Yes, the contract is completely wrong and everything is completely wrong in it. I never lied to the staff. I told them exactly the terms of the work. What I did was I just put this bodgy contract in just to get it done, just to get it over the line through immigration. And that’s how this all happened.

You said bodgy. Do you mean - - -?---Well, you know, the contract was just put in as to tick the boxes for immigration.

Okay?---All right. I explained exactly - - -

HER HONOUR: So does that mean you were trying to deceive the Department of Immigration?---Well, yes, your Honour.

MR SECK: The answer is yes?---Well - - -

HER HONOUR: Well, just a moment. I suppose I should warn you - - -

MR SECK: Yes.

HER HONOUR: - - - if you – you don’t have to answer the question if you think your answer may incriminate you?---I wasn’t trying to deceive. I just put in the – I just – as I said, I drafted all of these things really, really quickly because I had so many other things to do. It wasn’t about deceive, it was just, you know, it was just given that way. And I should have checked things, I should have done things properly, I should have went to a lawyer.

(emphasis added)

155    The critical difference between the two instances of questioning is that Mr Elvin was not initially asked to give incriminating information about himself. He volunteered that information.

156    Mr Durando, the FWO’s witness, was asked by Mr Elvin “do you recall asking me to pay you cash in hand because you were getting Centrelink?” That question, if answered in the affirmative, would tend to incriminate the witness and her Honour gave the witness a warning accordingly.

157    In contrast, Mr Elvin was asked “Do you agree with me that the contract is conveying…”, before Mr Elvin cut counsel off. Mr Elvin could have answered that question with a “yes” or a “no”, and in either case, Mr Elvin would not have revealed the potentially incriminating information that Mr Elvin did reveal. It was only because Mr Elvin decided to volunteer information beyond what was required to answer a yes/no question that the potentially incriminating information was revealed.

158    In my view, the primary Judge could not have been expected to anticipate Mr Elvin giving the answer that he in fact gave in response to that question. The primary Judge could not have been expected to give a warning against self-incrimination in those circumstances. Furthermore, the primary Judge did in fact give Mr Elvin a warning against self-incrimination later, when it became apparent that Mr Elvin had potentially incriminating information about himself.

159    In these circumstances, I am not satisfied that the primary Judge’s conduct in relation to giving warnings against self-incrimination gives rise to apprehended bias.

Witnesses crying and the Court record

160    Mr Elvin submitted that the primary Judge displayed apprehended bias by recording when the FWO’s witnesses cried in cross-examination, but not doing the same when Mr Elvin cried in cross-examination. On the material before me, I am not prepared to make a finding of apprehended bias.

161    The fact that a witness is crying on the stand is relevant to their demeanour, which in turn is potentially relevant to their credibility. For that reason, the primary Judge was plainly entitled to record the demeanour of the FWO’s witnesses.

162    However, non-verbal behaviour such crying is but a facet of a witness’s demeanour. Verbal behaviour, such as instances of shouting, cutting people off, and talking over other people, can and regularly do form part of the assessment of a witness’s demeanour.

163    Coming now to Mr Elvin’s demeanour, I am of the view that it was reasonable for the primary Judge to not record the fact that Mr Elvin might have been crying on the stand. Throughout the trial, Mr Elvin had displayed significant verbal behaviour relevant to his demeanour. It was open for the primary Judge to attach more weight to the verbal behaviour displayed by Mr Elvin than any non-verbal behaviour such as crying. As the verbal behaviour was automatically captured by the transcript, it was open for the primary Judge to not state Mr Elvin’s demeanour “for the record”.

164    I am not satisfied that a fair-minded lay observer might reasonably apprehend that the primary Judge, by not recording the fact that Mr Elvin cried in cross-examination, might not bring an impartial mind to the resolution of the issue before the Court. It was open to the primary Judge to prefer the verbal aspects of Mr Elvin’s demeanour over the non-verbal aspects.

Acceptance and non-acceptance of evidence

165    Mr Elvin submitted that the primary Judge displayed apprehended bias when her Honour “accepted all of the [FWO’s] Filipino witnesses’ evidence” yet “literally did not accept any of Mr Elvin’s evidence”. It appears that references to the primary Judge’s acceptance and non-acceptance of evidence are references to her Honour doing so in the Liability Judgment.

166    In his submissions, Mr Elvin gives an example of the trial Judge using his evidence “of a group of six other former employees making requests for assistance to the Respondent in 2019 that were all identical and all mirrored the requests for assistance that had been made in 2016 by seven former employees who were witnesses for the Respondent in the trial” against him. Presumably, this is a reference to [534] of the Liability Judgment.

167    Mr Elvin’s claim of apprehended bias on this point has no merit.

168    First, there is High Court authority that a Judge’s reasons for judgment cannot be used to ascertain apprehended bias. In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, the High Court said by majority that:

67.     As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

(emphasis added)

169    This passage in Michael Wilson was discussed in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76. In Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218, the Full Court of this Court discussed the implications of the various judgments in CNY17 as follows:

88.     We note that in CNY17, Kiefel CJ and Gageler J (in dissent on the primary issue) cast some doubt on the impermissibility of considering the reasons of a decision-maker in determining whether an allegation of apprehended bias is established, stating (at [20]) that “the totality of the circumstances includes the decision and the reasons that the [Tribunal] has given for the decision”. Edelman J (who was part of the majority on the central issue, but wrote separately) said (at [135]) that in some cases, it might be relevant to consider the reasons for decision in assessing apprehended bias:

Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker’s bias and using comments in the reasons for judgment by the decision maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.

89.     In contrast, Nettle and Gordon JJ endorsed paragraph [67] in Michael Wilson and said (at [69]) that:

The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later.

90.     The remarks of Kiefel CJ and Gageler and Edelman JJ in CNY17 do not overturn the decision in Michael Wilson which is authority of long-standing. In our view it would be contrary to that decision to treat the Tribunal’s reasons in the present case as confirming, enhancing or diminishing the existence of apprehended bias, and we have not done so…

(emphasis in original)

170    The principle stated in Michael Wilson, namely that a Judge’s reasons for judgment cannot be used to ascertain apprehended bias, remains applicable. See also CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; (2020) 277 FCR 201 at [47]. For that reason, Mr Elvin’s claim of apprehended bias in relation to this ground must fail because it relies on what was said in the Liability Judgment.

171    Second, even if (contrary to the principle explained in Michael Wilson) a Judge’s reasons for judgment can be used to ascertain apprehended bias, I would not be prepared to make a finding of apprehended bias on the facts before me.

172    The primary Judge was plainly entitled to accept or not accept evidence. Her Honour had set out, at length, cogent reasons for not accepting Mr Elvin’s evidence based on her Honour’s assessment of Mr Elvin’s credit (see, for example, Liability Judgment at [206]-[217]).

173    I am not satisfied that a fair-minded lay observer might reasonably apprehend that the primary Judge, by rejecting the evidence of Mr Elvin for the reasons her Honour gave, might not bring an impartial mind to the resolution of the issue before the Court.

174    Ground B of the appeal is not substantiated.

Ground D: actual bias

Submissions

175    Mr Elvin claimed that the primary Judge’s decision to grant the FWO leave to amend the FWO’s pleadings to include Skill Level 1 (otherwise referred to as HP Level 1) of the Health Award was affected by actual bias, in summary because:

    On the second to last day of the trial, during the FWO’s closing address, there was an open discussion between the primary Judge and counsel for the FWO whereby her Honour, in reference to the Health Award, said words to the effect of “it’s not level 2, so its level 1”. Her Honour subsequently indicated to counsel that the FWO had not sought to amend its pleadings.

    There was then a discussion between the primary Judge and counsel for the FWO on pp 875-877 of the transcript whereby her Honour “worked with the [FWO’s] lawyers to repair their case to [Mr Elvin’s] detriment” by “pre-determining the award categorisation [the FWO] should use”.

    Following the trial’s conclusion the FWO applied for leave to amend her pleadings, and although Mr Elvin opposed the application her Honour granted leave.

    Mr Elvin “apprehended bias” against him because the primary Judge wrote her reasons for granting the amendment as though the FWO had discovered a basis for pleading HP Level 1 (in the Health Award) when both her Honour and the FWO knew that the amendment was due to her Honour instructing the FWO to do so.

    Mr Elvin also “had the impression” that the primary Judge had pre-determined her decision that HP Level 1 of the Health Award was the correct categorisation.

    The Liability Judgment was not published until approximately 10 months later, and the primary Judge did not provide any reason for the delay.

Consideration

176    At the outset, I am not satisfied that the absence of explanation from the primary Judge for the 10-month delay in publishing the Liability Judgment has any relevance to the question of actual bias. The readily available and plausible explanation for the delay is the fact that Liability Judgment is 240 pages and 972 paragraphs in length, following a lengthy and complex trial.

177    Mr Elvin referred to pp 875-877 of the trial transcript in his submissions. Based on the transcripts in the appeal book before this Court, pp 875-877 are part of the transcript for day 10 of 15 of the liability hearing (4 December 2020) and record part of the cross-examination of Mrs Elvin.

178    It appears that Mr Elvin may in fact be referring to the following exchange which is located at pp 1340-1343 of the transcript (ACD41/2018 10 December 2020):

MR SECK: Mr Thomas’ affidavit, LRT60. It starts at page 3218 of the court book … If one reads that consistently with the health professional classification level 1, the word equivalent should be read as something which is deemed to be equivalent by the employer or any equivalent experience. So that gives it a coherent interpretation. So UG2, in our respectful submission, is the relevant paygrade for the massage therapist.

I should deal with the issue of the absence - - -

HER HONOUR: So UG2; how does this fit into 15.2?

MR SECK: So if your Honour - - -

HER HONOUR: Is that - it’s not level 2.

MR SECK: No. So it’s a paygrade. So if your Honour goes to pay point 1 - this is page 3232 of the court book.

HER HONOUR: Yes. But that’s - that’s for health professional level 1.

…

HER HONOUR: Yes. So they don’t - - -

MR SECK: So - - -

HER HONOUR: - - - fall within the level 2 - - -

MR SECK: No.

HER HONOUR: - - - so it’s level 1.

MR SECK: It’s level 1. Can I then deal with the issue or the fact that this classification hasn’t been pleaded? We - as your Honour heard from us, we’ve taken - we took a very conservative approach in identifying support services too. Part of the reason for that is that we didn’t have any evidence that Mr Elvin had deemed acceptable. The NKYR academy qualifications which the employees had. Mr Elvin made that concession.

HER HONOUR: Well, you could have sought that at the outset.

MR SECK: He - we made inquiries of Mr Elvin - and I can take your Honour to this - as to whether or not he accepted any qualifications and he said no. The evidence, obviously, emerged for the first time in cross-examination that deemed it acceptable. Obviously, whether or not he deemed it acceptable is only something within Mr Elvin’s knowledge. And he decided to plead the penalty privilege.

Your Honour has the task of working out the most appropriate classification, ultimately. And that, obviously, means looking into all classifications. And but - knowledge needs to be subject to the requirements of procedural fairness. We’ve identified in the submissions, we’ve put it to Mr Elvin in cross-examination the criterion for a health professional, in our respectful submission - at least in terms of level 1 - are clearly met when one looks at the uncontroversial evidence as to what Massage Therapists do, and placing them as a health professional within indicative jobs in schedule C.

…

In our respectful submission, given the way that the evidence has emerged, when necessarily one element of the claim had to be whether or not Mr Elvin, on behalf of the first respondent accepted the qualifications as being acceptable, it will be open - - -

HER HONOUR: Did you allege, in your - well, you didn’t allege in your statement of claim that he did.

MR SECK: No.

HER HONOUR: And that’s because you had no basis for doing so at that time.

MR SECK: We had no basis for doing so, and we took a conservative view.

HER HONOUR: But you did have a basis for doing so once you cross-examined him.

MR SECK: Yes.

HER HONOUR: But you haven’t sought to amend - - -

MR SECK: No.

HER HONOUR: - - - your pleading. Don’t you need to seek leave to amend the pleading?

MR SECK: We can seek leave - - -

HER HONOUR: The case law says that it - that on the assumption that your position is accurate, that the case was run on the basis, at least in the alternative, that these women were - women and one man were entry-level health professionals. It’s desirable to rectify the pleading.

MR SECK: The answer is yes, we need to regularise the pleadings to reflect that. I wanted to raise it with your Honour today just so that position was on the record; and we can obviously plead that to reflect how the proceeding has, in fact, been conducted. So we would seek the leave of the court to plead the health professional level 1 classification in the alternative to the support worker level 2 classification in the health professional - - -

HER HONOUR: Well, it’s now your primary submission, isn’t it?

MR SECK: Well, I wouldn’t put it as our primary submission.

HER HONOUR: All right.

MR SECK: Say it’s one of the appropriate classifications that your Honour could find.

HER HONOUR: All right. Well, I mean, if - you will have to prepare an amended statement of claim.

MR SECK: Of course.

HER HONOUR: I’m not going to entertain that application without seeing the look of it. And you can put on some short submissions that deal with that particular point. And I will give Mr Elvin the opportunity to put on some short submissions in response, after the oral hearing concludes.

(emphasis added)

179    Later there was a discussion between the primary Judge and Counsel for the FWO about whether the massage therapists could be considered under “support services level 2”. Mr Elvin specifically quoted this exchange to support his submission that the primary Judge had pre-determined the appropriate award categorisation:

MR SECK: So you can see cleaner for level 1. It’s – housekeeper, level 2. I’m not saying she’s a housekeeper, but jobs of that nature. Where it becomes more complicated – and this is where we say there is no bright line that divides health professionals from support workers – is when one looks at the technical and clinical streams. And your Honour can see that level 1, but level 2 perhaps highlights some of the grey area in this situation. If your Honour goes to page 3253, refers to instrument technician and personal care worker, grade 1. Can I just focus on those 2 for the moment and I can deal with the other ones. Personal care worker grade 1 suggests that there are services being provided by perhaps like a disability support worker at home or an employee in relation to dealing with their physical ailments or disabilities. That person is not only assisting the individual but might be taking care of that individual. So - - -

HER HONOUR: I’m not impressed by that.

MR SECK: The other point is that - - -

HER HONOUR: I think these massage therapists are either health professionals or they’re not covered by this Award. I don’t think that the support services level 2 or any other level is appropriate, at least as I sit here. Is there any basis in the evidence for why the ombudsman selected that level?

MR SECK: There’s no basis – well, let me just check this.

(transcript ACD41/2018 10 December 2020 pp 1344-1345, emphasis added)

180    The principles applicable to the question whether a Judge’s expression of views about the case before the Court during trial can amount to pre-judgment are settled. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, the High Court was addressing a question of apprehended bias when a majority of the Court made the following general observations:

13.     … At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(emphasis added)

181    In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, Kirby and Crennan JJ said:

112.    Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.

(emphasis added)

182    See also Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [34]; CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; (2020) 277 FCR 201 at [54]-[55]; Asden Developments Pty Ltd (In liq) v Dinoris [2017] FCAFC 117 at [50]; Zhai v Luo [2015] FCAFC 144 at [23].

183    There is no dispute that the primary Judge gave Mr Elvin an opportunity to file submissions in reply to the FWO’s application to amend their pleadings. That is supported by both the transcript above and Mr Elvin’s own submissions.

184    Ultimately, I find that the primary Judge’s decision to grant the FWO leave to amend the FWO’s pleadings was not affected by actual bias. Her Honour could not be said to have pre-determined the issue before the Court in circumstances where her Honour expressed tentative views with Counsel but clearly required both parties to put on submissions before her Honour was prepared to make a decision. Ground D of the appeal is not substantiated.

Grounds E and F: illogicality

185    Both grounds of appeal E and F against the Liability Judgment rely on principles of illogicality. In summary, Mr Elvin claimed that:

    The reasons of the primary Judge in finding that HP Level 1 of the Health Award was the correct award and categorisation were illogical and were not supported by the evidence (ground E); and

    The reasons of the primary Judge in finding that the FWO was not a creditor for the purposes of the DOCA were illogical and were not supported by the law (ground F).

186    Recently in EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155 the Full Court reiterated principles of illogicality in decision-making:

34.    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21, the Full Court summarised the principles relevant to illogical or irrational decision-making as follows (citations omitted):

[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: ... .

[34] The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: ... . It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. ... [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35] Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: ... , such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

See also Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [51]- [52].

187    Noting that a finding of illogicality in decision-making is not easily made – requiring satisfaction that the decision is so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could reach – I will examine each ground of appeal in turn.

Ground E

188    In respect of ground of appeal E, Mr Elvin contended, in summary, that:

    It was illogical for the primary Judge to rely on evidence given by Mr Elvin during cross-examination as a reason to find HP Level 1 of the Health Award was the correct award categorisation, because Mr Elvin’s evidence was not supported by the evidence of all the relevant employees.

    Some of the relevant employees did not have any qualifications and at least one did not have three years’ experience.

    Mr Elvin’s evidence was concerned with what he told the Department of Home Affairs when he was trying to get work visas for the relevant employees. Mr Elvin never used that information to assess the relevant employees’ suitability for employment with FTM.

    The Health Award contemplates qualifications deemed to be acceptable by the employer in the context of a new graduate seeking employment in the health industry. None of the relevant employees was a new graduate.

    No reasonable person hearing Mr Elvin’s evidence and also taking into account the evidence of the relevant employees could have interpreted the Health Award to conclude that Mr Elvin’s evidence alone was sufficient reason to find that HP Level 1 was correct.

189    The evidence of Mr Elvin on which the primary Judge based her findings concerning the application of the Health Award was summarised by her Honour as follows:

308.     The evidence adduced from Mr Elvin in cross-examination accords with the summary in Ms Thirukumar’s affidavit. Mr Elvin testified that the Massage Therapists had at least three years’ experience in the massage industry before coming to Australia (T651/24–26) and he understood that, for the purpose of acquiring a subclass 457 visa, at least three years’ relevant experience may substitute for the formal qualification of Australian Qualifications Framework (AQF) associate degree, advanced diploma or diploma (Australian and New Zealand Standard Classification of Occupations (ANZSCO) skill level 2) (T653–4). He also testified that he required the Massage Therapists to attend the NKYR Academy in the Philippines to obtain qualifications before they started work for FTM (T646/5–24); paid for them to obtain those qualifications (T651/11); and recognised the certification of the NKYR Academy as constituting qualifications as a massage therapist (T646/12–14; 698/25–26). He further testified that the Massage Therapists were trained in remedial massage (T640/23).

309.     Some of these matters were known to the Ombudsman before the originating application was filed. Internal advice given to the Ombudsman tendered by Mr Elvin (and marked exhibit 2R10) records that the Therapists were “overseas qualified massage therapists with 5+ years of previous experience”. It also shows that she was aware that they were sponsored under the subclass 457 visa as employees at ANZSCO classification 411611 and that the indicative skill level of this classification was an AQF associate degree, advanced diploma, diploma, or alternatively, at least three years of relevant experience.

310.     On the basis of this information the advice was that the Therapists were not only covered by the Health Award but that they fell within the classification of HP Level 1. The evidence does not disclose what the Ombudsman did with this advice. It is evident, however, that by the time Mr Wong was instructed to calculate the Therapists’ entitlements the Ombudsman must have decided that the classification was not apt because Mr Wong was told that they were all classified as SSE Level 2.

311.     The attachment to the email from Bradley Allen Love dated 12 September 2016, to which the internal advice did not refer, would likely have confused matters and may well have contributed to that decision.

312     The new information elicited in cross-examination was that Mr Elvin required the Massage Therapists to attend the NKYR Academy to obtain qualifications before they started work for FTM and that he recognised the certification of the NKYR Academy as constituting qualifications as a massage therapist. A qualification “deemed acceptable by the employer” is sufficient to place a health professional in the classification of HP Level 1. Armed with this information, which was inconsistent with the information provided by Mr Elvin through his solicitors, the Ombudsman could more confidently claim that the Therapists were properly classified as HP Level 1.

190    Her Honour found that FTM was covered by the Health Award because it was an employer in the health industry (see [361]) and identified the position of HP Level 1 as follows:

380.     Clause B.2.1 describes the position of HP Level 1, upon which the Ombudsman relied, thus:

Positions at level 1 are regarded as entry level health professionals and for initial years of experience.

This is the entry level for new graduates who meet the requirement to practise as a health professional (where appropriate in accordance with their professional association’s rules and be eligible for membership of their professional association) or such qualification as deemed acceptable by the employer. It is also the level for the early stages of the career of a health professional.

191    Her Honour continued:

382.    As I mentioned earlier, in cross-examination Mr Elvin testified that he directed the Massage Therapists to undergo training at the NKYR Academy in the Philippines; that he paid for the training; and that he recognised and accepted the qualifications obtained after they had completed the training. While only Ms Amacio, Mr Benting, Ms Ortega, and Ms Bantilan gave evidence that they held qualifications from the NKYR Academy, Mr Elvin testified that he understood that all of them had undertaken the course.

383.    It will be recalled that HP Level 1 employees at pay point 1 are classified as employees with a diploma or equivalent (cl 15.2). FTM informed the Department of Immigration and Citizenship that all its massage therapists had at least three years’ industry experience which was equivalent to a diploma. In cross-examination, Mr Elvin denied that he had made such a representation despite earlier conceding that he had. And he also denied that three years’ experience was equivalent to a diploma. But the documentary evidence speaks for itself. In its letter to the Department of 1 February 2013, FTM referred to the ANZSCO classifications and relied on the statement by ANZSCO that “at least three years relevant experience may substitute for the formal qualification of a AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)”. Plainly, FTM represented to the Department that the experience of the Therapists in the Philippines was equivalent to a diploma.

384.    For these reasons, I find that the Massage Therapists held qualifications which were deemed acceptable by FTM and, in any event, was the appropriate level for the Massage Therapists who were in the early stages of their careers as health professionals.

385.    The ANZSCO classification for “massage therapist” accords with the description of an HP Level 1 employee in the Health Award. ANZSCO defines massage therapist a person who “performs therapeutic massage and administers body treatments for health, fitness and remedial purposes”. The tasks include “massaging the soft tissues of the body, such as muscles, tendons and ligaments, to assist healing” and “administering treatments to promote relaxation, improve circulation and relieve muscle tension”. The indicative skill level is AQF associate degree, advanced diploma, diploma, or alternatively at least three years of relevant experience. This is consistent with the skill level of HP Level 1 employee. ANZSCO also lists several “specialisations” for massage therapists, including remedial masseur, shiatsu therapist and sports medicine masseur. These are consistent with the relevant “common health professionals” in Schedule C of the Health Award and inconsistent with the skill level and indicative roles of a SSE Level 2 employee.

386.    While ANZSCO has a separate classification for “health professionals”, it is apparent that this classification is different from the “health professionals” covered by the Health Award. ANZSCO defines health professionals as people who “develop health care programs and policies, conduct tests and diagnose and treat physical and physiological disorders...”. Health professionals are described as having a bachelor degree or higher, and occupying roles such as medical practitioners, midwives and nurses. As will be recalled, the Health Award is not intended to cover these occupations.

387.    It follows that at all relevant times the applicable classification for the employment of the Massage Therapists was HP Level 1.

192    In my view these findings were open to the primary Judge. It was not illogical or irrational of the primary Judge to rely on evidence of Mr Elvin given during cross-examination to find that the relevant employees were HP Level 1. Mr Elvin’s evidence was critical in identifying qualifications of the employees of FTM deemed acceptable by FTM. In any event it is also clear that it was not only evidence of Mr Elvin which was relevant – her Honour also had regard to evidence FTM had provided to the Department of Home Affairs.

193    Ground E of the appeal is not substantiated.

Ground F

194    Mr Elvin contended that the primary Judge erred in law in finding that the FWO was not a creditor for the purposes of the DOCA, and that accordingly her Honour’s findings to that effect were illogical.

195    The relevant findings of the primary Judge for the purposes of this appeal were as follows:

922.    As I mentioned earlier, the first complaint to the Ombudsman was not made until 15 December 2015, which was the day the administrators were appointed. The evidence given by Mr Thomas indicates that FTM was not in the Ombudsman’s sights before the complaints were made and no investigation into the complaints was begun until, at the earliest, late April 2016, after the DOCA was executed, and was not completed until June 2018, when FTM was not longer under administration.

…

924.    I cannot see how the Ombudsman could be a creditor of FTM — even a contingent creditor —when she had not even formulated a claim at the relevant time. While FTM then had an existing obligation to the Therapists (and other employees), it had no obligation to her. For the reasons given in Tomlinson, she was not then — or, for that matter, later — their agent. FTM was not indebted to the Ombudsman either at the time it went into administration or at the time of the making of the DOCA. Nor did FTM have an existing obligation to the Ombudsman out of which a liability might arise on the occurrence of a possible future event.

925.    It follows that the Ombudsman was not entitled to prove her claims in a winding up and therefore was not a creditor of FTM within the meaning of Pt 5.3A of the Corporations Act and the DOCA.

…

929.    The debts or claims that can be compromised by a deed of company arrangement are those that would be provable in a winding up: Lehman Brothers at [38] (French CJ, Gummow, Hayne and Kiefel JJ). The reference to “claims” in s 444D(1) is a reference only to claims which would be provable against the company in a winding up: City of Swan at [30], [87], [135]. It will be recalled that the claims covered by the DOCA are those existing or contingent on 15 December 2015.

930.    If, as I have found, the Ombudsman was not a creditor of FTM at the relevant time, then none of the claims made in the proceeding are affected by the DOCA…

…

Does the DOCA affect the claims against Elvin and Puerto?

950.    The answer to this question is no.

951.    The purpose of a deed of company arrangement is to maximise the chances of the company (or as much of its business as possible) continuing in existence or, if that is not possible, securing a better return for the company’s creditors and members than would result if the company were immediately wound up: see Corporations Act, s 435A.

952.    As the plurality explained in Lehman Brothers at [52]–[53], s 444D(1) limits the extent to which a deed of company arrangement binds creditors and the Corporations Act does not bind creditors beyond that limit. More particularly, the Act does not bind creditors to give up a claim against a person other than the subject company. Their Honours went on to observe at [55]:

Effect must be given in the application of s 444D(1) to the words “so far as concerns claims arising on or before the day specified in the deed”. Effect must be given to those words, recognising that the claims to which they refer are claims against the subject company.

196    Mr Elvin has not identified any error in this reasoning of the primary Judge.

197    For the reasons outlined below, I am not satisfied that the primary Judge’s reasoning in this regard was illogical, unreasonable, or a misinterpretation of the law as claimed by Mr Elvin.

198    First, concerning the proceedings of the FWO against Mr Elvin, any DOCA to which FTM was a party would not in any event prevent any actions against Mr Elvin specifically, including the proceedings which are the subject of this appeal. As French CJ, Gummow, Hayne and Kiefel JJ observed in Lehman Brothers Holdings Inc v City of Swan [2010] HCA 11; (2010) 240 CLR 509:

52.    But none of these observations confronts the critical observation that s 444D(1) limits the extent to which a deed of company arrangement binds creditors. Creditors are bound “so far as concerns claims” against the subject company that arose before a specified date. And it is s 444D(1) alone which makes a deed of company arrangement binding on creditors.

53.    Because creditors are bound under s 444D(1) only to the limited extent identified in that provision, the assent of some creditors (even a majority by number and value of those who vote) to giving up claims against another does not bind other creditors to do so. No creditor is bound to give up such claims because the Act does not bind them beyond the limit prescribed by s 444D(1). More particularly, the Act does not bind creditors to give up a claim against a person other than the subject company – here, Lehman Australia.

(emphasis added)

199    Indeed it is well settled that the insolvency of a principal does not preclude the Court from making findings and orders against persons who bear accessorial liability: see, for example, Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd [2005] FCA 1212 at [204]; Australian Building and Construction Commissioner v SWAT Building Systems Pty Ltd (In liq) [2020] FCCA 1360 at [9].

200    Second, s 444D of the Corporations Act provides:

(1) A deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i).

(emphasis added)

201    Paragraph 444A(4)(i) refers to:

(i) the day (not later than the day when the administration began) on or before which claims must have arisen if they are to be admissible under the deed.

202    In this case it is not in dispute that FTM first went into voluntary administration on 15 December 2015. That date was accordingly the relevant day for the purposes of ss 444A(4)(i) and 444D.

203    The relevant employees of FTM were plainly creditors of FTM whose claims arose prior to 15 December 2015. However, to the extent that the FWO had claims against FTM (or Mr Elvin) those claims were founded in complaints against FTM made to the FWO after 15 December 2015. Any claims of the FWO against FTM or Mr Elvin under the FW Act postdated that day, even if the claims related to events which occurred prior to 15 December 2015.

204    Third, and in event, any record of underpayments to the relevant employees as “contingent liability” arising prior to 15 December 2015 was separate from the statutory claims of the FWO under the FW Act which may have arisen on receipt of the complaints by those employees after 15 December 2015. The distinct nature of the FWO’s claims in a similar context was discussed by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507. As French CJ, Bell, Gageler and Keane JJ there observed in the context of that case:

44.    The Court of Appeal erred in concluding that the Fair Work Ombudsman was Mr Tomlinson's privy on the basis that, in the Federal Court proceeding, the Fair Work Ombudsman was enforcing Mr Tomlinson's entitlements “under or through”, or “on behalf of”, Mr Tomlinson. In truth, the Fair Work Ombudsman was acting pursuant to his statutory power to commence proceedings in a court “to enforce” the Workplace Relations Act and an award made under that Act. That power was not derived from Mr Tomlinson or his entitlements. The Fair Work Ombudsman was not acting pursuant to his distinct power “to represent” employees who are, or may become, a party to proceedings in a court. The orders for the payment of Mr Tomlinson's entitlements were made, not in satisfaction of a claim asserted on behalf of Mr Tomlinson by the Fair Work Ombudsman as his representative, but pursuant to the power of the court to make such an order, which power arose when the court found that employees had not been paid their entitlements.

45.    The statutory function conferred by the Fair Work Act on the Fair Work Ombudsman of commencing proceedings in a court to enforce terms of the Australian Fair Pay and Conditions Standard and of awards made under the Workplace Relations Act, as distinct from the statutory function of representing employees who are or may become parties to proceedings in a court, cannot be interpreted as requiring the Fair Work Ombudsman to consider legal interests of employees beyond the legal interests specifically protected by the enforcement action the Fair Work Ombudsman is authorised to undertake. Nor are those wider legal interests protected by the procedures which govern the exercise of power on the part of an eligible court.

46.    Performing that function and invoking those procedures, the Fair Work Ombudsman did not represent the legal interests of Mr Tomlinson, in the sense which gives rise to an estoppel, by seeking in the Federal Court orders that Ramsey pay Mr Tomlinson and others amounts which Ramsey had failed to pay in breach of applicable terms. The fact that Mr Tomlinson had complained to the Fair Work Ombudsman and the fact that he provided evidence in the proceeding make no difference to that conclusion. Counsel for Ramsey disavowed any suggestion that Mr Tomlinson in fact gave to the Fair Work Ombudsman some additional non-statutory authority to act as his agent. The Fair Work Ombudsman acted in the discharge of its own statutory responsibility.

(footnotes omitted, emphasis added)

205    The primary Judge’s reasons in this regard were not illogical, unreasonable, nor following misinterpretation of the law as claimed by Mr Elvin. Ground F of the appeal is not sustained.

Ground G: forensic choice of the FWO

206    Mr Benting was a relevant employee of FTM from 24 June 2012 until 8 February 2016 when he ended his employment with FTM. Throughout the Liability Judgment her Honour had regard to Mr Benting’s evidence.

207    In respect of the FWO’s claim that FTM contravened s 325 of the FW Act by requiring the relevant employees to refund a portion of their income when FTM was doing poorly, her Honour relevantly observed:

532.    In both her opening and closing submissions the Ombudsman claimed that FTM contravened s 325(1) by requiring each of the Massage Therapists to repay from their earnings $800 per fortnight to FTM for a period of time after they started work for FTM. Each of the Massage Therapists gave evidence to this effect. In every iteration her pleading, however, including in the draft second further amended statement of claim, the Ombudsman did not include an allegation that FTM had required Mr Benting to pay back money from his wages, limiting her claim to the six female Therapists, despite the evidence given by Mr Benting which was to the same effect. I was informed that this was a “forensic choice”, although I was not informed why the choice was made and it is not open to me to speculate. In these circumstances I consider that the Ombudsman should be held to her pleading. Had the position been otherwise I would likely have inferred that the omission of Mr Benting was inadvertent, dealt with the matter on its merits and invited the Ombudsman to amend her pleading, for the matter was not only captured by her opening submissions but Mr Elvin cross-examined Mr Benting on his evidence on this subject: see, for example, Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446; 50 ALJR 666 at 668 (Stephen, Mason and Jacobs JJ); Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ).

(emphasis added)

208    In circumstances where the FWO’s pleading concerning s 325 and the refund of income was limited to female employees (and did not include Mr Benting), her Honour concluded:

562.    This evidence tends to corroborate the accounts of the Massage Therapists that they were required to refund a portion of their income when the shop was doing poorly. In the light of this evidence, I accept the Ombudsman’s submission that it is no coincidence that the total amount repaid by each Massage Therapist over the period in question (approximately eight months) — $16,000 for Ms Isugan, Amacio and Bantilan and $14,400 for Ms Sarto, Ortega and Castaneda — is roughly the difference between $52,000 and $35,000.

563.    The obvious purpose of requiring these payments to be made in cash rather than complying with the contract was to avoid the detection of the authorities.

564.    I therefore find that FTM required Ms Isugan, Ms Amacio, Ms Bantilan, Ms Sarto, Ms Ortega and Ms Castaneda to spend $800 per fortnight of their wages to support its business by directing them to refund that amount during the periods in question. I also find that the requirement was unreasonable in the circumstances. The Massage Therapists had no genuine choice about the matter. They received no countervailing benefit, such as reduced hours or extended leave. It was also a breach of their contracts of employment. And it resulted in them being paid below Award wages. It was also unreasonable because it was a breach of FTM’s sponsorship obligations which required that it ensure that the earnings and conditions of the employees it sponsored were not less favourable than an Australian citizen would receive for performing equivalent work (see Migration Act 1958 (Cth), s 140H read with Migration Regulations 1994 (Cth), reg 2.79).

565.    It follows that FTM breached s 325(1) of the FW Act as alleged and therefore contravened s 44 in this respect as well.

209    Mr Elvin claimed that there was a foreseeable risk of a miscarriage of justice due to the FWO’s forensic choice not to claim compensation for cashbacks for Mr Benting, but to nonetheless rely on evidence from Mr Benting. In particular he claimed that the primary Judge should have pursued an explanation from the FWO’s lawyers as to the reason for that “forensic choice”, which was never explained. Mr Elvin claimed that it was reasonably foreseeable that there was a risk Mr Benting’s evidence was false, and that the primary Judge should have considered that prospect.

210    As the FWO submitted, a statutory regulator which has responsibility for investigating and seeking penalties for contraventions of the law has a broad discretion as to the manner of doing so, including determining which claims to enforce: see, for example, Smiles v Commissioner of Taxation [1992] FCA 208; (1992) 107 ALR 439 at [45]. It was not incumbent on the FWO to make a claim on behalf of Mr Benting in this regard. There are any number of reasons why the FWO may have made a forensic choice not to do so, including resource limitations in the FWO to prosecute particular cases.

211    Although the primary Judge expressed surprise at the FWO’s decision to plead a case in respect of s 325 which did not include Mr Benting, it was entirely open to her Honour to have regard to Mr Benting’s evidence. The primary Judge considered that Mr Benting’s evidence was credible, which was a finding open to her Honour.

212    The decision of the primary Judge, including her acceptance of Mr Benting’s evidence, does not reveal any miscarriage of justice. In my view this ground of appeal has no basis.

Ground H

213    In ground of appeal H Mr Elvin claims as follows (see p 30 of the Amended Notice of Appeal):

H.     IT WOULD BE UNSAFE TO RELY UPON THE CONCLUSIONS REACHED BY JUSTICE KATZMANN IN THE LIABILITY DECISION

(i)     I appeal against the conclusions of Justice Katzmann at paragraph 983 to 1000 of the Liability Decision on the ground that it would be inherently unsafe to rely upon those conclusions due to the issues I have raised. That is, there is a foreseeable risk that there may be a miscarriage of justice.

(ii)     Even if there is not a miscarriage of justice due to Justice Katzmann overlooking the Respondent relying upon what may be false evidence to prosecute me, the other grounds that support my appeal are serious and provide a basis to set aside the Liability Decision.

214    In his Amended Notice of Appeal Mr Elvin defines the “Liability Decision” as that given on 14 October 2021. There are no “paragraphs 983 to 1000” in that decision. Similarly, there are no such paragraphs in the Penalty Judgment.

215    To the extent that Mr Elvin relies on ground of appeal H by reference to “the issues I have raised”, I interpret that to mean the issues he raised in grounds of appeal A-G. I have found that there was no merit to those grounds. I am also satisfied that there was no “foreseeable risk that there may be a miscarriage of justice” in relation to the findings of her Honour in the Liability Judgment.

216    Ground H of the appeal is not substantiated.

Grounds of appeal: Penalty Judgment

217    Grounds of appeal I to M are in respect of the Penalty Judgment. These grounds commence in the following terms (see pp 30-37 of the Amended Notice of Appeal):

I.     Justice Katzmann’s declaration in paragraph 2 of the Penalty Decision that I was knowingly concerned and therefore involved in each of the contraventions set out in paragraph 1(a) to (j) and 1(m) to (q) was not supported by the evidence.

J.     Justice Katzmann’s declaration in paragraph 1(a) of the Penalty Decision that F&T contravened the FW Act by failing to pay the Massage Therapists as Health Professional Level 1 employees the minimum hourly rates of pay between 24 June 2012 and 16 June 2016 pursuant to the Health Award was not supported by the evidence and was factually incorrect.

K.     Justice Katzmann failed to take into account a relevant matter being the moratorium clause in the Deed of Company Arrangement that stopped the Massage Therapists from taking any steps to recover any debt or claim.

L.     Justice Katzmann unreasonably refused to make an order to provide me with the transcript of the penalty hearing 3 and 4 October 2023 causing me to be unable to include in my appeal the apprehended and actual bias I experienced during the penalty hearing.

M.     Based on I to L above it would be unsafe to rely upon the conclusions reached by Justice Katzmann in the Penalty Decision.

218    It is convenient to address these grounds of appeal separately.

Ground I: declaration not supporTed by evidence

219    Mr Elvin claimed that the primary Judge’s declaration in paragraph 2 of the Penalty Judgment, that Mr Elvin was knowingly concerned and therefore involved in each of the contraventions set out in paragraph 1(a) to (j) and 1(m) to (q), was not supported by the evidence and was factually incorrect. Mr Elvin ultimately argued that the contraventions of the FW Act referred to therein occurred between 24 June 2012 until 16 June 2016, a period during which Mr Elvin was not consistently in control of FTM.

220    Specifically, Mr Elvin outlined the following timeline of events:

    On 15 December 2015, he placed FTM into voluntary administration, and from that date he no longer had control of FTM.

    Between 15 December 2015 and 4 January 2016, the administrators were in complete control of FTM including the operation of its business.

    On 4 January 2016, he was licensed to manage the FTM business pursuant to an Operating Licence provided by the voluntary administrators. The Operating Licence expired on 4 April 2016.

    Between 4 April 2016 and 11 April 2016, the administrators were again in complete control of FTM including the operation of its business.

    On 11 April 2016, pursuant to the DOCA, Mr Elvin retired as the sole director and transferred his one share in FTM to Mr Ngo.

    From 11 April 2016 until 16 June 2016, Mr Ngo was in complete control of FTM and the operation of its business.

221    Accordingly, the primary Judge’s finding that Mr Elvin was knowingly concerned in contraventions of the FW Act between 24 June 2012 until 16 June 2016 was not supported by the evidence and was factually incorrect because:

    between 15 December 2015 and 11 April 2016, the voluntary administrators were responsible for the actions and omissions of FTM in relation to compliance with the FW Act; and

    between 11 April 2016 and 16 June 2016, Mr Ngo was the sole director and shareholder of FTM and responsible for the actions and omissions of FTM in relation to compliance with the FW Act.

222    It followed, in Mr Elvin’s submission, that the order in paragraph 4(b) of the Penalty Judgment that he pay pecuniary penalties in the sum of $150,140.00 was referable to a period of time including 15 December 2015 to 11 April 2016, and then 11 April 2016 to 16 June 2016, when Mr Elvin was not in control of FTM.

223    The principal findings of the primary Judge of accessorial liability on the part of Mr Elvin can be seen in the Liability Judgment from paragraph 782 onwards. In particular, her Honour found as follows:

    From 1 November 2010 until 11 April 2016, Mr Elvin was the sole director, secretary and shareholder of FTM. He was also its executive or managing director. At all relevant times it was he who controlled what the company did (at [787]).

    In an email dated 12 September 2016, through his then legal representatives, Mr Elvin admitted that he was responsible for each of the following tasks: making day to day business decisions; setting the operating hours of the business; recruiting or hiring employees; organising employees’ visas; providing for employees’ accommodation; writing employees’ employment contracts; deciding wage rates; deciding the hours employees were to work; setting times for employees’ meal and rest breaks; writing rosters for employees; paying wages; supervising employees at the shops; approving annual and personal leave; terminating employment; and arranging workers’ compensation insurance. Other duties, such as paying superannuation, creating and issuing group certificates, and creating and issuing pay slips, were said by Mr Elvin to be the responsibility of FTM’s bookkeeper, Ms Maria Cabrera, under his general supervision (at [788]).

    In his Amended Defence Mr Elvin made detailed admissions as to his knowledge (at [789]).

    Mr Elvin admitted his knowledge of the application of the FW Act and the NES, and that he prepared and signed the contracts of employments with the relevant employees (at [790]-[791]).

    In cross-examination Mr Elvin agreed that he made all the critical decisions associated with the business of FTM, that he had access to all information systems, and that he authorised payments to FTM employees each fortnight (at [792]). He also testified that he had responsibility for signing off on the payroll (at [793]).

    Mr Elvin was knowingly concerned in all of FTM’s contraventions of the:

•    relevant award(s) (at [796]);

•    NES (at [792]);

•    FW Act, specifically ss 125 (at [805]), 323(1) (at [808]), 535(1) (at [811]-[813]), 340(1) (at [821]-[823]), 351(1) (at [824]-[827]), and 343(1) (at [828]); and

•    reg 3.44(1) of the FW Regulations (at [811]-[813]).

224    Materially, her Honour observed in the Liability Judgment:

818.    On 4 January 2016 FTM, then “Foot & Thai Massage Pty Limited (Administrators Appointed)”, granted Mr Elvin a licence to operate and manage the business on certain terms and conditions. It is not clear when the licence was terminated, but it is clear that in June 2016 (and until the period of voluntary administration came to an end), Mr Elvin remained involved in the FTM business. In cross-examination he accepted the proposition that he was a consultant to the business at this time. In cross-examination, Mr Elvin claimed not to recall being responsible for responding to the notice to produce but accepted it was possible. Mr Thomas’s evidence, however, makes it plain that it was Mr Elvin who was responsible. Annexure LRT-16 to Mr Thomas’s affidavit reveals that on 3 June 2016 FWI Hurrell sent a copy of the notice to produce to Mr Elvin at his personal email address (colin.elvin@gmail.com) after receiving a call from him that morning. In that email she confirmed that the response was due by 5 pm on 16 June 2016 and informed Mr Elvin that he could send his response in sections if that were easier for him. A file note made by FWI Hurrell of a telephone conversation with Mr Elvin at 4.17 pm on 16 June, annexed to Mr Thomas’s affidavit at LRT-17, shows that Mr Elvin was “currently sending NTP response in about 40 emails”. It is apparent from this information that Mr Elvin at least assumed the responsibility for responding to the notice to produce. Indeed, this evidence indicates that he responded personally.

225    In the Penalty Judgment her Honour relevantly said:

16.    Third, Mr Elvin took issue with the statement I made at LJ [787] that “[a]t all relevant times it was he who controlled what the company did”. He submitted that he had no control of FTM after 15 December 2015 when administrators were appointed. Rather, he contended, the administrators were in fact and law in control of what the company did from 15 December 2015 to 11 April 2016. I accept that what I said at LJ [787] was an overstatement in that the administrators were in control of the company in that period. A more accurate statement would have been that Mr Elvin was in complete control of the company for all but 16 weeks of the four-year contravention period. It is not true, however, that Mr Elvin had no control over the company during that 16-week period. On 4 January 2016 Mr Elvin entered into an agreement with the company and the administrators, called an “operating licence”, under which he would “operate and manage” the FTM business on certain terms. The licence was in place on and from 4 January 2016 until 4 April 2016.

17.    Clause 2.6 of the licence agreement required, amongst other things, that Mr Elvin, as the licensee, “at [his] own cost and risk and without limitation, conduct and manage the Business:

(i) in the ordinary course;

(ii) in a professional, diligent, businesslike and efficient manner to high standard expected of a business operator and manager of business such as the Business;

(iii) by employing its own employees;

...”

“Business” was defined in cl 1.1 to mean “the massage services and other businesses operated by [FTM] but exclud[ing] all cash in hand, cash at bank; debtors, goodwill and work in progress”.

226    Mr Elvin’s complaint was, in summary, that the primary Judge’s calculation of penalties payable by him as an accessory was in error, because the penalties were calculated by her Honour with reference to periods during which either FTM was under the control of the administrators, or when Mr Ngo had assumed the role of director.

227    That complaint has a superficial attraction, which fades on closer scrutiny of the material before the primary Judge. In particular:

    Paragraph 8 of the FWO’s Second Further Amended Statement of Claim specifically pleaded the dates of employment of the relevant employees by FTM and limited the FWO’s claims almost entirely to the period up until 11 February 2016.

    The primary Judge found that the contraventions which were the subject of the proceedings occurred almost entirely before 11 February 2016, after which time all the relevant employees ceased to be employed by FTM. As her Honour noted in the Penalty Judgment:

4.    FTM was the owner and operator of a therapeutic massage business in Canberra, which traded under the name “foot&thai”. The seven employees covered by the liability judgment were recruited from the Philippines and employed by FTM as massage therapists. Four of them (Irene Amacio, Crisanta Bantilan, Ruben Benting and Delo Be Isugan) were employed from 24 June 2012 (the first group). Ms Isugan was employed until 26 October 2015, Mr Benting until 8 February 2016, Ms Amacio until 10 February 2016, and Ms Bantilan until 11 February 2016. The remaining three (Janice Castaneda (formerly Mapute), Mayet Ortega and Cyrene Sarto) started on 15 April 2013 (the second group). Ms Sarto finished on 12 January 2016, Ms Ortega and Ms Castaneda the following day. From now on, I will refer to them, as I did in the liability judgment, as the Massage Therapists.

It is not in dispute that, notwithstanding administrators being appointed to FTM for short periods, Mr Elvin was the sole director, secretary and shareholder of FTM during this time.

    Paragraph 1 of the orders of the Court of 10 May 2024 (as set out in the Penalty Judgment) included the statement that FTM’s contraventions occurred “during various periods” from 24 June 2012 until 16 June 2016. In the Penalty Judgment her Honour said:

149.    In the present case, the contraventions occurred during the period from 24 June 2012 to 16 June 2016 inclusive. At the beginning of that period the value of a penalty unit was $110, from 28 December 2012 it increased to $170 and on 31 July 2015 it rose to $180. Most of the contraventions occurred in the period between 24 June 2012 and 11 February 2016 inclusive. In circumstances such as these, the higher penalty applies for the entire contravention period but it is appropriate for the Court to have regard to the fact that a lower penalty unit value applied for part of the period…

(emphasis added)

    Mr Elvin has not challenged that finding.

    The primary Judge at [16] of the Penalty Judgment recognised that Mr Elvin was in complete control of FTM for all but 16 weeks of the four year contravention period.

    To the extent that Mr Ngo was the sole director and shareholder of FTM between 11 April 2016 and 16 June 2016, underpayments of the relevant employees would plainly not have accrued, as all the relevant employees had left FTM by 11 April 2016. The only reference by the primary Judge to a date of contravention after 11 February 2016 was in relation to the FWO’s pleading that, in contravention of reg 3.44(6) of the FW Regulations, FTM made use of false or misleading records when it produced them to Fair Work Investigator Lara Hurrell on 16 June 2016 (in response to a notice to produce).

    In any event, and notwithstanding Mr Ngo assuming directorship of FTM on or about 11 April 2016, the primary Judge addressed Mr Elvin’s continuing involvement in the FTM business after 11 April 2016 and until 16 June 2016 (in particular by reference to the false records contravention) in the Liability Judgment as follows:

818.    On 4 January 2016 FTM, then “Foot & Thai Massage Pty Limited (Administrators Appointed)”, granted Mr Elvin a licence to operate and manage the business on certain terms and conditions. It is not clear when the licence was terminated, but it is clear that in June 2016 (and until the period of voluntary administration came to an end), Mr Elvin remained involved in the FTM business. In cross-examination he accepted the proposition that he was a consultant to the business at this time. In cross-examination, Mr Elvin claimed not to recall being responsible for responding to the notice to produce but accepted it was possible. Mr Thomas’s evidence, however, makes it plain that it was Mr Elvin who was responsible. Annexure LRT-16 to Mr Thomas’s affidavit reveals that on 3 June 2016 FWI Hurrell sent a copy of the notice to produce to Mr Elvin at his personal email address (colin.elvin@gmail.com) after receiving a call from him that morning. In that email she confirmed that the response was due by 5 pm on 16 June 2016 and informed Mr Elvin that he could send his response in sections if that were easier for him. A file note made by FWI Hurrell of a telephone conversation with Mr Elvin at 4.17 pm on 16 June, annexed to Mr Thomas’s affidavit at LRT-17, shows that Mr Elvin was “currently sending NTP response in about 40 emails”. It is apparent from this information that Mr Elvin at least assumed the responsibility for responding to the notice to produce. Indeed, this evidence indicates that he responded personally.

819.    It follows that he was knowingly involved in the contravention of reg 3.44(6).

    The finding of the primary Judge that Mr Elvin remained a consultant of FTM, and to that extent remained involved in the affairs of FTM, up until 16 June 2016 is not challenged.

    The appointment of voluntary administrators was plainly taken into account by the primary Judge in considering whether Mr Elvin had involvement in the FTM business during the periods that the administrators were managing the FTM business. As stated in her Honour’s reasons, paragraph 8 of the FWO’s Second Further Amended Statement of Claim specifically pleaded the dates of employment of the relevant employees. However, as her Honour noted, there was evidence that, notwithstanding the appointment of the administrators, Mr Elvin continued to have involvement in the business of FTM, including pursuant to an “Operating Licence Deed” to which Mr Elvin and the administrators were parties (see Liability Judgment at [237]). As her Honour noted in the Penalty Judgment at [17], the Operating Licence Deed required Mr Elvin, as the licensee, at his own cost and risk and without limitation, to conduct and manage the business of FTM, notwithstanding the appointment of the administrators.

228    The evidence supports the findings of the primary Judge that Mr Elvin was involved in the business of FTM between 24 June 2012 and 16 June 2016. Ground I of the appeal is therefore not substantiated.

Ground J: failure to pay the relevant employees between 24 June 2012 and 16 June 2016

229    For the same reasons as just stated, the evidence supports the order of the primary Judge in paragraph 1(a) of the Penalty Judgment. The case as pleaded was plainly confined to the periods of time that the relevant employees were actually employed by FTM, and the underpayments as found by her Honour were similarly confined.

230    Ground J of the appeal is not substantiated.

Ground K: the relevant employees prevented from recovering underpayments

231    For the reasons I explained earlier in considering ground of appeal F, the proceedings were brought by the FWO after the commencement of the administration of FTM under Part 5.3A of the Corporations Act, in the capacity of a statutory regulator under the FW Act. The FWO was not prevented by the DOCA from doing so.

232    Accordingly, ground K of the appeal is not substantiated.

Ground L: availability of transcript

233    Mr Elvin claimed that the primary Judge unreasonably refused an order to provide him with the transcript of the penalty hearing of 3 and 4 October 2023, causing him to be unable to include in his appeal the apprehended and actual bias he claimed to experience during the penalty hearing. The primary Judge addressed this issue in the Penalty Judgment as follows:

248.    At the conclusion of the hearing, Mr Elvin asked the Court for an order that the Ombudsman provide him with, or that he otherwise be given access to, a copy of the transcript of the penalty hearing and of the hearing of the Ombudsman’s interlocutory application on 28 September 2023.

249.    The Court’s policy is that such orders will only be made where:

1.    The Court is satisfied that, by reason of the litigant’s circumstances or any other factor, the litigant cannot reasonably be expected to pay the commercial price for a copy of the transcript…; and

2.    The Court is satisfied that it is in the interests of the administration of justice that the litigant be provided with an electronic copy of the transcript.

250.    Mr Elvin proffered no evidence as to his circumstances. Given my views on his credibility, I was not prepared to accept that he was unable to afford to pay the commercial rate for a transcript based purely on his assertion. Consequently, I was not satisfied that he could not reasonably be expected to pay the commercial price for a copy of the transcript.

251.    Mr Elvin’s stated purpose for seeking the transcripts was that he would “be needing them for the appeal”. If Mr Elvin decides to appeal from the orders, it is open to him to renew his application.

234    Parties are not, as a matter of course, provided with a copy of the transcript of a hearing in the Court. Whether a party is provided with a courtesy copy is at the discretion of the Court. In this case, her Honour explained why she was not prepared to order that a courtesy copy of the relevant transcript be provided to Mr Elvin. No error appears from this exercise of discretion, such that this Court should interfere: House v The King [1936] HCA 40; (1936) 55 CLR 499.

235    Ground L of the appeal is not substantiated.

Ground M

236    In ground of appeal M, Mr Elvin claimed that, based on grounds of appeal I to L, it would be unsafe to rely upon the conclusions reached by the primary Judge in the Penalty Judgment.

237    In circumstances where I am satisfied that there is no merit to grounds of appeal I to L, ground of appeal M is not substantiated.

Amended cross-appeal

238    As I noted earlier in this judgment, the Amended Notice of Cross-Appeal is dependent on a finding by the Full Court that the primary Judge erred at [387] of the Liability Judgment. I am satisfied that no appellable error in the decision of the primary Judge has been demonstrated, including in respect of the primary Judge’s finding at [387] that the applicable classification for the employment of the relevant employees was HP Level 1 of the Health Award. In these circumstances, the Amended Notice of Cross-Appeal has no utility and should be dismissed.

Conclusion

239    The appropriate orders are that both the Amended Notice of Appeal lodged by Mr Elvin on 5 July 2024, and the Amended Notice of Cross-Appeal filed by the FWO on 19 July 2024 be dismissed.

Associate:

Dated:    21 July 2026

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

240    Subject to the five matters referred to below, I agree with the conclusions of Collier J and with the reasons given by her Honour.

241    First, in relation to Mr Elvin’s contention that he was denied procedural fairness because the primary judge failed to explain the consequences of granting leave to proceed against Foot & Thai Massage Pty Ltd (FTM), I agree with the conclusion of Collier J that this did not amount to a denial of procedural fairness, for the reasons expressed by Collier J, and for the additional reasons explained at [246]-[250] below.

242    Secondly, in relation to Mr Elvin’s contention that he was denied procedural fairness because of the primary judge’s reference to the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn), I agree with Collier J’s conclusion that this did not involve a denial of procedural fairness, for the reasons expressed by Collier J and for the brief additional reasons which are set out at [251]-[255] below.

243    Thirdly, I disagree with the conclusion that Collier J has reached in relation to Mr Elvin’s contention that he was denied procedural fairness because of the primary judge’s failure to explain the entitlement of Mr Elvin to call Mr Puerto as a witness in Mr Elvin’s case, the effect of Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel), and the potential for an inference adverse to Mr Elvin’s case to be drawn from the failure of Mr Puerto to give evidence. For the reasons explained at [256]-[287] below, I would allow Mr Elvin’s appeal on ground A, on the basis that the primary judge’s decision was affected by a denial of procedural fairness in this respect. I agree with the conclusions of Vandongen J about the extent to which this denial of procedural fairness could possibly have affected the primary judge’s findings as to Mr Elvin’s involvement in each of FTM’s contraventions of the Fair Work Act 2009 (Cth) (FW Act), and I agree with the orders proposed by Vandongen J.

244    Fourthly, in relation to ground C of Mr Elvin’s appeal, I agree with the further reasons given by Vandongen J (at [296]-[310] of his Honour’s reasons), in addition to the reasons of Collier J.

245    Fifthly, in relation to ground E of Mr Elvin’s appeal, I agree with Vandongen J that (as explained at [311]-[312] of his Honour’s reasons), although that ground of appeal was expressed in terms that refer to “illogicality”, it is appropriate to address the ground on the basis that Mr Elvin’s essential complaint is that the primary judge was wrong to hold that the massage therapists the subject of the proceeding (Massage Therapists) were properly classified as employees in the classification “Health Professional – Level 1” (HP Level 1) under the Health Professionals and Support Services Award 2010 (Health Award). I agree with the reasons given by Vandongen J at [311]-[320] for rejecting ground E.

Consideration of particular aspects of the claim of denial of procedural fairness

Alleged denial of procedural fairness due to Mr Elvin’s not understanding the implications of the grant of leave to proceed against FTM

246    Mr Elvin contends that he was denied procedural fairness because he did not understand the implications of the grant of leave to the Fair Work Ombudsman (FWO) to proceed against FTM, notwithstanding that it had been placed into liquidation. The circumstances in which the primary judge made the order permitting the FWO to proceed against FTM are explained at [35]-[38] of Collier J’s reasons.

247    Mr Elvin’s submissions on this point, as I understand them, proceed from the premise that he could only have been held liable for his involvement in contraventions of the FW Act which were committed by FTM, if FTM was itself a party to the proceeding and was held to have committed the primary contraventions. That assumed premise is incorrect.

248    The true position is that Mr Elvin could be held liable for contraventions of the FW Act committed by FTM, providing the facts necessary to establish the primary contraventions, as well as the facts establishing Mr Elvin’s knowing involvement in those contraventions, were proven in the proceeding against Mr Elvin. That is, the power of the Court to declare Mr Elvin’s liability for his involvement in FTM’s contraventions depended on proof, in the case against him, of the factual occurrence of those contraventions by FTM. It was not necessary that FTM be a party to the proceeding in which findings of contraventions by it were made for the purpose of determining Mr Elvin’s liability nor that the Court make any order against FTM: cf Cassaniti v Ball [2022] NSWCA 161; (2022) 109 NSWLR 348 at 378 [118].

249    The primary judge was correct to note, in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) [2019] FCA 1601 at [41], that “the [FWO] would be free to proceed against the other respondents [ie, Mr Elvin and Mr Puerto]” but that “in order to obtain relief from them, she first has to prove that FTM contravened the FW Act as alleged”. In that judgment, her Honour did not hold that leave to proceed against FTM was a precondition to the making of a finding that FTM contravened the FW Act for the purpose of considering whether Mr Elvin was involved in FTM’s contraventions, as Mr Elvin appears to have assumed. Rather, her Honour identified (and, it may be inferred, accepted) the FWO’s submission that FTM should escape liability by reason of its having been placed into voluntary liquidation.

250    It follows that Mr Elvin was not disadvantaged by the primary judge’s decision not to grant leave to the FWO to proceed against FTM. There was no denial of procedural fairness as a result of anything the primary judge said or omitted to say, about the consequences of the grant of leave to proceed against FTM.

Alleged denial of procedural fairness due to reliance on the rule in Browne v Dunn

251    As the reasons of Collier J explain, on the appeal, Mr Elvin submitted that the primary judge had told him that “we take it that you say that you’re innocent” and “we’re not going to use the Browne v Dunn”. On 8 December 2020, in the course of oral closing submissions, in answer to a question from the primary judge in connection with the evidence of Mr Benting, counsel for the FWO explained the stance that the FWO was taking in respect of compliance with the rule in Browne v Dunn:

No. We’re not taking any Browne v Dunn points, your Honour, given that affidavits have been filed in these proceedings and both parties have had the opportunity to address those allegations. So certainly, it’s not going to be a feature of our case that because Mr Elvin has not covered particular topics … with a particular witness in cross-examination that your Honour should draw an adverse inference that the evidence wouldn’t have assisted. What we would say, however, is that that’s – it’s only relation to matters which Mr Elvin, in fact, has addressed in his material. So - - -

252    I agree with Collier J that, on a fair reading of the primary judge’s reasons, the primary judge determined the issue of whether the Massage Therapists conspired to give false evidence about the requirement allegedly imposed by Mr Elvin, to make repayments of around $800 per fortnight to FTM, only on the basis of her assessment of the evidence and not in reliance on Mr Elvin’s non-compliance with the rule in Browne v Dunn.

253    That is evident from the following statement, made by the primary judge at [553] of Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 (Liability Judgment), immediately following her reference to Browne v Dunn:

In any case, while this was a theoretical possibility, having regard to the evidence that was given and the inferences that are open from the unexplained absence of evidence from Mr Puerto and the other massage therapists, I am persuaded that the reason the Therapists’ evidence was consistent on this and other questions was that they were telling the truth.

(Emphasis added.)

254    My interpretation of this statement is consistent with the fact that the primary judge then proceeded to set out extensive reasons (at [554]-[564] of the Liability Judgment), based on the evidence, in support of her Honour’s finding that the Massage Therapists did not conspire to give false evidence. The reasons given by the primary judge based on the evidence amply justified the conclusion that her Honour reached, without any need to treat Mr Elvin’s failure to put the conspiracy to the witnesses in cross-examination as strengthening that conclusion.

255    The issue of whether the Massage Therapists conspired to give false evidence about the repayment of money was the only issue in connection with which the primary judge mentioned the rule in Browne v Dunn, and it does not appear to have influenced her Honour’s reasons in relation to other matters addressed in the Liability Judgment. That is likely because her Honour proceeded on the basis explained by the FWO in closing and outlined to Mr Elvin at the trial – namely, that strict insistence on compliance with the rule in Browne v Dunn would not be required in relation to evidence given about contraventions of the FW Act that was inconsistent with denials of wrongdoing that were addressed in Mr Elvin’s affidavit evidence.

Alleged denial of procedural fairness due to absence of explanation of the effect of Jones v Dunkel and the potential for inferences to be drawn if witnesses were not called

256    Mr Puerto did not give evidence. Having regard to the facts that Mr Puerto was clearly available and did not testify, was a party to the proceeding, and was “personally involved in many of the critical events”, the primary judge considered it appropriate to draw an inference “that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness”. Her Honour noted (at [232] of the Liability Judgment) that, where the absent witness is a party, “considerable importance may well attach to the inference”. It is evident that the primary judge attached considerable importance to the fact that Mr Puerto did not give evidence, and that this influenced her reasoning process in the way that her Honour identified.

257    It has been recognised in several decisions that procedural fairness may require that, before a court draws an inference of the kind recognised in Jones v Dunkel against a party who is a litigant in person, it may be necessary to draw their attention to the principle and to explain the nature of the inference that could be drawn if they elect not to give evidence: see, eg, Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283; [2014] VSCA 193 at 302-3 [99]-[106] (Osborn JA), 305 [119] (Whelan JA), 305-7 [121]-[129] (Beach JA); Wei v Yu [2015] VSC 726 at [27]-[34]; Comaz (Aust) Pty Ltd v Commissioner of State Revenue (2015) 101 ATR 339; [2015] VSC 294 (Comaz) at 356-8 [42]-[47], 361-2 [52]-[54].

258    Procedural fairness will ordinarily require that an inference of the kind referred to in Jones v Dunkel not be drawn against a litigant in person unless the potential consequence of not giving evidence, or of not calling another person as a witness, has been pointed out to them. In order to be effective, the explanation of the principle must be given at a point in the trial before the party has closed its evidential case: Comaz at 361 [52].

259    In the present matter, the drawing of an inference of the kind contemplated by Jones v Dunkel was complicated by the fact that the FWO was proceeding against three respondents: FTM, Mr Elvin and Mr Puerto. Had Mr Puerto been called to give evidence, his evidence would naturally have been expected to bear on facts which were relevant to the allegations against FTM and Mr Elvin. Indeed, that is the basis on which the primary judge attached significance to the failure to call Mr Puerto in the case against Mr Elvin. This complication may not necessarily have meant that no inference could be drawn against Mr Elvin from his failure to call Mr Puerto to give evidence, but it certainly made it all the more important that the potential for such an inference be explained to Mr Elvin, if that was to be done.

260    Although Mr Elvin was active during the trial, and was obviously attempting to understand what was happening, and to defend himself against the allegations made by the FWO, I do not accept that he would have understood the principle derived from Jones v Dunkel without assistance. The nature of the inference which the primary judge drew from the failure to call Mr Puerto is relatively nuanced. The existence of the principle in Jones v Dunkel and the availability of that inference would not necessarily be apparent to any litigant in person. Its application in relation to the failure of Mr Elvin to call another person as a witness, as opposed to a failure to give evidence himself, would be even less likely to be appreciated. That is especially so in relation to a failure to call Mr Puerto as a witness, since he had himself been involved in the trial and was a separate party to the proceeding.

261    The possible application of the principle in Jones v Dunkel was raised by the primary judge in the course of closing submissions by counsel for the FWO. Relevant passages are set out in the reasons of Collier J at [65]-[66]. Mr Elvin was not informed during the trial, prior to the close of his case, that, if he did not call a particular witness whom he might have been expected to call, an inference might be drawn to the effect that the evidence which that witness might have given, had they been called, would not have assisted Mr Elvin’s case.

262    There is nothing in the way Mr Elvin conducted the trial to suggest that he was aware of the principle in Jones v Dunkel or its potential application, particularly in relation to Mr Elvin’s failure to call Mr Puerto. Nor was the Full Court taken to anything in the transcript of the trial that would suggest that Mr Elvin was even aware that it was open to him to call Mr Puerto as a witness in Mr Elvin’s case.

263    In my view, in the circumstances of this case, if an inference was to be drawn from the fact that Mr Puerto did not give evidence (as in fact occurred), procedural fairness to Mr Elvin required that he be informed that, even if Mr Puerto elected not to give evidence in his own case, it was nevertheless open to Mr Elvin to call Mr Puerto as a witness in Mr Elvin’s case, and that Mr Elvin’s failure to do so may support an inference that nothing which Mr Puerto could have said would have assisted Mr Elvin’s case. Procedural fairness to Mr Elvin required that this occur before it was too late for Mr Elvin to elect whether or not to call Mr Puerto as a witness in support of his case.

264    In the passage of the trial transcript which is extracted by Collier J at [70] of her Honour’s reasons, Mr Elvin expressed concern about the way Mr Puerto was conducting his case (which was, essentially, to remain inert and not to cross-examine witnesses). The discussion recorded in that passage was primarily concerned with Mr Puerto’s failure to take steps to challenge witnesses and evidence presented in the FWO’s case. It was not about Mr Puerto’s election not to give evidence. Importantly, at the end of the exchange, Mr Elvin was evidently left with the impression that, while Mr Puerto’s conduct may not have been helping Mr Puerto’s case, that was “not [Mr Elvin’s] problem”.

265    I would not characterise what Mr Puerto said to the primary judge in that passage as explaining a decision not to give evidence. All that Mr Puerto appears to have said was that he did not want to ask any questions of a particular witness. He did not state that he did not want to give evidence, and he did not offer any explanation as to why he would not give evidence. The exchange occurred in the course of the FWO’s case, and not at the point in the trial at which Mr Puerto would be expected to make a final election as to whether he would give evidence in his own case.

266    I would not necessarily infer that Mr Elvin’s lawyers, who represented him until shortly before the commencement of the trial, had actively considered whether Mr Puerto should be called in Mr Elvin’s case, and had formed an intention not to call him. Mr Puerto was himself a respondent to the proceeding, and had not formally admitted to the alleged contraventions. It would have been reasonable for Mr Elvin’s lawyers, prior to the trial, to anticipate that Mr Puerto would take a role in the trial that was broadly consistent with the advancement of his own interests. Even if Mr Elvin’s lawyers, before the commencement of the trial, had consciously formed an intention not to call Mr Puerto, Mr Elvin was not bound by any provisional forensic decision made by his lawyers (who had since ceased to act for him). He was entitled to decide which witnesses he would seek to call in his case, in light of the evidence adduced by the FWO in her case. The fact that Mr Elvin’s former lawyers had not, before the trial, indicated an intention to call Mr Puerto in Mr Elvin’s case at that point is, to my mind, essentially neutral. It does not support an inference that Mr Elvin was aware that, even if Mr Puerto ultimately chose not to give evidence in his own case, it was open to Mr Elvin to call Mr Puerto as a witness in Mr Elvin’s case.

267    I do not accept that Mr Elvin, as a litigant in person, would have appreciated that he was able to call Mr Puerto as a witness in his, Mr Elvin’s, case. If anything, the exchanges between the primary judge and Mr Elvin during the trial relating to Mr Puerto’s decision not to ask any questions of witnesses would naturally have suggested to Mr Elvin that, by parity of reasoning, the decision whether to give evidence was one for Mr Puerto and Mr Puerto alone. Moreover, the primary judge’s statements to Mr Elvin that Mr Puerto was “an autonomous individual” who was “entitled to do as he chooses”, while appropriate in the context in which they were made, would naturally have reinforced this understanding. So, while it may be accepted that Mr Elvin may have been able to form a view as to whether any evidence given by Mr Puerto would have assisted Mr Elvin’s case, I am not prepared to infer that Mr Elvin ever made a positive decision not to call Mr Puerto, let alone that he did so with an understanding of the potential consequences of that decision. The fact that Mr Elvin called other witnesses in his own case, who were not respondents to the proceeding, does not suggest that he appreciated that it was open to him to call Mr Puerto.

268    The fact that Mr Elvin gave evidence about Mr Puerto and his conduct, which Mr Puerto did not dispute, is not a consideration that suggests, to my mind, that Mr Elvin was aware that he could call Mr Puerto to give evidence, or that, knowing that he could do so, Mr Elvin made a deliberate decision not to call Mr Puerto. If anything, the fact that Mr Puerto did not dispute statements made by Mr Elvin might have provided Mr Elvin with reason to think that Mr Puerto’s evidence would have supported some aspects of Mr Elvin’s evidence. Again, this consideration is neutral. I also do not regard Mr Elvin’s submission at the hearing of the appeal which is recorded in the transcript extract set out at [73] of Collier J’s reasons as consistent with Mr Elvin having made an informed decision not to call Mr Puerto because Mr Elvin believed that any evidence he might give would not assist Mr Elvin’s case.

269    For these reasons, I would uphold Mr Elvin’s contention that he was denied procedural fairness in relation to the application of Jones v Dunkel.

Materiality of the denial of procedural fairness

General approach to consideration of materiality

270    The denial of procedural fairness related to an important aspect of the reasoning that was in fact adopted by the primary judge. However, like Vandongen J, in assessing whether the denial of procedural fairness was material, I accept that it is necessary to consider the primary judge’s reasons for each of the conclusions she reached, because it is possible that some of her Honour’s findings could not realistically have been different had the denial of procedural fairness not occurred.

271    While the events at trial did not give rise to a situation where Mr Elvin was “denied an opportunity to present evidence or make submissions on an issue that required consideration”, the consequence is somewhat analogous to such a situation: Mr Elvin was denied an opportunity to elect whether to call Mr Puerto as a witness in his case with an appreciation of the potential consequences of that choice. “It is no easy task for a court of appeal to satisfy itself that … a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The assessment of the materiality of a denial of procedural fairness proceeds on an assumption that, “if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome”: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at 103 [33]. It is not necessary for Mr Elvin to demonstrate, on appeal, what he would have done had he had an informed opportunity to decide whether to call Mr Puerto, or to identify the evidence that Mr Puerto would in fact have given in relation to particular alleged contraventions had he been called to give evidence: see Nathanson at 103 [33].

272    I consider that the primary judge should have explained to Mr Elvin the possible consequences of a failure to call Mr Puerto to give evidence at a point in the trial when it was still open to Mr Elvin to call Mr Puerto. Had the primary judge adopted that approach then the course of the trial might well have been different, including in ways which are virtually impossible to predict. In particular, had Mr Elvin appreciated the possible consequences of failing to call Mr Puerto as a witness, he might have elected to call him. Indeed, that seems relatively probable, given that Mr Elvin expressed concern during the trial about Mr Puerto’s failure to take a more active role. If called, it is possible that Mr Puerto might have given evidence which tended, in some respects, to support or corroborate aspects of the evidence that had been given by Mr Elvin.

273    In that case, the body of evidence before the Court would have been different. Depending on the view that was taken by the primary judge of Mr Puerto’s evidence, it is possible that his evidence could have affected the primary judge’s assessment of Mr Elvin’s evidence on particular topics, as well as generally: cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [4] (Gleeson CJ), quoted in Nathanson at 109 [49] (Gageler J). It should not be assumed that the primary judge’s assessment of Mr Elvin’s honesty can be neatly separated from the rest of the entire evidential setting in which that assessment fell to be made. That is particularly so where the fact that Mr Puerto did not give evidence, and the inference that anything he could say would not have assisted Mr Elvin, were the first points made by the primary judge (at [783] of the Liability Judgment) in support of her conclusion that Mr Elvin was involved in all but one category of the contraventions of the FW Act that were committed by FTM.

274    For these reasons, I do not think it should be concluded that the denial of procedural fairness could not possibly have made a difference to the primary judge’s findings that Mr Elvin was knowingly concerned in FTM’s contraventions of the FW Act, except in relation to certain findings, of the kinds identified at [275] below. Even in relation to findings where the primary judge’s reasoning does not appear to have depended directly on the drawing of a Jones v Dunkel inference, it may not be possible to conclude that the denial of procedural fairness could not possibly have made a difference to the outcome.

275    Findings of the primary judge which were justified by the application of the law to facts which Mr Elvin himself accepted in his evidence, stand in a different position. It is unrealistic to think that Mr Puerto, had he been called, would have given evidence that was contrary to Mr Elvin’s evidence in relation to those matters, or that, even had he done so, the Court would not have acted on Mr Elvin’s admissions against his own interests in finding that Mr Elvin was involved in contraventions of the FW Act by FTM. Likewise, findings of fact about the content of written records produced by FTM, which were based on direct consideration of those records, could not realistically have been affected by any evidence that Mr Puerto might have given, had he been called.

Which conclusions of the primary judge could not realistically have been different?

276    I am grateful to Vandongen J for his Honour’s careful analysis of each of the contraventions in which Mr Elvin was found to have been knowingly concerned. I agree with the caveat expressed by Vandongen J at [345] of his reasons, regarding the use of admissions made by FTM in the case against Mr Elvin.

277    I agree, for the reasons identified by Vandongen J at [355]-[367], that it should be accepted that the primary judge’s conclusion that Mr Elvin was knowingly concerned in FTM’s contraventions of s 45 of the FW Act could not realistically have been different, had Mr Elvin not been denied procedural fairness in the manner discussed above. That conclusion relates to the primary judge’s findings in relation to Mr Elvin’s involvement in FTM’s failure to pay the Massage Therapists (a) minimum hourly rates, (b) public holiday penalty rates, (c) Monday to Saturday overtime rates, and (d) Sunday overtime rates, in accordance with the Health Award. The admissions made by Mr Elvin demonstrated that he was personally directly involved in establishing the arrangements under which the Massage Therapists were paid, was aware of the basis on which they were paid, and authorised the making of payments on that basis.

278    For the reasons given by Vandongen J at [368]-[370], I agree with his Honour that the primary judge’s conclusion that Mr Elvin was knowingly concerned in FTM’s contravention of s 44 of the FW Act, by reason of its failure to pay out untaken annual leave in accordance with s 90(2) of the FW Act, could not realistically have been different had no denial of procedural fairness occurred. That conclusion was based only on Mr Elvin’s own admissions as to his involvement and knowledge, and was inevitable, irrespective of any evidence that Mr Puerto might have given, and irrespective of whether any Jones v Dunkel inference was drawn in the cases against Mr Elvin by reason of his failure to call Mr Puerto.

279    In relation to the allegation that Mr Elvin was knowingly concerned in FTM’s contravention of s 62(1) of the FW Act, by requiring the Massage Therapists to work unreasonable hours over and above 38 hours per week, it is possible that the primary judge’s conclusion could have been different but for the denial of procedural fairness that occurred. That is because the conclusion of the primary judge required the rejection of aspects of Mr Elvin’s evidence, and it should not be assumed that Mr Puerto’s evidence, had he been called, could have made no difference to the primary judge’s assessment of Mr Elvin’s evidence. I agree with what Vandongen J has said at [378] of his Honour’s reasons.

280    In relation to the allegation that Mr Elvin was knowingly concerned in FTM’s contravention of s 125 of the FW Act, by failing to provide the Massage Therapists with a copy of the Fair Work Information Statement, I agree with the reasons of Vandongen J at [379]-[381] for concluding that the primary judge’s conclusion on this issue could not realistically have been different, because her Honour’s findings as to Mr Elvin’s involvement were wholly justified by Mr Elvin’s own admissions. Although the factual question of whether a copy of the Fair Work Information Statement had been put on the wall of the FTM staff room was the subject of evidence from Mr Elvin (which was rejected), that evidence was ultimately not material to the primary judge’s conclusion as to FTM’s contravention and Mr Elvin’s involvement in it, because posting the Fair Work Information Statement on the wall did not satisfy the requirement to give it to employees.

281    In relation to the primary judge’s conclusion that Mr Elvin was involved in FTM’s contravention of s 323(1) of the FW Act, by reason of its making deductions from the pay of the Massage Therapists and failing to pay their wages in full, without authorisation in writing as required by s 324, I am satisfied that that conclusion could not realistically have been different even if the denial of procedural fairness had not occurred. That is because:

(a)    there was no dispute that deductions had been made from the wages of Massage Therapists who had borrowed money;

(b)    there was objective evidence that such deductions were made, as some payslips referred to deductions for staff loans; and

(c)    as the primary judge said at [515] of the Liability Judgment, “[i]n cross-examination Mr Elvin testified that there was no written agreement documenting the loans and no signed authorisations had been given by any of the Massage Therapists”.

282    In light of this evidence, including the concession made by Mr Elvin himself, it is implausible that Mr Puerto, or FTM’s bookkeeper, had they been called to give evidence, would have given evidence to the effect that the deductions had not been made, or that they were authorised in writing as required by s 324 of the FW Act. Had Mr Puerto or the bookkeeper been called, and given such evidence, it is unrealistic to suppose that it would have been accepted, in light of the positive evidence establishing the contravention, including Mr Elvin’s own admission that there was no agreement in writing of the kind contemplated by s 324 of the FW Act.

283    In relation to the allegation that Mr Elvin was involved in FTM’s contravention of s 325(1) of the FW Act, by unreasonably requiring six of the Massage Therapists to refund part of their wages to FTM, I agree with the reasons of Vandongen J, at [390]-[394], for concluding that the primary judge’s finding could realistically have been different had Mr Elvin not been denied procedural fairness.

284    In relation to the primary judge’s findings that Mr Elvin was involved in FTM’s contraventions of s 535 of the FW Act by reason of its failure to keep records as required by regs 3.34, 3.36(1) and 3.40 of the Fair Work Regulations 2009 (Cth) (FW Regulations), I agree with the reasons of Vandongen J at [395]-[399]. Not only did the primary judge’s reasons not rely upon the drawing of a Jones v Dunkel inference; the findings against Mr Elvin were based on a combination of her Honour’s analysis of the content of the records themselves and Mr Elvin’s admissions as to his role in FTM and his responsibility for creating the employee records, and could not realistically have been different, even if Mr Puerto had been called to give evidence.

285    I agree with the reasons of Vandongen J at [400]-[401] for concluding that the primary judge’s finding that Mr Elvin was involved in FTM’s contravention of reg 3.44(1) and (6) of the FW Regulations should be set aside. I also agree with Vandongen J’s reasons at [402]-[410] for concluding that the primary judge’s finding that Mr Elvin was involved in FTM’s contravention of s 340(1)(b) of the FW Act should be set aside.

286    The reasons and conclusion of the primary judge in relation to FTM’s contravention of s 351(1) of the FW Act, and Mr Elvin’s involvement in that contravention, depended in part on the rejection of evidence given by Mr Elvin. As explained above, I do not think it can be concluded that the denial of procedural fairness could not possibly have affected the primary judge’s assessment of Mr Elvin’s evidence, and consequently it cannot be concluded that the denial of procedural fairness could not possibly have affected the primary judge’s finding that Mr Elvin was knowingly concerned in FTM’s contravention of s 351(1) of the FW Act. I agree with the reasons of Vandongen J at [411]-[413] in support of this conclusion.

287    Finally, I agree with the reasons of Vandongen J at [414]-[417] for concluding that the primary judge’s finding that Mr Elvin was involved in FTM’s contravention of s 343(1) of the FW Act should be set aside.

Conclusions

288    It follows from the above reasons that, in my view, the appeal should be allowed in part.

289    Several of the findings with respect to Mr Elvin’s involvement in FTM’s contraventions were affected by a denial of procedural fairness, in the sense that it cannot be concluded that the denial of procedural fairness could not possibly have made a difference to those findings. The findings that should nevertheless be upheld are those relating to Mr Elvin’s involvement in FTM’s contraventions of:

(a)    s 45 of the FW Act, by failing to pay each of the Massage Therapists the minimum rates of pay, as HP Level 1 employees in accordance with cl 15.2 of, and cl A.2.5 of Schedule A to, the Health Award;

(b)    s 45 of the FW Act, by failing to pay each of the Massage Therapists public holiday rates, as HP Level 1 employees, in accordance with cl 32.2 of, and cl A.7.3 of Schedule A to, the Health Award;

(c)    s 45 of the FW Act, by failing to pay each of the Massage Therapists overtime rates for overtime work performed between Monday and Saturday, as HP Level 1 employees, in accordance with cl 28.1(a) of the Health Award;

(d)    s 45 of the FW Act, by failing to pay each of the Massage Therapists overtime rates for overtime work performed on Sundays, as HP Level 1 employees, in accordance with cl 28.1(b) of the Health Award;

(e)    s 44(1) of the FW Act, by failing to pay each of the Massage Therapists their respective accrued untaken annual leave entitlements on termination, in accordance with s 90(2) of the FW Act;

(f)    s 44(1) of the FW Act, by failing to give the Fair Work Information Statement to each of the Massage Therapists as it was obliged to do under s 125(1) of the FW Act;

(g)    s 323(1) of the FW Act, by failing to pay each of the Massage Therapists in full by making unauthorised deductions from their wages;

(h)    s 535(1) of the FW Act, by failing to make and keep employee records in relation to each of the Massage Therapists, as prescribed by:

(i)    reg 3.34 of the FW Regulations, in that it did not record the number of overtime hours worked by the Massage Therapists or the start and finish times of the overtime hours they worked;

(ii)    reg 3.36(1) of the FW Regulations, in that it did not record the periods of annual leave taken by the Massage Therapists and the balance of their entitlements to annual leave from time to time; and

(iii)    reg 3.40 of the FW Regulations, in that its records did not document the manner in which the employment of the Massage Therapists was terminated.

290    Like Vandongen J, I am of the view that the remaining findings of the primary judge with respect to Mr Elvin’s involvement in FTM’s contraventions cannot be upheld because it cannot be concluded that those findings could not possibly have been different, had the denial of procedural fairness not occurred.

291    The primary judge made orders that FTM and Mr Elvin pay the FWO particular amounts as compensation for the contraventions that resulted in underpayments to the Massage Therapists, and pecuniary penalties. Mr Elvin should only be liable for those underpayments in which he has been held to be knowingly concerned, and should only be required to pay pecuniary penalties in respect of those contraventions of the FW Act in which he is held to be knowingly concerned. The parties should be given an opportunity to make submissions about the appropriate orders to be made in respect of these matters.

292    I agree with the orders proposed by Vandongen J.

Associate:

Dated:    21 July 2026

REASONS FOR JUDGMENT

VANDONGEN J:

293    Subject to what is set out below, and generally for the reasons expressed by Collier J, I agree that grounds B to H in Mr Elvin's amended notice of appeal against the orders made in the Liability Judgment must be dismissed. I also agree with her Honour, for the reasons that she has expressed, that grounds I to M of Mr Elvin's appeal against orders made in the Penalty Judgment, and the Ombudsman's cross-appeal, must be dismissed.

294    However, I am of the view that ground A should be allowed, in part. I will deal with ground A at the end of these reasons. In doing so, I will adopt the terms used by the primary Judge in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 (Liability Judgment).

Ground B

295    My agreement with the reasons of Collier J in relation to ground B should be understood as being subject to the views that I will express about the primary Judge's decision to draw a Jones v Dunkel inference in the context of ground A. However, insofar as ground B may be taken to contend that the primary Judge's failure to explain Jones v Dunkel to Mr Puerto gave rise to a reasonable apprehension of bias, I am of the view that this contention must be rejected. This is at least because Mr Elvin failed to establish the existence of any logical connection between that factor and an apprehended deviation from deciding the Ombudsman's case against him on its merits.

Ground C

296    In relation to ground C, while I agree with what Collier J has written about this ground, it is necessary to note that Mr Elvin contends that he was denied procedural fairness because orders that were made on 14 October 2021 required him to file an amended defence after the primary Judge had determined questions of liability. According to Mr Elvin, this occurred in circumstances in which no provision was made for him to file any evidence, or to make any submissions to support those amendments, and no provision was made for his defence to be considered by the Court.

297    It may be accepted that the primary Judge's orders provided for the filing by Mr Elvin of an amended defence in response to amendments that were made to the Ombudsman's statement of claim, and that those orders were only made after the primary Judge had already determined the question of liability. However, it does not follow from this that Mr Elvin was denied procedural fairness.

298    Assuming that the primary Judge made no provision for Mr Elvin to file any evidence to support the amendments that were ultimately made to his defence, or to make submissions to address that defence, the question that must be determined is whether the decision that was, in fact, made by the primary Judge could realistically have been different had there been no such error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). That requires consideration to be given to the amendments that Mr Elvin made to his defence in accordance with the orders that were made on 14 October 2021.

299    Several of the amendments Mr Elvin made to his defence were concerned with answering the Ombudsman's alternative case that the Hair and Beauty Award applied: paras 33, 28A to 34A, 43A to 92A and 161HP to 174HP of Mr Elvin's second amended defence (Amended Defence). However, although the primary Judge found at [398] of the Liability Judgment that the Hair and Beauty Award may have covered FTM, her Honour also concluded that the Massage Therapists were covered by the Health Award and that they were within the HP Level 1 classification. Her Honour reached that conclusion because, in her view, it was the award classification that was the most appropriate to the work the Massage Therapists had performed and to the environment in which it was performed. It follows that the primary Judge's decision could not realistically have been different, even if Mr Elvin had been afforded the opportunity to file any evidence or make submissions to support amendments to the Amended Defence answering the Ombudsman's alternative case based on the Hair and Beauty Award covering the Massage Therapists.

300    Mr Elvin also made several amendments to the Amended Defence amounting to bare denials to amendments that were made to the Ombudsman's statement of claim. Mr Elvin did not explain how he was denied procedural fairness in those circumstances. The amendments to the Amended Defence did not give rise to an occasion for Mr Elvin to file any evidence or make positive submissions in support of those amendments.

301    One of the amendments that was made appears at para 73HP of the Amended Defence. That plea responded to the Ombudsman's plea that FTM contravened s 44(1) of the FW Act by failing to pay the Massage Therapists their accrued, untaken annual leave entitlements on termination in contravention of s 90(2) of the FW Act. The essence of the plea at para 73HP of the Amended Defence was that FTM had not contravened s 90(2) of the FW Act because the Massage Therapists were paid their accrued annual leave entitlements under the DOCA.

302    The difficulty for Mr Elvin is that FTM admitted that it had failed to pay to the Massage Therapists their accrued, untaken annual leave entitlements. At [451] of the Liability Judgment, the primary Judge found that FTM had, based on its own admissions, failed to comply with s 90(2) and so contravened s 44 of the FW Act by not paying each of the Massage Therapists the amount that would have been payable to them with respect to the period of untaken annual leave. Further, and in any event, in concluding that Mr Elvin was knowingly concerned in FTM's contravention the primary Judge found at [798] of the Liability Judgment, that Mr Elvin had admitted that he knew that the Massage Therapists had accrued untaken annual leave at the time their employment with FTM ended and that he had determined what they should be paid and had approved their annual leave.

303    An amendment was made to para 10 of the Amended Defence. That amendment went beyond the scope of the primary Judge's orders of 14 October 2021. Those orders allowed Mr Elvin to file any amended defence 'in response to the amendments' made by the Ombudsman under those same orders. Instead, the amendment made by Mr Elvin to para 10 of the Amended Defence responded to earlier amendments that had been made by the Ombudsman to its statement of claim, and did so by referring to the terms of the contracts of employment between FTM and the Massage Therapists that were in evidence. In any event, Mr Elvin did not explain how the primary Judge's decision could have been different had he had been afforded the opportunity to file any evidence or make submissions to support those amendments.

304    In para 14 of the Amended Defence, Mr Elvin responded to the Ombudsman's allegation that the Massage Therapists had completed over three years of previous employment experience in the massage industry in the Philippines with a bare denial, followed by two specific pleas concerning Mr Benting. The bare denial did not give rise to an occasion for Mr Elvin to file any evidence or make positive submissions to support those amendments.

305    Mr Elvin also made specific pleas in para 14 of the Amended Defence concerning Mr Benting, one of the Massage Therapists. By those pleas Mr Elvin asserted, in effect, that Mr Benting did not have over three years' experience in the massage industry in the Philippines. A similar plea was made in para 33HP(a) of the Amended Defence. Those pleas were plainly intended to deal with a specific aspect of the Ombudsman's case, namely that Mr Benting was covered by the Health Award under the classification HP Level 1. However, Mr Elvin did not identify any evidence, or any submissions, on which he may have relied in support of that plea to demonstrate that the primary Judge's decision could have been different had he been afforded the opportunity to file evidence or make submissions to support those amendments. In any event, the primary Judge's conclusion that the Massage Therapists were covered by the Health Award under the classification HP Level 1 was not based on a finding that they had three years' experience in the massage industry. Instead, the primary Judge found at [384] of the Liability Judgment that the Massage Therapists:

held qualifications which were deemed acceptable by FTM and, in any event, was the appropriate level for the Massage Therapists who were in the early stages of their careers as health professionals.

(emphasis added)

306    As will be seen in the context of ground E, the classification HP Level 1 under the Health Award is, amongst other things, a level for health professionals who hold 'such qualifications as deemed acceptable by [their] employer' and also a 'level for the early stages of the career of a health professional'.

307    Further pleas were made in para 33HP of the Amended Defence in response to the Ombudsman's case that all of the Massage Therapists were properly classified under the Health Award as HP Level 1. By those pleas Mr Elvin asserted that:

(1)    Four of the Massage Therapists had not attended the NKYR Academy (a Thai massage course in Cebu) in the Philippines and obtained a certificate in massage.

(2)    None of the Massage Therapists had sound communication skills.

(3)    None of the Massage Therapists were required to undergo specific on-the-job training in order to perform the massages required of them on the clients of FTM.

(4)    None of the Massage Therapists were capable of communicating in the English language at HP Level 1 without the assistance of an interpreter.

308    However, Mr Elvin did not draw this Court's attention to any evidence on which he may have relied in support of those pleas and did not indicate what submission he could have made that he had not already made to the primary Judge. Nevertheless, I am of the view that the primary Judge's decision could not realistically have been different. That is because none of the matters that were the subject of those pleas were relevant to the question that the primary Judge was required to determine, namely whether the Massage Therapists were properly classified under the Health Award as HP Level 1. Based on the terms of the Health Award, those pleaded factors were relevant to a different classification under the Health Award, namely, 'Support Services employees': see cl B.1 in Sch B of the Health Award.

309    The balance of the pleas in para 33 HP of the Amended Defence amounted to bare denials. Mr Elvin did not identify any evidence, or any submissions, on which he may have relied in support of those pleas.

310    For these further reasons, I agree that ground C must be dismissed.

Ground E

311    By its terms, ground E appears to invoke principles that are usually associated with jurisdictional error in administrative decision making. As Dhanji J observed in Ying v Hou [2023] NSWSC 1291 at [25], while it is settled that a finding of fact for which there is no evidence is an error of law, a complaint of an error of law on the basis that a finding was irrational or illogical is less straightforward.

312    Taking into account the fact that Mr Elvin represented himself on the appeal, it is apparent that the essential focus of this ground is on the primary Judge's conclusion that the Health Award applied to the Massage Therapists, as that term was defined at [4] of the Liability Judgment, for the purposes of s 47(1) of the FW Act.

313    The Health Award applied to the Massage Therapists if, relevantly, it 'cover[ed]' those employees. As the primary Judge noted at [341] of the Liability Judgment, under s 48(1) of the FW Act, the Health Award covered the Massage Therapists if it was expressed to do so. By operation of cl 4.1(a) of the Health Award, it relevantly covered the Massage Therapists if they were employees of FTM in a classification listed in cl 15 of that award.

314    As the primary Judge noted at [362] of the Liability Judgment:

Clause 15 [of the Health Award] relates to minimum weekly wages for Health Professional employees and includes Health Professional employee-levels 1 to 4. The lowest pay point (pay point 1) for the lowest level of Health Professional employee (level 1) is 'UG 2 qualification'. The second lowest is 'three year degree entry'. 'UG 2' is an abbreviation for 'undergraduate 2' and is defined in cl 3.1 of the award to mean 'an employee with a diploma or equivalent'.

315    The primary Judge found that the Massage Therapists were employees in the position of HP Level 1, which appeared in Sch B of the Health Award, itself entitled 'Classification Definitions'. HP Level 1 was in the following terms:

Positions at level 1 are regarded as entry level health professionals and for initial years of experience.

This is the entry level for new graduates who meet the requirement to practise as a health professional (where appropriate in accordance with their professional association's rules and be eligible for membership of their professional association) or such qualification as deemed acceptable by the employer. It is also the level for the early stages of the career of a health professional.

316    It may be noted from the text used in the classification of HP Level 1 that positions at that level were 'regarded as entry level health professionals'.

317    As the primary Judge observed, the term 'health professional' was not defined in the Health Award. However, Mr Elvin does not by this ground challenge the primary Judge's finding at [375] that the Massage Therapists were 'health professionals' for the purposes of HP Level 1 'because they performed aromatherapy, remedial massage, reflexology and … aspects of myotherapy', or the reasoning that led to that conclusion. Instead, the focus of ground E is on the second paragraph of that classification. As I understood Mr Elvin's submissions, he contends that the primary Judge erred in concluding that the Massage Therapists were employees within the classification of HP Level 1 based only on evidence that he gave in cross-examination.

318    The primary Judge summarised the relevant evidence Mr Elvin gave in cross-examination at [285] of the Liability Judgment in the following way:

(1)    he was aware that the Massage Therapists had at least three years of experience in the massage industry;

(2)    he read Exhibit 8 [a letter sent by FTM to what must then have been the Department of Immigration and Citizenship dated 1 February 2013] before it was sent, in which he, on behalf of FTM, represented that three years' relevant experience was equivalent to a formal qualification in massage therapy;

(3)    he required the Massage Therapists to attend the NKYR Academy in the Philippines to obtain qualifications before starting work with FTM and arranged for them to be trained to the standard FTM required; and

(4)    he recognised those qualifications and deemed them to be acceptable.

319    Having regard to the passage of the primary Judge's reasons that is reproduced in Collier J's reasons at [191], it is plain that this evidence formed an important part of the primary Judge's reasoning that the Massage Therapists were employees within the HP Level 1 classification of the Health Award because they held 'such qualification as deemed acceptable by [FTM]'. However, I agree with Collier J's observation at [192] that, contrary to the contention that underpins ground E, Mr Elvin's evidence was not the only evidence on which the primary Judge relied to reach that conclusion. In that regard, the primary Judge referred to evidence of representations that FTM made to the Department of Immigration and Citizenship in 2013 about the Massage Therapists' experience, which representations were to the effect that their industry experience was equivalent to a diploma. Independently of Mr Elvin's evidence, those representations were capable of establishing that the Massage Therapists were properly classified as HP Level 1 employees. As the primary Judge noted at [383] of the Liability Judgment, under cl 15.2 of the Health Award, HP Level 1 employees at pay point 1 were those holding a 'UG 2 qualification', namely, employees 'with a diploma or equivalent'. On that basis alone, ground E must be dismissed.

320    However, it is also important to note that, at [384] of the Liability Judgment, the primary Judge separately concluded that HP Level 1 was, 'in any event', the appropriate classification level for the Massage Therapists. That was because the Massage Therapists were at 'the early stages of [their] career [as] a health professional', as contemplated by the final sentence used in cl B.2.1 of Sch B of the Health Award to describe that level. As Mr Elvin has not challenged that conclusion, that is a further reason why this ground of appeal cannot succeed.

Ground F

321    By this ground, Mr Elvin contends that the primary Judge's conclusion that FTM was not a creditor for the purposes of the DOCA was 'illogical' and 'not supported by the law'. Putting to one side the terminology that, as I have already noted, is redolent of judicial review of administrative decisions, Mr Elvin's essential contention appears to be that the primary Judge erred in concluding that the DOCA did not preclude the Court making orders for declaratory relief or the payment of pecuniary penalties.

322    In my view it is unnecessary to determine whether the primary Judge was correct to so conclude. Quite apart from the fact that Mr Elvin is in no position to challenge the orders that were made by the primary Judge against FTM, as Collier J and McDonald J have separately concluded at [198] to [199] and [248] to [249] respectively, the DOCA did not prevent claims being brought by the Ombudsman against Mr Elvin, or prevent the Court from making findings and orders in respect of him.

Ground A

323    In my view, and for the reasons given by Collier J at [23] to [57], and by McDonald J in his separate reasons at [246] to [255], almost all of Mr Elvin's contentions that he was denied procedural fairness must be rejected. However, like McDonald J, I am of the view that the fairness of Mr Elvin's trial was adversely affected having regard to the circumstances in which the primary Judge decided to draw a Jones v Dunkel inference from Mr Elvin's failure to call Mr Puerto as a witness.

324    Before explaining why I have reached that conclusion, and while it is strictly unnecessary to decide whether a Jones v Dunkel inference should have been drawn at all, I should first record my doubts about whether it was open to the primary Judge to draw a Jones v Dunkel inference because Mr Elvin failed to call Mr Puerto as a witness.

325    It is true, as the primary Judge observed at [229] to [231] of the Liability Judgment, that there are cases that establish that an unexplained failure of a respondent to proceedings for the recovery of a pecuniary penalty to give evidence on a matter relevant to the proceedings will permit a court to more readily draw a Jones v Dunkel inference. However, we were not referred to any authorities to suggest that it might be open to draw such an inference where one party to proceedings of that kind fails to adduce evidence from another respondent to the same proceedings, particularly where that other respondent has claimed the privilege against exposure to a penalty.

326    As the primary Judge's extensive summary of the relevant principles at [218] to [232] of the Liability Judgment demonstrate, in particular the statement by Mahoney JA in Fabre v Arenales (1992) 27 NSWLR 437 at 445 to 446 to which her Honour referred, a Jones v Dunkel inference will not be drawn if there are facts which disclose that the reason for not adducing evidence from a person was other than because the party feared to do so. In the circumstances of this case it might well be said that there were other inferences that were available, including that as a litigant in person, Mr Elvin simply did not believe that it may have been open to him to call Mr Puerto as a witness, particularly in circumstances in which Mr Puerto had exercised the privilege against exposure to a penalty throughout the trial.

327    Having expressed those doubts, it is then necessary to explain why I am of the view that the trial judge erred in connection with her decision to draw a Jones v Dunkel inference from Mr Elvin's failure to call Mr Puerto as a witness.

328    Questions about whether it was open to draw a Jones v Dunkel inference in circumstances in which Mr Elvin had not called Mr Puerto to give evidence were raised by the primary Judge, and not by either party, and then only for the first time during the oral closing submissions of counsel for the Ombudsman. As the passage taken from the transcript of the trial to which Collier J has referred at [65] demonstrates, when those questions were first raised by the primary Judge, counsel for the Ombudsman in fact expressed concern about whether it was open to draw a Jones v Dunkel inference as Mr Puerto had claimed the privilege against exposure to a penalty.

329    The passage that appears at [65] of Collier J's reasons also reveals that after the primary Judge raised the question about whether a Jones v Dunkel inference could be drawn, counsel for the Ombudsman undertook to carry out some further research. It then appears that after carrying out some research overnight the Ombudsman filed a revised version of its written closing submissions before the proceedings resumed the following day. In those submissions the Ombudsman wrote that, while it was open to draw a Jones v Dunkel inference against Mr Puerto, it was doubtful whether such an inference should also be drawn in Mr Elvin's case based on his failure to call Mr Puerto to give evidence:

However, where there a co-respondents in the same proceedings, it was held in Adlam v Noack [1999] FCA 1606 at [6] that s 17(3) of the Evidence Act applies by analogy to civil penalty proceedings. Under s 17(3) of the Evidence Act, an associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant. In the Dictionary, an associated defendant is relevantly a defendant in a criminal proceeding, against whom a prosecution has been instituted, but not yet completed or terminated, for an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose, or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted. If this position applies by analogy to these proceedings, such an inference cannot be drawn against [Mr Elvin] by [Mr Puerto's] failure to give evidence.

330    Then, consistently with his written submissions, counsel for the Ombudsman said in his oral submissions that the question of whether a Jones v Dunkel inference could be drawn because Mr Elvin had not called Mr Puerto to give evidence was 'a bit complicated'.

331    What is clear is that the Ombudsman did not ever seek to persuade the primary Judge to draw any Jones v Dunkel inference in its case against Mr Elvin. A reasoning process that included a Jones v Dunkel inference being drawn did not ever form part of the Ombudsman's case against FTM or Mr Elvin. Having regard to the way in which the issue of whether a Jones v Dunkel inference could and should be drawn was raised and dealt with in the exchanges that took place between counsel for the Ombudsman and the primary Judge, at the end of the trial Mr Elvin would ultimately have been entitled to assume that no such inference would be drawn.

332    Nevertheless, the primary Judge did draw a Jones v Dunkel inference based on Mr Elvin's failure to call Mr Puerto to give evidence. In my view, before drawing such an inference, the primary Judge should have given Mr Elvin the opportunity to make submissions on the question of whether such an inference could and should be drawn in those circumstances. As Mr Elvin was unrepresented, this meant that the primary Judge was required to draw to his attention the potential for such an inference to be drawn and to provide him with a reasonable opportunity to make submissions. However, this was not done.

333    As will be seen, the primary Judge also drew a Jones v Dunkel inference because Mr Elvin failed to call FTM's bookkeeper in the context of her Honour's consideration of whether FTM had contravened s 323(1) of the FW Act by making unauthorised deductions from the wages of the Massage Therapists. Once again, the Ombudsman did not submit that a Jones v Dunkel inference should be drawn on the basis of Mr Elvin's failure to call the bookkeeper and the primary Judge did not give any notice that such an inference might be drawn.

334    In my view Mr Elvin was denied procedural fairness because the primary Judge decided to draw Jones v Dunkel inferences in determining whether the Ombudsman had established its case against him without giving him the opportunity to make informed submissions about whether such an inference could or should be drawn.

335    Before proceeding further to deal with the consequences of that conclusion, it is necessary to make some further and related observations about the fairness of Mr Elvin's trial

336    As emerges from the passages in Hamod v State of New South Wales [2011] NSWCA 375 at [309] to [316] (Beazley JA, Giles JA agreeing at [829] and Whealy JA agreeing at [830]), to which Collier J has already referred at [23], the courts have an overriding duty to ensure that a trial is fair. That duty requires that a litigant in person does not suffer a disadvantage from exercising their right to be self-represented. In discharging that duty, a trial judge must take appropriate steps to ensure, so far as is reasonably practicable, that a litigant in person has sufficient information about the practice and procedure of the court: Hamod at [311] (Beazley JA, Giles JA agreeing at [829] and Whealy JA agreeing at [830]). The application of that principle will vary depending upon the circumstances of the case, and views may differ in a particular case about where the line should be drawn in striking a balance between providing assistance to a litigant in person and ensuring a fair trial for all parties: Hamod at [315] (Beazley JA, Giles JA agreeing at [829] and Whealy JA agreeing at [830]); Stone v Braun [2015] WASCA 103 at [69] (Beech J, Buss JA agreeing at [1] and Mazza JA agreeing at [2]). However, while a judge does not have a duty to advise a litigant in person how they should exercise their rights, a judge is required to put such a person in the position of being able to make an effective choice: Hamod at [312] (Beazley JA, Giles JA agreeing at [829] and Whealy JA agreeing at [830]).

337    The primary Judge was clearly alive to the need to ensure that Mr Elvin, as a litigant in person, received a fair trial. In that regard, her Honour was careful to take steps during the trial to ensure that Mr Elvin had enough information about the practice and procedure of the Court. For example, on the very first day of the trial the primary Judge told Mr Elvin:

You must understand, though, that the scope of the cross-examination will be restricted by the rules of evidence, and you need to make sure that the questions that you ask are clear, precise and you should understand that if there are some submissions that you want to make at the end of the case, whenever that might be, and the propositions that you wish to advance are at odds with the evidence given by the witnesses in their affidavits, then you will need to put those propositions to the witnesses to give them an opportunity to respond to them.

338    This explanation was obviously designed to bring to Mr Elvin's attention his obligation to comply with the rule in Browne v Dunn (1893) 6 R 67. There is no doubt that the primary Judge took this step because she appreciated that there was a real risk that Mr Elvin, as a litigant in person, might not otherwise have understood his obligations when cross-examining the Ombudsman's witnesses or appreciated the effect that a failure to comply with those obligations may have on the Court's assessment of the evidence. However, Mr Elvin's attention was never drawn to the potential consequences that might flow from an unexplained failure to call witnesses.

339    In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101], McHugh J noted that one of the fundamental rules of the fair hearing doctrine:

is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.

340    Ordinarily, a party to litigation who is legally represented may be taken to anticipate that a Jones v Dunkel inference might be drawn if without explanation they fail to call a witness who the party might reasonably be expected to call. However, there was nothing in the circumstances of this case to suggest that Mr Elvin had the wherewithal to appreciate that, at the moment he closed his case, he might then be at risk of a Jones v Dunkel inference being drawn from his failure to call a witness including Mr Puerto who, according to the primary Judge, had been 'personally involved in many of the critical events' and who had been present in court throughout most of the trial. In short, Mr Elvin could not have known of, or anticipated, that a Jones v Dunkel inference might be drawn as a result of his failure to call Mr Puerto, or indeed anyone else, as a witness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283 at [99] to [105] (Osborn JA), [119] (Whelan JA). In this context, I also agree with what McDonald J has written at [260], [262] and [264] to [268] of his reasons.

341    In those circumstances, I am of the view that the primary Judge was obliged to warn Mr Elvin of the risk of a Jones v Dunkel inference being drawn and to do so before he had closed his case. It was necessary for that warning to have been given at that time so that Mr Elvin then had the opportunity to at least consider whether to call Mr Puerto (or any other witness) to give evidence, or at least to adduce evidence that might satisfy the primary Judge that the inference should not be drawn. I also agree with what McDonald J has said at [263] of his reasons.

342    In light of what I have said to this point it may be seen that Mr Elvin was denied procedural fairness in two different although related respects. As I have just identified, one concerned the absence of a warning about the possible consequences of a failure to call Mr Puerto (or any other witness) to give evidence, with the resultant denial of an opportunity to elect whether to adduce such evidence. The other, which I identified earlier in these reasons, concerned the denial of an opportunity to make submissions at the end of the trial about whether a Jones v Dunkel inference could and should be drawn. Of course, this occurred in circumstances in which the primary Judge was required to manage a very complex and often contentious trial, in which there were two litigants in person.

343    It is well established that not every departure from the rules of procedural fairness will entitle an aggrieved party to a new trial: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The particular question that arises is whether the primary Judge's failure to warn Mr Elvin at the appropriate time that a consequence of his failure to call Mr Puerto (or any other witness) might include the drawing of a Jones v Dunkel inference, and the further failure to provide Mr Elvin with the opportunity to make submissions about whether that inference should be drawn, were material errors.

344    In my view, it is not possible to determine whether the errors that I have identified amount to material errors without examining in detail the specific reasoning process the primary Judge employed in concluding that Mr Elvin was knowingly concerned in FTM's contraventions of the FW Act and the FW Regulations. Before carrying out that examination it is necessary to make one further observation.

345    The primary Judge found that Mr Elvin was knowingly concerned in several of FTM's contraventions, for the purposes of s 550(2)(c) of the FW Act, and by operation of s 550(1) was therefore involved in those contraventions and taken to have also contravened the relevant provisions of the FW Act. While in a case in which it is alleged that a person is knowingly concerned in a contravention of the FW Act a finding of liability is not required to be made in respect of a 'primary' contravener, as the terms of s 550 make clear, there must at least be a finding that there was such a contravention. However, it is axiomatic that such a finding must be based on the evidence that is admissible against the person who is alleged to have been knowingly concerned. In this case the primary Judge's reasons in the Liability Judgment suggest that, from time to time, conclusions about Mr Elvin's liability may, at least in part, have been reached based on admissions made by FTM. No complaint was made in the appeal about this aspect of the primary Judge's approach to determining Mr Elvin's liability and, as a consequence, the Court was not provided with any submissions about that issue. Accordingly, I will say nothing more about it. However, the following analysis should not be understood as amounting to an endorsement of the use of FTM's admissions in deciding the Ombudsman's case against Mr Elvin. My only purpose in referring to the reasoning process in which the primary Judge actually engaged is to explain why I am of the view that certain conclusions reached by the primary Judge could or could not realistically have been different, as the case may be, at the trial that was had.

346    One of the consequences of the errors that I have identified is that the primary Judge ultimately concluded that not only was it open to her Honour to draw a Jones v Dunkel inference, but that such an inference should also be drawn. After carrying out a comprehensive review of the principles relating to the drawing of a Jones v Dunkel inference, at [218] to [231] of the Liability Judgment, the primary Judge said that:

Here the conditions for the operation of the rule are established and the available inferences are not only open, they should be drawn. The absence of evidence from Mr Puerto is of particular significance, not only because he was clearly available and did not testify, but also because he is a party and was personally involved in many of the critical events. In Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582, in a passage cited by approval in Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253 at [448], Street J observed:

'The inference which a Court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. Where the absent witness is a party himself then considerable importance may well attach to the inference. Similarly, the inference is significant if the absent witness is, as in the present case, a person who … was personally engaged in the transactions in question and who was in fact present at Court during part of the hearing …'

See, too, Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ).

(emphasis added)

347    On this basis, and without more, it might well be concluded that this passage is more than a sufficient basis on which to conclude that the outcome of the Ombudsman's case against Mr Elvin could realistically have been different had the primary Judge not erred in the way in which I have found. The passage clearly suggests that the primary Judge did draw a Jones v Dunkel inference based on Mr Elvin's failure to call Mr Puerto as a witness in considering the Ombudsman's case against Mr Elvin.

348    Another consequence of the errors that I have identified concerns the primary Judge's credibility findings. In unmistakable terms the primary Judge explained at [208] to [209] of the Liability Judgment that she found Mr Elvin to have been an untruthful witness:

Mr Elvin proved to be an unreliable witness, who was given to dissembling. Aspects of his account were contrary to contemporaneous documents he admitted were accurate. Many of his answers were unresponsive to the questions. Parts of his evidence were internally inconsistent. Parts of his evidence defied credibility. At times his evidence made little sense ...

Mr Elvin is not an honest man. The evidence is replete with examples of his dishonest business practices.

349    At [212] her Honour said that Mr Elvin's 'dishonesty was not confined to his business practices'.

350    Then a short while later, at [216] to [217], she said:

I formed the view that Mr Elvin was generally prepared to say anything in order to exculpate himself, regardless of whether it was true or accurate.

In these circumstances, I consider that his evidence should not be accepted unless it is against his interest or corroborated by reliable independent evidence. The evidence given by his parents was neither reliable nor independent.

(emphasis added)

351    The primary Judge's reference to the absence of corroborating evidence is of significance. That is because, in only the second paragraph of her reasons for explaining why she found that Mr Elvin was knowingly concerned in almost all of FTM's contraventions, the primary Judge said at [783] of the Liability Judgment:

Mr Puerto was in the best position to corroborate Mr Elvin's account. Yet, he did not give evidence. I infer that anything Mr Puerto could say would not have assisted Mr Elvin's case.

(emphasis added)

352    When read in context, this passage not only suggests that the primary Judge relied on a Jones v Dunkel inference in reaching conclusions about Mr Elvin's liability, but that this inference also formed part of her Honour's assessment of Mr Elvin's evidence. This too tends to support a conclusion that the outcome of the Ombudsman's case against Mr Elvin could realistically have been different had the primary Judge not fallen into error in the way I have explained. Had the primary Judge warned Mr Elvin about the potential implications of his failure to call Mr Puerto (or any other witness) the evidence that was before the primary Judge at the trial may have been different. Not only might that evidence have established that a Jones v Dunkel inference could or should not be drawn, it may also have affected the primary Judge's assessment of the evidence Mr Elvin adduced as part of his case, including the evidence Mr Elvin himself gave.

353    To determine whether the declarations and orders that were made by the primary Judge could realistically have been different had the primary Judge drawn to Mr Elvin's attention before the close of his case that a consequence of his failure to call Mr Puerto might include the drawing of a Jones v Dunkel inference, and had Mr Elvin been provided with an opportunity to make submissions at the end of the case about whether that inference should be drawn, it is necessary to closely examine exactly how the primary Judge reasoned.

354    The starting point is to note that the primary Judge found that Mr Elvin was knowingly concerned in all of FTM's contraventions, with one exception that related to FTM's failure to give pay slips to the Massage Therapists as required by s 536 of the FW Act. Accordingly, it is necessary to consider the primary Judge's reasoning in connection with her Honour's conclusions concerning FTM's contraventions as well as her conclusions that Mr Elvin was knowingly concerned in those contraventions.

Underpayment claims

355    At trial, the Ombudsman alleged on several grounds that FTM had contravened a term of a modern award, and that it had thereby contravened s 45 of the FW Act, by underpaying the Massage Therapists. In dealing with those allegations the primary Judge commenced, at [402] to [410] of the Liability Judgment, with Mr Elvin's argument that FTM did not calculate employee entitlements based on an award but on what he asserted was an 'unwritten individual flexibility agreement'.

356    The primary Judge rejected Mr Elvin's argument, noting that Mr Elvin had not pleaded the factual basis of his argument, and also that it was inconsistent with the admissions made in FTM's defence, with the way in which Mr Elvin had conducted much of his case, and with the way in which Mr Elvin had interacted with the Ombudsman when FTM was served with notices to produce. The primary Judge also observed that, in any case, most of the conditions for an 'individual flexibility agreement' provided for in the Health Award (which is referred to in the Health Award as 'flexible working arrangements') had not been satisfied, including, as Mr Elvin had admitted, no written proposal for such an agreement was ever prepared. The primary Judge found at [410] of the Liability Judgment that the only contracts into which FTM had entered with the Massage Therapists were the written contracts tendered in evidence and, 'based on Mr Elvin's own evidence, that he never had any intention of complying with many of the terms of the contract and that he made an economic decision not to comply with the award …'.

357    None of that reasoning involved drawing a Jones v Dunkel inference. That is hardly surprising as there is nothing to suggest that Mr Puerto could have given any relevant evidence about the contracts between FTM and the Massage Therapists. Further, although the primary Judge rejected Mr Elvin's evidence about the existence of unwritten 'individual flexibility agreements', that was not her Honour's only reason for concluding that there had been no such agreements. The primary Judge's finding that most of the conditions for an 'individual flexibility agreement' under the Health Award were not satisfied was not based on any adverse view she had taken regarding the credibility or reliability of the evidence that was adduced in Mr Elvin's case. On the contrary, the primary Judge's finding that '[m]ost, if not all, [of] these conditions were not satisfied' was based on her acceptance of Mr Elvin's evidence: see [409] of the Liability Judgment.

358    The primary Judge found at [425] to [426] of the Liability Judgment that FTM had contravened s 45 of the FW Act by failing to pay the Massage Therapists minimum hourly rates, public holiday penalty rates, Monday to Saturday overtime rates and Sunday overtime rates in accordance with the Health Award:

Based on the admissions made in FTM's further amended defence, it is evident that the Massage Therapists were underpaid, regardless of which of the two awards applied and the classification which applied to their employment. They were not paid the minimum hourly rates having regard to the hours they worked. They were not paid public holiday penalty rates when they worked public holidays. They were not paid Monday to Saturday overtime rates when they worked overtime over the period Monday to Saturday. Nor were they paid Sunday overtime rates when they worked overtime on Sundays.

I find that FTM breached the Health Award in all these respects and therefore contravened s 45 of the [FW Act].

359    I have already referred to the primary Judge's reasons for reaching the conclusion that the Massage Therapists were properly classified as HP Level 1 in the Health Award. That conclusion was reached based on the primary Judge's acceptance of an aspect of Mr Elvin's own evidence, on evidence of certain representations Mr Elvin made to the Department of Immigration and Citizenship and on the basis that HP Level 1 was the appropriate classification as the Massage Therapists were in the early stages of their careers as health professionals. It can also be seen from the above passages taken from the primary Judge's reasons (at [358] of these reasons) that the conclusion that the Massage Therapists had been underpaid was based on admissions made by FTM. Accordingly, there is nothing to suggest that the primary Judge drew a Jones v Dunkel inference in concluding that FTM had contravened s 45 of the FW Act by underpaying the Massage Therapists, or that this conclusion was in any way influenced by the primary Judge's adverse assessment of any of the evidence adduced as part of Mr Elvin's case.

360    The primary Judge also found that Mr Elvin was knowingly concerned in FTM's underpayment contraventions. In that regard, the primary Judge found that Mr Elvin had actual knowledge of the essential elements of each of those contraventions and that he was practically implicated or involved in, or connected to, them: Liability Judgment at [786]. Having regard to the primary Judge's reasons at [787] to [796] of the Liability Judgment, that finding was based on the following factors:

(1)    Mr Elvin was the person who was in control of FTM and was its 'directing mind and will, its centre and ego, and its brains': Liability Judgment at [787]; citing Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 190 (Lord Pearson).

(2)    Mr Elvin had made admissions to a Fair Work Inspector in an email dated 12 September 2016 about his extensive responsibilities within FTM.

(3)    Mr Elvin had made admissions in his defence about his knowledge of FTM's trading hours, as well as the hours that the Massage Therapists worked, the amounts they were paid and the fact that they each had accrued untaken annual leave at the time their employment with FTM ended.

361    The primary Judge also found, based on Mr Elvin's own evidence, that he:

(1)    knew that the FW Act and the FW Regulations applied to the employment of the Massage Therapists, and that he knew of the National Employment Standards (NES) and had some understanding of those standards;

(2)    prepared and signed the contracts of employment with the Massage Therapists, that he was responsible for creating or authorising the creation of the employment records kept by FTM, that he was the person who created or authorised the creation of the pay records, and that he was the person who caused the pay records to be provided to the Ombudsman;

(3)    made all the critical decisions associated with the business and that Mr Puerto and the other managers acted under his direction;

(4)    had access to all the information systems of FTM and the hours of work recorded in the payroll system were based on what he told the Massage Therapists to do;

(5)    checked that the hours of work had been accurately entered into the payroll system, authorised the amounts paid to the Massage Therapists each fortnight and had responsibility for signing off on the payroll; and

(6)    knew that, any time worked outside 38 hours a week was overtime, the Massage Therapists were not paid public holiday rates as prescribed by their contracts, and overtime rates had to be paid because he did not have an individual flexibility arrangement.

362    The primary Judge also found that, despite Mr Elvin's evidence to the contrary, he knew that the Massage Therapists were covered by an award which prescribed minimum rates and that at all relevant times he believed that was likely to be the Health Award.

363    Again, it may be seen that the reasoning process that the primary Judge adopted in arriving at her conclusion that Mr Elvin was knowingly concerned in FTM's contravention of s 45 of the FW Act by underpaying the Massage Therapists did not in any way involve the drawing of a Jones v Dunkel inference. However, the fact that the primary Judge rejected Mr Elvin's evidence concerning his knowledge that the Massage Therapists were covered by an award is a matter that must be given further consideration.

364    As the primary Judge later explained in a different case, Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201 (DTF World) at [258] to [263], there exists an unresolved question about the degree of knowledge required to be knowingly concerned in the contravention of an award. In that regard, it has been held on the one hand that an accessory must have known that the particular award that was contravened applied to the relevant employees: Potter v Fair Work Ombudsman [2014] FCA 187 at [80] to [81]; Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [44]; and Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [188]. On the other hand, the view has been expressed that where the contravention is a failure to pay award rates, an accessory must know what rates are being paid but need not know that the rates which were paid were below the rates prescribed by the applicable award, since an accessory does not have to appreciate that the conduct is unlawful: Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 (Grouped Property Services) at [1019]. See also the cases referred to in Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705 at [299].

365    Neither party to the appeal raised any issue about the degree of knowledge that is required to be knowingly concerned in the contravention of an award. Accordingly, it would be inappropriate for me to attempt to finally resolve that issue here. In the circumstances, whether the relevant failure to warn Mr Elvin of the risk of that a Jones v Dunkel inference might be drawn was a material error in the context of the primary Judge's finding that he was knowingly concerned in FTM's contravention of s 45 of the FW Act should be determined based on the view of the law that was taken by the primary judge at the trial that was had.

366    Although the primary Judge did make findings about Mr Elvin's knowledge of the Health Award, I am of the view that the decision that she reached concerning his liability could not have been any different had she reached a different conclusion concerning Mr Elvin's knowledge. The primary Judge had previously expressed the view in Grouped Property Services at [1019] that:

[w]here the contravention is a failure to pay award rates, an accessory must know what rates are being paid but need not know that the rates which were paid were below the rates prescribed by the applicable award.

367    Then, after dealing with Mr Elvin's case, the primary Judge once again expressed the same view in DTF World (at [262] to [263]), where she said that she adhered to what she had said in Grouped Property Services. In those circumstances, I infer that the primary Judge only made findings about Mr Elvin's knowledge out of an abundance of caution. It is, in my view, therefore inevitable that the primary Judge would have reached the same conclusion about Mr Elvin's liability, even if she had not been satisfied that he knew the Massage Therapists were covered by an award.

368    The primary Judge also found that FTM had contravened the NES and that it had therefore contravened s 44(1) of the FW Act by not paying out untaken annual leave, contrary to s 90(2) of the FW Act. At [450] to [451] of the Liability Judgment, her Honour explained that she reached this conclusion based on admissions that were made in FTM's defence. Accordingly, there is no basis for concluding in this context that the errors that I have identified were material.

369    In finding that Mr Elvin was knowingly concerned in this contravention, the primary Judge said at [798] of the Liability Judgment:

Since Mr Elvin admitted that he knew that each of the Therapists had accrued untaken annual leave at the time their employment with FTM ended, that he determined what they should be paid and he approved their annual leave, he was knowingly concerned in these contraventions.

370    In these circumstances it is obvious that, the primary Judge concluded that FTM had contravened s 44(1) of the FW Act by not paying out untaken annual leave, and that Mr Elvin was knowingly concerned in that contravention, and that her Honour did so without relying on any Jones v Dunkel inference to reach those conclusions. Further, as the primary Judge's reasoning was based on her acceptance of Mr Elvin's evidence it also follows that there was no realistic possibility that any evidence that Mr Elvin might have adduced as part of his case, had he been warned of the risk of a Jones v Dunkel inference being drawn, could have affected the outcome in this respect.

Additional contraventions of the NES

371    The primary Judge found that FTM had contravened a provision of the NES, and that it had therefore contravened s 44(1) of the FW Act, by:

(1)    requiring the Massage Therapists to work unreasonable hours over and above 38 hours a week contrary to s 62(1) of the FW Act; and

(2)    failing to give each of the Massage Therapists the Fair Work Information Statement (Statement) as required by s 125(1) of the FW Act.

372    Her Honour also found that Mr Elvin was knowingly concerned in those contraventions.

373    The primary Judge gave detailed reasons for concluding that FTM had required the Massage Therapists to work unreasonable hours over and above 38 hours a week at [456] to [495] of the Liability Judgment. Her Honour commenced by noting that it was common ground that although their contracts of employment provided that their working hours were to be between 10.00 am to 10.00 pm, Monday to Sunday, the Massage Therapists were present at the Belconnen shop during those hours either working or available for work save for periods when they took authorised breaks. The primary Judge also observed that FTM had admitted that the average hours of work were well in excess of 38 hours per week.

374    It is apparent from the primary Judge's reasons in the Liability Judgment that there was an issue at the trial about whether the Massage Therapists were required to attend to washing, folding and other duties in between massaging clients. Although it is not entirely clear from the primary Judge's reasons why that was an issue, it appears from the Ombudsman's written closing submissions that this issue was first raised by Mr Elvin in his evidence. I infer that Mr Elvin contended that the Massage Therapists had not performed those other tasks in support of an argument that they were not engaged in 'work', for the purposes of s 62(1) of the FW Act, for more than 38 hours per week.

375    In this context the primary Judge said, at [460] of the Liability Judgment, that:

In cross-examination Mr Elvin denied that they had other responsibilities with the exception of making and remaking beds. He said that it was Mr Puerto's job to mix the oils. But there was no evidence from Mr Puerto to support him.

(emphasis added)

376    Having particular regard to the emphasised part of the primary Judge's reasons, it may be accepted that a Jones v Dunkel inference was drawn and that it was material to the primary Judge's assessment of Mr Elvin's evidence that the Massage Therapists did not engage in washing, folding and other duties between massaging clients. It may also be accepted that there is a realistic possibility that, had Mr Elvin called Mr Puerto to give evidence at the trial, the primary Judge's assessment of Mr Elvin's evidence relating to that issue could have been different. However, it does not follow from this that the primary Judge's ultimate conclusion that FTM contravened s 62(1) of the FW Act could realistically have been different. This is because, at [465] to [466] of the Liability Judgment, her Honour articulated a further and independent reason as to why she found the Massage Therapists had worked more than 38 hours per week:

In any event, it matters not whether the Massage Therapists were actually performing cleaning and washing tasks in between massages, as it was common ground that throughout the time the shop was open the Massage Therapists were required to be available to walk-in customers.

As the Ombudsman submitted, the Massage Therapists were 'working' for the purposes of s 62(1) when FTM required them to be 'available' to work throughout the day and they were ready, willing and able to perform the work.

(emphasis added)

377    However, the primary Judge also found that FTM had failed to prove that the hours worked by the Massage Therapists were reasonable, for the purposes of s 62(1) of the FW Act. As the primary Judge noted at [474] of the Liability Judgment, the effect of s 62(1) is that requiring or requesting a full-time employee to work more than 38 hours per week is prima facie unreasonable but there is an exception if it is reasonable for such a requirement or request to be made. FTM bore the onus of establishing that any hours that the Massage Therapists worked in excess of 38 hours per week were reasonable. In this context, the primary Judge noted at [455] of the Liability Judgment that the length and frequency of breaks given to the Massage Therapists while working was relevant to the question of whether the requirement that they work hours over and above 38 hours per week was unreasonable.

378    The primary Judge recorded at [483] of the Liability Judgment that the Massage Therapists gave evidence that they usually took one to two breaks of 30 minutes each per day, except when the shop was busy. However, it appears from [484] to [487] of the Liability Judgment that it was Mr Elvin's position that there were schedules for the Massage Therapists to take breaks, that the therapists should only have done six massages per day with a 30 minute break between each massage, that the receptionists were trained to ensure that breaks were given and that mistakes only occurred '[once] in a blue moon'. Mr Elvin also gave evidence that there were guidelines for the receptionists to follow in scheduling appointments to allow for breaks, that it was up to the Massage Therapists to tell the receptionists if they were too tired to take on an appointment but that the receptionists had the final say on whether an appointment was made and had a level of discretion to not follow the guidelines in emergency situations.

379    The primary Judge did not accept Mr Elvin's evidence. However, the primary Judge's reasons do not clearly identify the precise extent to which her rejection of Mr Elvin's evidence was a factor in her ultimate conclusion that FTM failed to prove that the requirement to work more than 38 hours per week was reasonable. Nevertheless, the Ombudsman accepted at trial it was relevant for the primary Judge to consider Mr Elvin's evidence when determining whether the requirement to work additional hours was unreasonable. The primary Judge also spent some time dealing with this issue in her reasons. In those circumstances, I am driven to the view that there is a realistic possibility that had Mr Elvin been warned before he closed his case about the risk of a Jones v Dunkel inference being drawn there is a realistic possibility that he may have adduced additional evidence, including from Mr Puerto and the receptionists. Such evidence may have affected the primary Judge's assessment of Mr Elvin's evidence about this issue, and hence her findings that FTM contravened s 62(1) of the FW Act and that Mr Elvin was knowingly concerned in that contravention.

380    The primary Judge's reasons for finding that FTM had failed to give a Statement to each of the Massage Therapists appear at [499] to [506] of the Liability Judgment. What those reasons reveal is that the primary Judge observed that although the Massage Therapists' contracts of employment stated that they would be given a copy of a Statement, there was no evidence to indicate that they had been. In that regard, her Honour observed that all of the Massage Therapists had given evidence that they had not been given the Statement, there was evidence that the Ombudsman had not obtained any evidence during her investigation that the Statement had been provided and that Mr Elvin admitted in his defence that a Statement had not been provided to any of the Massage Therapists.

381    The primary Judge also rejected the evidence Mr Elvin gave in cross-examination that a Statement had been put on the wall in the FTM staff room having regard to, amongst other things, the adverse opinion she had formed about his credibility and the fact that this was a belated claim. However, it is also clear that the primary Judge reached the view that, even if a Statement had been posted on the staff room wall as Mr Elvin alleged, FTM would still have contravened s 125(1) of the FW Act. As the primary Judge explained at [501] to [505] of the Liability Judgment, she formed the view that posting a Statement on a wall did not amount to 'giving' it to employees as is required by s 125(1). Accordingly, the errors that I have identified were not material to the primary Judge's finding that FTM had contravened s 125(1) of the FW Act.

382    Insofar as Mr Elvin's personal liability was concerned, the primary Judge found at [803] to [805] of the Liability Judgment that he was knowingly concerned in FTM's contraventions of s 125(1). As the primary Judge explained, this was because she was satisfied that Mr Elvin knew that employers were required to provide employees with a Statement because he had admitted as much in cross-examination. The primary Judge also relied on the fact the contracts of employment Mr Elvin had drafted for the Massage Therapists expressly referred to a Statement and to the obligation to provide it to new employees, as well as on Mr Elvin's admissions in his defence that he knew that FTM had not provided a Statement to the Massage Therapists. It follows that the errors that I have identified were not material to the primary Judge's finding that Mr Elvin was knowingly concerned in FTM's contravention of s 125(1) of the FW Act.

Claims relating to other terms and conditions of employment

383    The primary Judge found that FTM contravened s 323(1) of the FW Act by failing to pay the Massage Therapists in full in relation to the performance of work. In reaching that conclusion, the primary Judge found that FTM had not established that any of the exceptions to the prohibition in s 323(1)(a) that are provided for in s 324(1), applied.

384    Her Honour said, at [511] of the Liability Judgment, that there was no dispute that the Massage Therapists borrowed money, that money was deducted from their wages and that some of the pay slips referred to deductions being made for 'staff loans'. Further, Her Honour noted at [514] of the Liability Judgment that FTM had admitted in its defence that the deductions as alleged by the Ombudsman had been made and that it had not pleaded that any of the exceptions in s 324(1) applied. On that basis, the primary Judge said that the Court was entitled to infer that none applied, having regard to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; (2019) 269 FCR 262 at [112].

385    However, at [515] of the Liability Judgment, the primary Judge said:

In any case, as any of the matters listed in s 324(1) would enable the respondents to 'avoid' the Ombudsman's claims, the burden of proving that an exception applies rested with the respondents and the respondents did not discharge that burden. No evidence was adduced to suggest, let alone prove, that any of the exceptions was engaged. FTM produced no documents to the Ombudsman evidencing that any of the Massage Therapists provided written authorisation for the deductions to be made from their wages. The record or records made by Mr Puerto in the Philippines were not tendered. In his affidavit Mr Elvin said the loans were repaid by deductions from the Therapists' wages and '[t]his was managed by my book keeper'. No evidence was adduced from the book keeper so a Jones v Dunkel inference is available. As it happened, however, direct evidence emerged at the hearing to defeat a possible defence. In cross-examination Mr Elvin testified that there was no written agreement documenting the loans and no signed authorisations had been given by any of the Massage Therapists.

386    It may be seen that the primary Judge drew a Jones v Dunkel inference from the absence of evidence from FTM's bookkeeper, in the process of determining whether any of the exceptions in s 324(1) applied. As I have already explained, that constituted a denial of procedural fairness. The question that arises, however, is whether that was a material error.

387    In my view there are three reasons why it was not a material error. Firstly, as the primary Judge said at [514] of the Liability Judgment, FTM did not plead that any of the exceptions in s 324(1) applied and that it was therefore open to infer that none applied. Secondly, the primary Judge said that '[n]o evidence was adduced to suggest, let alone prove, that any of the exceptions [were] engaged'. Thirdly, the final two sentences in [515] of the Liability Judgment demonstrate that Mr Elvin gave direct evidence to 'defeat a possible defence'. When read in context, the reference to a 'possible defence' must have been a reference to an exception under s 324(1). In those circumstances, an inference that any evidence given by FTM's bookkeeper (or any other witness) would not have assisted FTM's (or Mr Elvin's) case that deductions were made to the Massage Therapists' wages by a bookkeeper, could not have affected the primary Judge's finding that none of the exceptions in s 324(1) of the FW Act applied or that FTM had contravened s 323(1).

388    The same conclusion may be reached when considering whether the primary Judge's error in failing to warn Mr Elvin before he closed his case about the potential for a Jones v Dunkel inference to be drawn from his failure to call Mr Puerto or, in the context of FTM's alleged contraventions of s 323(1), of his failure to call FTM's bookkeeper. The evidence adduced from Mr Elvin in cross-examination meant that there was no realistic possibility that the primary Judge could have reached a different decision other than that FTM had contravened s 323(1).

389    The primary Judge found that Mr Elvin was knowingly concerned in FTM's contravention of s 323(1) of the FW Act, for the following reasons, at [807] of the Liability Judgment:

In para 76 of his amended defence Mr Elvin said that '"staff loan" repayments were accurately recorded on employee payslips'. In substance, that was an admission that he knew that the deductions for 'staff loans' recorded on the pay slips had been made. In the absence of a plea and proof that the deductions were permitted in accordance with s 324, Mr Elvin has no defence to this aspect of the Ombudsman's case. In any case, in cross-examination he admitted that the details of the loans were not documented and that he had never obtained written authorisations for the deductions.

390    It is obvious from those reasons that no Jones v Dunkel inference was separately drawn in reaching the conclusion that Mr Elvin was knowingly concerned in FTM's contravention of s 323(1). Further, putting to one side the pleading difficulties identified by the primary Judge, Mr Elvin's own evidence meant that there was no realistic possibility that the primary Judge could have reached a different decision other than that he was knowingly concerned in FTM's contravention of s 323(1).

391    The primary Judge also found that FTM contravened s 325(1) of the FW Act by requiring the Massage Therapists to spend part of their wages, which requirement was unreasonable in the circumstances. It is unnecessary to summarise the primary Judge's detailed reasons for reaching that conclusion. This is because a Jones v Dunkel inference was drawn from Mr Elvin's failure to call Mr Puerto as a witness and the drawing of that inference was material to the primary Judge's conclusion that FTM had unreasonably required the Massage Therapists to spend part of their wages, as the following passages taken from the primary Judge's reasons in the Liability Judgment very clearly demonstrate.

392    The first of those passages appears at [533] of the Liability Judgment, immediately under the heading 'Consideration':

The claim that FTM contravened s 325(1) by requiring the therapists to repay in cash money they had earned, which the Ombudsman referred to as 'the cashback contraventions', were hotly disputed. Nevertheless, I am satisfied that the claim has been proved. In short, the evidence given by the Therapists supports the claim. The evidence is consistent with the bank records. Mr Puerto was well placed to have rebutted the evidence if it were false, but he did not. And none of the conditions that enable an employer to make deductions from wages was satisfied.

(emphasis added)

393    It may be seen that the primary Judge identified that one of the reasons why she found that FTM had contravened s 325(1) of the FW Act by requiring the Massage Therapists to repay cash (which contraventions were referred to by the primary Judge as the 'cashbacks' or 'cashback payments') was that Mr Puerto was well placed to have rebutted the evidence given by the Massage Therapists that they were required to spend part of their wages, if it were false, but he did not. As it was Mr Elvin's case that the evidence given by the Massage Therapists about this issue was false, the primary Judge must be taken to have drawn an inference that Mr Puerto's evidence would not have assisted Mr Elvin's case.

394    That the primary Judge did draw a Jones v Dunkel inference based on Mr Elvin's failure to call Mr Puerto as a witness is confirmed by what she said later in the Liability Judgment at [551]:

According to their file notes Mr Puerto apparently informed the inspectors at the site visit that employees never gave him cash. But against the sworn evidence of the Massage Therapists and in view of his unexplained failure to give sworn evidence to contradict them, I give this evidence no weight.

(emphasis added)

395    In those circumstances the primary Judge's decision that FTM contravened s 325(1) of the FW Act could realistically have been different had such an inference not been erroneously drawn. As the primary Judge found that Mr Elvin was knowingly concerned in that contravention it follows that this error was also material to the primary Judge's finding that Mr Elvin was knowingly concerned in FTM's contravention of s 325(1).

Record keeping claims

396    The primary Judge found that FTM contravened s 535(1) of the FW Act by failing to make and keep records that:

(1)    specified the number of overtime hours worked by each of the Massage Therapists or their start and finish times of overtime hours worked, as prescribed by reg 3.34 of the FW Regulations;

(2)    set out the periods of annual leave taken by the Massage Therapists and the balance of their entitlement to annual leave from time to time, as prescribed by reg 3.36(1); and

(3)    set out the nature of the termination of the Massage Therapists' employment, as prescribed by reg 3.40.

397    The primary Judge explained that in 2016, various records were produced to the Ombudsman by FTM's administrators and Mr Elvin. However, the primary Judge found that the leave and pay records that were produced as part of those records did not record any of the following information:

(1)    the number of overtime hours worked by each employee or the start and finish time of overtime hours worked, as required by reg 3.34;

(2)    the periods of annual leave taken by the Massage Therapists and the balance of their entitlement to annual leave from time to time, as required by reg 3.36(1); or

(3)    the nature of the termination of the employment of the Massage Therapists, as required by reg 3.40.

398    It may be seen, therefore, that the primary Judge did not use any Jones v Dunkel inference in reaching those conclusions. Further, any error in failing to warn Mr Elvin before he closed his case about the potential consequence of not having called Mr Puerto or any other witness was not material to the primary Judge's findings that FTM had contravened regs 3.34, 3.36(1) or 3.40 of the FW Regulations.

399    The primary Judge found that Mr Elvin was knowingly concerned in each of FTM's contraventions of regs 3.34, 3.36(1) and 3.40. The reasons that were given for making those findings, at [814] to [816] of the Liability Judgment, were that Mr Elvin:

(1)    knew that the Massage Therapists were ready, willing and able to work in excess of 38 hours a week, knew the hours they attended the workplace, and knew there were no records of the overtime hours they worked as required by reg 3.34;

(2)    must have known that the Massage Therapists had some annual leave owing at the end of their employment and that they were not paid for it because he was responsible for creating or authorising the creation of the pay records, the FTM bookkeeper worked under his supervision, and he checked the relevant FTM records to make sure the Massage Therapists' hours of work were accurately entered into the payroll system; and

(3)    was responsible for creating the employment records kept by FTM and it was his ultimate responsibility to ensure that they complied with the legislative requirements.

400    Again, none of that reasoning involved drawing a Jones v Dunkel inference. Further, any failure to warn Mr Elvin before he closed his case about the potential consequence of his failure to call Mr Puerto or any other witness was not material to the primary Judge's findings that Mr Elvin was knowingly concerned in these contraventions.

401    The primary Judge also found that FTM contravened regs 3.44(1) and 3.44(6) of the FW Regulations. Regulation 3.44(1) placed an obligation on an employer to ensure that a record that the employer was required to keep under the FW Act or the FW Regulations was not false or misleading to the employer's knowledge. Regulation 3.44(6) prohibited the use of an entry in a relevant employee record made and kept by an employer knowing that the entry is false or misleading. In my view, the primary Judge's reasons at [581] of the Liability Judgment demonstrate that those findings depended upon an earlier finding that the Massage Therapists had been required to make 'cashback payments' that was made in the context of the Ombudsman's case that FTM had contravened s 325(1) of the FW Act:

It was not in dispute that the pay records relating to [several Massage Therapists] during the periods in which they were allegedly required to repay in cash $800 a fortnight from their wages did not mention any such payments or reflect them in the net amounts. They merely record the amounts they were paid before the cash repayments were made. As I have found that the allegations were made out, it follows that the pay records were false or misleading as to the net amounts paid because they did not refer to, or reflect, the effect of the repayments. Mr Elvin knew that the entries in the pay records were false or misleading because he knew exactly what money was paid out to the Therapists and what was returned. His knowledge is attributable to FTM (FW Act, s 793). It follows that the records were not merely false or misleading on this account but they were knowingly false or misleading.

(emphasis added)

402    I have already said that the primary Judge drew a Jones v Dunkel inference in deciding that FTM contravened s 325(1) of the FW Act by requiring 'cashback payments', and that this decision could realistically have been different had such an inference not been drawn. In my view and having regard to what the primary Judge said at [581] of the Liability Judgment, the same conclusion must be reached in relation to the primary Judge's decision that FTM had contravened regs 3.44(1) and 3.44(6) of the FW Regulations.

General protection claims

Adverse action claims

403    The primary Judge found that the Ombudsman had established two adverse action claims against FTM. The first of those claims was that FTM took adverse action against each of the Massage Therapists to prevent them from exercising their workplace rights, contrary to s 340(1)(b) of the FW Act. By this claim the Ombudsman alleged that Mr Elvin had made threats to the Massage Therapists to take reprisals, by sending them home to the Philippines if they reported their working conditions to the authorities. The second claim was one of unlawful discrimination contrary to s 351 of the FW Act.

404    One of the critical issues the primary Judge was required to consider in the context of the first general protection claim was whether FTM had made threats to the Massage Therapists.

405    Two groups of massage therapists had arrived in Australia - the first on 19 June 2012 and the second on 13 April 2013. The primary Judge observed at [629] of the Liability Judgment that evidence had been given by all the Massage Therapists who were in the 'first group' that they had been threatened by FTM. It is unnecessary to refer to all of the primary Judge's findings concerning the issue of whether FTM made the alleged threats to the Massage Therapists who were in the 'first group'. That is because what was said at [630] of the primary Judge's reasons makes it abundantly clear that a Jones v Dunkel inference was drawn in reaching a conclusion that those threats were made:

The evidence was that these threats were made by Mr Elvin and conveyed to them in their first language by Mr Puerto. As I have explained, in the absence of evidence from Mr Puerto, the evidence of the Massage Therapists, which he might have contradicted, can be accepted more readily. At no point did Mr Elvin suggest, and there is no evidence to indicate, that Mr Puerto did not faithfully interpret Mr Elvin's words or that Mr Puerto was acting as a rogue agent. In these circumstances, it is particularly significant that Mr Puerto failed to give evidence to contradict the evidence of the Massage Therapists and corroborate Mr Elvin. The inference is irresistible that the evidence he could have given would not have assisted FTM or, for that matter, Mr Elvin.

(emphasis added)

406    The Ombudsman also alleged that FTM had made other threats to the Massage Therapists, namely, that their families would be killed if FTM was reported to the Department of Immigration and Border Protection. Those threats were not relevant to the claims under s 340(1)(b) but were relied on as constituting contraventions of ss 351 and 353, to which I will shortly come. However, the primary Judge made findings about whether those threats had been made in the course of dealing with the claims made under s 340(1)(b) because they were alleged to have been made on some occasions contemporaneously with the threats to send Massage Therapists home to the Philippines.

407    Again, it is unnecessary to provide a detailed summary of the primary Judge's reasons for concluding that such threats had also been made. At [649] of the Liability Judgment, the primary Judge said:

Having regard to the consistency of the evidence given by the Massage Therapists, their demeanour under cross-examination, Mr Elvin's propensity to lie when it suited him, Mr Puerto's silence, and the evidence of an obvious motive to make the statements attributed to him, I am satisfied that the allegations that Mr Elvin threatened to send them back to the Philippines if they informed 'immigration' of their working conditions and to have their families killed have been proved to the requisite standard.

(emphasis added)

408    As the emphasised words demonstrate, a Jones v Dunkel inference was also drawn in reaching the conclusion that FTM made threats to the Massage Therapists who were in the 'first group' that their families would be killed if FTM was reported to the relevant authorities.

409    Insofar as the Massage Therapists who were in the 'second group' were concerned, the primary Judge noted that none of them had given evidence that threats were made to kill their families. However, the primary Judge observed that each had said that they were told they would be sent to the Philippines if they broke the rules or if they told 'immigration' the truth about their working conditions. Moreover, the primary Judge found that a threat does not have to be conveyed directly to a particular employee and that those in the 'second group' had all become aware of the threats. Importantly, the primary Judge found that the threats made to the 'first group' were communicated in circumstances in which they were at least likely to reach other therapists, including those in the 'second group'. Accordingly, it is plain that the primary Judge relied on the findings she had made in relation to the Massage Therapists in the 'first group' in reaching her findings about whether threats were made to the Massage Therapists in the 'second group'.

410    Given the reasoning process that was adopted by the primary Judge, as I have explained it, in concluding that the Ombudsman had established its first general protection claim under s 340(1)(b) of the FW Act, it is plain that the primary Judge's decision in that respect could realistically have been different had a Jones v Dunkel inference not been drawn.

411    The primary Judge also found that Mr Elvin was knowingly concerned in FTM's contravention of s 340(1)(b). That finding necessarily relied on the same reasoning that led to the conclusion that FTM had contravened s 340(1)(b). In any event, the primary Judge said at [823] of the Liability Judgment that '[a]s it was Mr Elvin who made the threats, it follows that he was knowingly concerned in these contraventions'. It follows that this decision could also realistically have been different had the Jones v Dunkel inference not been drawn.

412    The second general protection claim was one of unlawful discrimination contrary to s 351 of the FW Act. The Ombudsman alleged that FTM took adverse action against the Massage Therapists, during their employment, within the meaning of Item 1(b) in the table to s 342(1) of the FW Act, in that it injured them in their employment by:

(1)    failing to pay them minimum hourly rates;

(2)    requiring them to make fortnightly cash repayments from their earnings;

(3)    failing to pay them public holiday rates;

(4)    failing to pay them Monday to Saturday overtime rates;

(5)    failing to pay them Sunday overtime rates;

(6)    failing to pay their annual leave entitlements on termination;

(7)    failing to pay them in full by reason of the unauthorised deductions;

(8)    requesting or requiring them to work unreasonable additional hours;

(9)    making the threats to send them back to the Philippines or have their families killed if they complained about their working conditions and instructing them not to discuss with, or complain about, those conditions to anyone; and/or

(10)    causing the gates at the premises where the Massage Therapists were residing to be locked overnight, thereby curtailing their movement outside working hours.

413    The primary Judge ultimately found that, other than in relation to the allegation that the gates outside the residence where the Massage Therapists were living were locked overnight, FTM took all of the other action because of the Massage Therapists' race, national extraction and/or social origin, contrary to s 351(1) of the FW Act. However, in reaching that conclusion, the primary Judge said at [742] of the Liability Judgment that '[f]or the reasons given earlier, I take [Mr Elvin's] denials [that he had taken that action because of the race or national extraction of the Massage Therapists] with a grain of salt. I can place no reliance on his evidence'. The primary Judge also said, at [744] of her reasons, that '[b]y force of s 793(2) of the FW Act, Mr Elvin's actions are taken to be FTM's reasons'. The effect of s 793(2) of the FW Act is that if it is necessary to establish the state of mind of a company in relation to particular conduct, it is enough to show that the conduct was engaged in by an officer of the company and the person had that state of mind. Accordingly, the primary Judge's rejection of Mr Elvin's denials that actions were taken because of the Massage Therapists' race, national extraction and/or social origin were material to her conclusion that FTM had contravened s 351(1) of the FW Act.

414    In those circumstances it may be seen that the absence of any warning of the potential implications of Mr Elvin's failure to call Mr Puerto (or other witnesses) was a material error. As I have already said, had Mr Elvin been warned he may have taken the opportunity to adduce further evidence, including from Mr Puerto. There is a realistic possibility that such evidence may have affected the primary Judge's assessment of Mr Elvin's denials that actions were taken because of the Massage Therapists' race, national extraction and/or social origin.

Coercion claims

415    As I have already said, the primary Judge found that FTM threatened to send the Massage Therapists back to the Philippines or arrange to kill their families if they made a complaint about their working conditions. The primary Judge also found that those threats were made with the intent to exert pressure on the Massage Therapists, which negated their practical choice as to whether or not to exercise their workplace right to make a complaint or inquiry in relation to their employment, contrary to s 343(1).

416    At [771] of the Liability Judgment, the primary Judge said that:

For the reasons given at [627]-[669] above in relation to the corresponding adverse action claim, all of the elements in s 343(1) have been established to the requisite standard of proof.

417    As the passages to which I have referred earlier in these reasons at [404] and [406] form part of the primary Judge's reasons given at [627] to [669] of the Liability Judgment, it is clear that the primary Judge drew a Jones v Dunkel inference based on Mr Elvin's failure to call Mr Puerto as a witness in reaching the conclusion that FTM had contravened s 343(1) of the FW Act. In those circumstances, I am of the view that the primary Judge's decision in that regard could realistically have been different had such an inference not been erroneously drawn.

418    The primary Judge also found at [828] of the Liability Judgment that Mr Elvin was knowingly concerned in FTM's contravention of s 343(1). As the primary Judge's finding that FTM had contravened s 343(1) was a necessary step in reaching that conclusion, it follows that this decision could also realistically have been different had a Jones v Dunkel inference not been drawn.

Conclusions

419    It follows from my above reasons that I would allow ground A in part, but dismiss the remaining grounds of appeal on which Mr Elvin relies.

420    The primary Judge did not make any substantive orders until she published her reasons in the Penalty Judgment. Although Mr Elvin's appeal understandably focused on the findings that were made in the primary Judge's earlier reasons in the Liability Judgment, an appeal is against orders. The orders made on 10 May 2024 in the Penalty Judgment were as follows:

THE COURT DECLARES THAT:

1.    During various periods from 24 June 2012 until 16 June 2016 inclusive, [FTM] contravened:

(a)    s 45 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay each of Irene Amacio (Ms Amacio), Crisanta Bantilan (Ms Bantilan), Ruben Benting (Mr Benting), Delo Be Isugan (Ms Isugan), Janice Castaneda (Ms Castaneda), Mayet Ortega (Ms Ortega), and Cyrene Sarto (Ms Sarto) (collectively, the Massage Therapists) the minimum hourly rates of pay, as Health Professional Level 1 employees (HP Level 1), in accordance with cl 15.2 of, and cl A.2.5 of Schedule A to, the Health Professionals and Support Services Award 2010 (Health Award);

(b)    s 45 of the FW Act by failing to pay each of the Massage Therapists public holiday rates, as HP Level 1 employees, in accordance with cl 32.2 of, and cl A.7.3 of Schedule A to, the Health Award;

(c)    s 45 of the FW Act by failing to pay each of the Massage Therapists overtime rates for overtime work performed between Monday and Saturday as HP Level 1 employees, in accordance with cl 28.1(a) of the Health Award;

(d)    s 45 of the FW Act by failing to pay each of the Massage Therapists overtime rates for overtime work performed on Sundays, as HP Level 1 employees, in accordance with cl 28.1(b) of the Health Award;

(e)    s 44(1) of the FW Act by requesting or requiring each of the Massage Therapists to work more than 38 hours a week when it was unreasonable to do so, in contravention of s 62(1) of the FW Act;

(f)    s 44(1) of the FW Act by failing to pay each of the Massage Therapists their respective accrued untaken annual leave entitlements on termination, in accordance with s 90(2) of the FW Act;

(g)    s 44(1) of the FW Act by failing to give the Fair Work Information Statement to each of the Massage Therapists as it was obliged to do under s 125(1) of the FW Act;

(h)    s 323(1) of the FW Act by failing to pay each of the Massage Therapists in full in that it made deductions from their wages when it was not authorised to do so;

(i)    s 325(1) of the FW Act by unreasonably directing each of Ms Amacio, Ms Bantilan, Ms Isugan, Ms Castaneda, Ms Ortega and Ms Sarto to refund part of their wages to [FTM];

(j)    s 535(1) of the FW Act by failing to make and keep employee records in relation to each of the Massage Therapists, as prescribed by:

(i)    reg 3.34 of the Fair Work Regulations 2009 (Cth) (FW Regulations) in that it did not record the number of overtime hours worked by the Massage Therapists or the start and finish times of overtime hours they worked;

(ii)    reg 3.36(1) of the FW Regulations in that it did not record the periods of annual leave taken by the Massage Therapists and the balance of their entitlements to annual leave from time to time; and

(iii)    reg 3.40 of the FW Regulations in that its records did not document the manner in which the employment of the Massage Therapists was terminated;

(k)    s 536(1) of the FW Act by failing to give pay slips to each of the Massage Therapists within one working day of payment for work performed by them in that, except for three or four pay slips it provided in 2015, it did not give them any pay slips after about 31 March 2014;

(l)    s 536(2) of the FW Act by failing to ensure that the pay slips it provided to each of the Massage Therapists included the information prescribed by reg 3.46(2) of the FW Regulations;

(m)    reg 3.44(1) of the FW Regulations by making and keeping employee records in relation to each of Ms Amacio, Ms Bantilan, Ms Isugan, Ms Castaneda, Ms Ortega and Ms Sarto, knowing that those records were false or misleading in that they did not refer to the amounts they were directed to refund from their wages;

(n)    reg 3.44(6) of the FW Regulations by making use of entries in the employee records of each of Ms Amacio, Ms Bantilan, Ms Isugan, Ms Castaneda, Ms Ortega and Ms Sarto in that it provided those records to the [Ombudsman] knowing that they were false or misleading;

(o)    s 340(1)(b) of the FW Act by taking adverse action against each of the Massage Therapists by making threats to send them back to the Philippines in order to prevent them from exercising their workplace rights to make complaints in relation to their employment to the immigration authorities or the [Ombudsman];

(p)    s 343(1)(a) of the FW Act by threatening to send each of the Massage Therapists back to the Philippines and to have their families in the Philippines killed with intent to coerce them not to exercise their workplace rights to complain about their working conditions to the immigration authorities or the [Ombudsman]; and

(q)    s 351(1) of the FW Act by taking adverse action against each of the Massage Therapists because of their race and national extraction in that it:

(i)    failed to pay them minimum hourly rates;

(ii)    required them to make fortnightly cash repayments from their earnings;

(iii)    failed to pay them public holiday rates;

(iv)    failed to pay them Monday to Saturday overtime rates;

(v)    failed to pay them Sunday overtime rates;

(vi)    failed to pay their annual leave entitlements on termination;

(vii)    failed to pay them in full by reason of unauthorised deductions;

(viii)    requested or required them to work unreasonable additional hours; and

(ix)    made threats to send them back to the Philippines or have their families killed if they complained about their working conditions and instructed them not to discuss with, or complain about, those conditions to, anyone.

2.    [Mr Elvin] was knowingly concerned and therefore involved in each of the contraventions by [FTM] set out at paras 1(a) to 1(j) and 1(m) to 1(q) above.

3.    [Mr Puerto] was knowingly concerned and therefore involved in the contraventions by [FTM] set out at paras 1(e), 1(g) to 1(i), 1(k) and 1(o) to 1(q) above.

4.    After credit is given for the amounts paid by Deloitte Touche Tohmatsu on or about 19 July 2017, [FTM] underpaid the Massage Therapists by the following amounts (the underpayments):

(a)    Ms Amacio by $159,799.21;

(b)    Ms Bantilan by $152,200.47;

(c)    Mr Benting by $140,307.06;

(d)    Ms Isugan by $149,331.13;

(e)    Ms Castaneda by $120,055.56;

(f)    Ms Ortega by $123,783.29; and

(g)    Ms Sarto by $125,615.99.

THE COURT ORDERS THAT:

1.    Pursuant to s 545 of the FW Act, within 28 days [FTM and Mr Elvin] pay the [Ombudsman] the following amounts as compensation for the contraventions:

(a)    $971,092.27, being the total of the above underpayments;

(b)    $30,000 for the non-economic loss suffered by Ms Amacio, Ms Bantilan, Mr Benting and Ms Isugan; and

(c)    $25,000 for the non-economic loss suffered by Ms Castaneda, Ms Ortega and Ms Sarto.

2.    [FTM and Mr Elvin] pay interest from 16 February 2016 on:

(a)    the underpayments at the rates prescribed by Practice Note GPN–INT; and

(b)    90% of the sums payable for non-economic loss.

3.    Within 28 days of receipt of any of the amounts mentioned in orders 1 and 2, the [Ombudsman] pay the amounts to the Massage Therapists or, in the event that the [Ombudsman] cannot locate one or more of the Massage Therapists or for any reason payment cannot be made to one or more of them, pay any such amount to the Commonwealth of Australia.

4.    Pursuant to s 546 of the FW Act, within 28 days:

(a)    [FTM] pay pecuniary penalties for the contraventions the subject of declaration 1 in the sum of $778,100;

(b)    [Mr Elvin] pay pecuniary penalties for the contraventions the subject of declaration 2 in the total sum of $150,140;

(c)    [Mr Puerto] pay pecuniary penalties for the contraventions the subject of declaration 3 in the total sum of $38,650.

5.    Pursuant to s 546(3)(a) of the FW Act the penalties be paid to the Commonwealth.

6.    In the event that some or all of the compensation (including interest) is not paid to the Massage Therapists in accordance with the orders for payment, the [Ombudsman] may remit to the Massage Therapists, in her discretion, all the penalties or a portion of them.

7.    The [Ombudsman] not seek to enforce against [FTM] the orders for compensation or pecuniary penalties without first obtaining the leave of the Court.

421    In order to give effect to my reasons for allowing ground A in part, I would make the following orders:

(1)    The appeal is allowed, in part.

(2)    The declaration made by the primary Judge on 10 May 2024 that:

The second respondent was knowingly concerned and therefore involved in each of the contraventions by the first respondent set out at paras 1(a) to 1(j) and 1(m) to 1(q) above.

is set aside and in substitution thereof it is declared that:

The second respondent was knowingly concerned and therefore involved in each of the contraventions by the first respondent set out at paras 1(a) to 1(d), 1(f) to 1(h), and 1(j) above.

(3)    The cross appeal is dismissed.

422    I would hear the parties as to any further orders that should be made, including whether any orders should be made varying the primary Judge's orders that Mr Elvin is to pay compensation, interest, and pecuniary penalties, and whether in all of the circumstances any of the Ombudsman's claims should be remitted for a retrial.

Associate:

Dated:    21 July 2026