Federal Court of Australia

Elvin v Fair Work Ombudsman (No 3) [2025] FCA 195

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the appellant on 9 September 2024 be dismissed.

2.    The notice to admit dated 9 September 2024 served on the first respondent on 13 September 2024 be set aside pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) and r 1.32 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

COLLIER J

1    Before me are two interlocutory applications filed in the appeal of Mr Colin Kenneth Elvin from the decision of the Federal Court in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483.

2    In the first interlocutory application, filed by the appellant (Mr Elvin) on 9 September 2024, the appellant seeks the following orders:

1.    The Appellant be granted leave pursuant to r 20.01 of the Federal Court Rules 2011 (Cth) to file and serve on the Fair Work Ombudsman a list of Interrogatories; and

2.    Answers in reply to the Interrogatories by the Fair Work Ombudsman pursuant to r 21.04 be provided by an officer of the Fair Work Ombudsman and be filed and served by the date to be determined by the Registrar.

3    In the second interlocutory application, filed by the first respondent (the Fair Work Ombudsman) on 13 September 2024, the first respondent seeks that the Court make the following orders:

1.    Pursuant to rule 1.32 of the Federal Court Rules 2011 (Cth) (Rules), the Court set aside, in the interests of justice, the entirety of the Notice to Admit dated 9 September 2024 served on the First Respondent (Notice to Admit).

2.    In the alternative to order 1, pursuant to rule 1.34 of the Rules, the Court dispense with the requirement for the First Respondent to comply with the Notice to Admit.

3.    Such other order as the Court sees fit.

4    As a Judge case-managing the appeal prior to listing of the appeal before the Full Court, I ordered that Mr Elvin and the Fair Work Ombudsman file and serve submissions in relation to both interlocutory applications and listed those applications for hearing on 13 November 2024.

5    I am satisfied that the first interlocutory application should be dismissed, and the orders sought in the second interlocutory application should be granted. I have reached this view for the following reasons.

background

6    In Elvin v Fair Work Ombudsman (No 1) [2024] FCA 1071, I set out relevant background to the proceedings as follows:

1    On 10 May 2024 Katzmann J gave final judgment in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483. The respondents were found to have contravened the Fair Work Act 2009 (Cth) in multiple respects referable to, inter alia, minimum rates of pay for employees and record keeping. Mr Elvin was the second respondent in that case, being the director of the first respondent Foot & Thai Massage Pty Ltd ACN 147 134 272, a company now in liquidation. Her Honour appointed a referee to calculate the extent of underpayment of employees’ entitlements and adopted the referee’s report (to which Mr Elvin unsuccessfully objected). Her Honour made orders including the payment of compensation, interest and pecuniary penalties by the company and Mr Elvin.

2    By Amended Notice of Appeal filed on 6 July 2024 Mr Elvin has appealed the judgment of Katzmann J given on 14 October 2021 (Liability Decision) and the final judgment given on 10 May 2024 (Penalty Decision).

3    Further, by Amended Notice of Cross-Appeal filed on 19 July 2024 the Fair Work Ombudsman appealed part of the Liability Decision and Penalty Decision, materially referable to the finding of Katzmann J that the Hair and Beauty Award did not cover and apply to relevant employees of the company.

7    Relevantly, both interlocutory applications currently before the Court concern the Fair Work Ombudsman’s decision not to make a claim against Mr Ruben Benting, a previous employee of Foot and Thai Massage Pty Ltd (in liquidation). In Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 7) [2023] FCA 1164, Katzmann J provided the relevant background to Mr Benting’s involvement in the matter at first instance as follows:

11    One of the Ombudsman’s claims, which I found proved, was that in two discrete periods Mr Elvin and the second respondent, Jun Puerto required six employees of FTM to repay FTM $800 in cash each fortnight because of a decline in the fortunes of FTM. The Ombudsman alleged, and I found, that the requirements to repay the money were contraventions of s 325(1) of the FW Act which at the time of the contraventions provided that:

An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.

12    One of the witnesses who gave evidence in the Ombudsman’s case was Ruben Benting. He was one of the employees of FTM who was allegedly underpaid. He deposed that he was required to make similar payments to FTM. I queried with the Ombudsman’s counsel during the liability hearing why no claim had been made in relation to him and was told it was “a forensic choice”.

13    It appears from the material before the Court that Mr Elvin is vexed by the Ombudsman’s forensic decision. He has pressed the Ombudsman for detail and is dissatisfied with her responses to his queries. Equally, he is vexed by the Ombudsman’s decision not to pursue a case against the respondents based on allegations by other FTM employees who made similar allegations against them. He explained that this is the reason he issued the notices.

CONSIDERATION

Interrogatories

8    Rules of Court make provision for orders for interrogatories against an historical background where pleadings were typically lengthy and complex proceedings. As Kirby P explained in Ainsworth v Hanrahan (1991) 25 NSWLR 155 at [161]-[162], Courts of Chancery sought to address defects in legal process by enabling access by litigants to documents in the possession of, or answers to questions by, an opponent. To that extent the ability of a party to serve interrogatories is a form of discovery available to a party in the course of a proceeding.

9    The power of the Court to order interrogatories is found in Part 21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). In particular, I note rr 21.01, 21.02 and 21.03 which provide:

21.01    Order for interrogatories

(1)    A party may apply to the Court for an order that another party provide written answers to interrogatories.

(2)    The application must be accompanied by an affidavit annexing the proposed interrogatories.

21.02    When application may be made

A party must not make an application under rule 21.01 until 14 days after the pleadings have closed and, if an order has been made under Division 20.2, the parties have served any lists of documents.

21.03    Answers to interrogatories

(1)     A party who is ordered to answer interrogatories must do so by filing:

(a)     written answers in accordance with:

(i)     Form 40; and

(ii)     subrules (3) and (4); and

(b)     an affidavit verifying the answers in accordance with rule 21.04.

(2)     The party must serve the documents mentioned in subrule (1) on each party who has filed a notice of address for service.

(3)     The answers must address each interrogatory:

(a)     by directly answering the substance of the interrogatory; or

(b)     by objecting to answer the interrogatory on a ground mentioned in subrule (4) and briefly stating the facts on which the objection is based.

(4)     A party may object to answering an interrogatory only on one or more of the following grounds:

(a)     that the interrogatory does not relate to an issue raised on the pleadings and in issue;

(b)     that the interrogatory is vexatious or oppressive;

(c)     privilege.

Note:    The Court will, in its order, specify the time for compliance.

10    (In the present case I note reference to rr 20.01 and 21.04 of the Federal Court Rules in Mr Elvin’s application for interrogatories. Rule 20.01 concerns documents being withheld on public interest grounds. Rule 21.04 concerns the requirement for an affidavit to be filed verifying a party’s written answers to any interrogatories ordered to be answered by the Court. The relevant rule for an application seeking an order for interrogatories would be r 21.01 of the Federal Court Rules. I will proceed on the basis that the incorrect rules were referenced by Mr Elvin in error.)

11    The interrogatories sought by Mr Elvin were particularised in his affidavit filed 9 September 2024 marked “CKE-1” as follows:

INTERROGATORIES TO FAIR WORK OMBUDSMAN

The Appellant required you to answer interrogatory questions, as follows:

1.    State and describe in detail the reason why you did not make any claim for cash backs for Ruben Benting.

2.    State and describe in detail the reason why you described the decision not to claim cash backs for Ruben Benting as a “forensic choice”.

Notice to admit

12    Rule 22.01 of the Federal Court Rules enables a party to serve on another party a notice to admit, requiring the other party, for the purpose of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in the notice to admit.

13    Mr Elvin served the Fair Work Ombudsman with a notice to admit in the relevant form on 9 September 2024. The notice is annexed to the affidavit of Mr Myles Douglas Vincent filed 13 September 2024 marked “MDV-5”.

14    The notice to admit seeks admission of 26 facts, in summary, in relation to the Fair Work Ombudsman’s decision not to plead that Foot and Thai Massage Pty Ltd (in liquidation) had contravened s 325(1) of the Fair Work Act 2009 (Cth) with respect to Mr Benting, in respect of evidence adduced at the hearing at first instance, and concerning correspondence between Mr Elvin and the Fair Work Ombudsman about these matters.

15    The application to set aside the notice to admit seeks an order be made under r 1.32 of the Federal Court Rules which enables this Court to make any order it considers appropriate in the interests of justice.

Adducing further evidence on appeal

16    Mr Elvin’s application for interrogatories was made under r 21.01 which is found under Chapter 2 of the Federal Court Rules. As observed by McKerracher J in Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795 at [7], the administering and answering of interrogatories is a form of discovery, and the circumstances in which leave to administer interrogatories will be granted by the Court is increasingly rare.

17    Similarly, provision for a party to serve on another a notice to admit is made under r 22.01 which is also found under Chapter 2 of the Federal Court Rules.

18    Chapter 2 governs proceedings in the original jurisdiction of the Federal Court. The procedure for administering interrogatories and serving a notice to admit facts are tools available to litigants in primary proceedings before the Court. It is in the primary proceedings that all factual disputes are anticipated to be pleaded and subsequently determined.

19    The orders sought by Mr Elvin in his interlocutory application, and the information he seeks in his notice to admit, can be seen as an application by him to adduce further evidence in his appeal. Section 27 of the Federal Court of Australia Act 1976 (Cth) reads:

27    Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

    (a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

20    Further, r 36.57 of the Federal Court Rules provides:

36.57    Further evidence on appeal

(1)    A party may apply for the Court to receive further evidence on appeal.

(2)    The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:

(a)    briefly but specifically, the facts on which the application relies;

(b)    the grounds of appeal to which the application relates;

(c)    the evidence that the applicant wants the Court to receive;

(d)    why the evidence was not adduced in the court appealed from.

(3)    The application and the affidavit must be filed as follows:

(a)    if the appeal is to the Full Court—4 copies;

(b)    if the appeal is to a single Judge—2 copies.

(4)    Any other party to the appeal who wants to adduce evidence on the appeal must file an affidavit at least 14 days before the hearing of the appeal.

Note:    Section 27 of the Act allows the Court to receive further evidence on appeal.

21    To the extent that the Court has discretion to allow further evidence in an appeal:

    An appellant must ordinarily demonstrate that he or she could not, without reasonable diligence, have adduced the material at trial: SZQPY v Minister for Immigration and Border Protection [2013] FCA 1113 at [54].

    The proposed material must be cogent and likely to have produced a different result, had it been available at the trial: Guss v Johnstone [2000] FCA 1455 at [30].

    Given the need for finality of litigation, strong discretionary considerations weigh against the admission of further evidence: Guss v Johnstone at [43], APX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 683 at [42].

22    The matter at first instance before Katzmann J was the subject of many interlocutory applications by the parties, and resultant determinations by her Honour. In such circumstances, Mr Elvin has not demonstrated that the material he now seeks could not have been adduced at trial before her Honour, or is likely to have produced a different result had it been available at trial.

23    In my view, Mr Elvin’s interlocutory application filed on 9 September 2024 should be dismissed.

24    Rule 1.32 of the Federal Court Rules empowers the Court to make any order it considers appropriate in the interests of justice. I further note that s 37M of the Federal Court Act requires that proceedings in the Court be administered in a manner which facilitates the resolution of disputes quickly, inexpensively and efficiently. The notice to admit dated 9 September 2024 served by Mr Elvin on the first respondent on 13 September 2024 should be set aside, pursuant to s 37M of the Federal Court Act and r 1.32 of the Federal Court Rules.

Associate:

Dated:    13 March 2025