Federal Court of Australia

Ioakimidis v Lygon Court Travel Pty Ltd [2025] FCA 706

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application is dismissed.

2.    Costs reserved.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

1    This is an interlocutory application brought by the respondents seeking, first, orders dismissing the causes of action advanced by the applicant against them under the Fair Work Act 2009 (Cth) as an abuse of process, and second, leave to withdraw certain admissions made by them in their Further Amended Defence and Cross Claim. The respondents also sought the transfer of certain claims to the County Court of Victoria but abandoned that relief. Despite the respondents being the moving party in the interlocutory application, in these reasons I refer to the applicant and respondents as they are identified in the substantive proceeding.

2    The proceeding was commenced in the Federal Circuit Court in 2019. It was transferred to this Court in 2020. The proceeding in this Court was stayed by orders of Anastassiou J in August of 2021 pending the outcome of criminal proceedings against the applicant, Ms Lisa Ioakimidis. In the substantive proceeding Ms Ioakimidis says she was employed by the first respondent, Hello World Lower Templestowe (HWLT), in the position of sales travel consultant. She says she was employed pursuant to a written employment agreement and that her employment was covered by the Retail Industry Award 2010. The second and third respondents, Ms Sue Corvasce and Ms Kris Rowe are directors of HWLT. Ms Ioakimidis claims that the respondents have:

(1)    breached s 357 of the Fair Work Act by misrepresenting her employment as an independent contractor arrangement;

(2)    breached s 345 of the Fair Work Act by making false and misleading representations about her workplace rights (namely by representing that Ms Ioakimidis was an independent contractor);

(3)    breached their record keeping obligations under s 535 of the Fair Work Act;

(4)    breached their pay slip obligations under s 536 of the Fair Work Act;

(5)    failed to pay her accrued and untaken annual leave in breach of s 90(2) of the Fair Work Act;

(6)    failed to pay her for work on public holidays in breach of s 116 of the Fair Work Act;

(7)    failed to pay her accrued and untaken personal leave in breach of s 99 of the Fair Work Act;

(8)    failed to pay her annual leave loading in breach of the Award and s 45 of the Fair Work Act;

(9)    failed to pay her superannuation in breach of the Award or alternatively in breach of the employment agreement;

(10)    failed to pay her commission entitlements in breach of the employment agreement;

(11)    failed to pay her reasonable notice of the termination of her employment in breach of the employment agreement; and

(12)    taken adverse action against her (including her dismissal) because she exercised certain workplace rights (namely making complaints or inquiries in relation to her employment) and thereby contravened s 340 of the Fair Work Act.

If the respondents are successful in their interlocutory application only those allegations at (9), (10) and (11) would remain for determination, subject to any further amendment by Ms Ioakimidis. In the substantive proceeding Ms Ioakimidis seeks declarations, compensation and pecuniary penalties for breaches of the Fair Work Act. She also seeks payments of debts, or alternatively damages, for breaches of the employment agreement. The respondents make a cross-claim seeking monies they say are owed by Ms Ioakimidis to HWLT as the result of travel and trips organised by Ms Ioakimidis and overpayment of commission by HWLT.

3    The claims made by Ms Ioakimidis arise from her status as an employee of HWLT. In their Further Amended Defence and Cross Claim the respondents admit that Ms Ioakimidis was an employee of HWLT from July 2014 to September 2019. It is that admission that the respondents now seek to withdraw.

4    The circumstances surrounding the termination of Ms Ioakimidis’ engagement by HWLT were the subject of criminal proceedings. Ms Ioakimidis was charged with a number of offences relating to theft, obtaining financial advantage by deception, obtaining property by deception and false accounting. Those charges related to, first, a group tour organised by Ms Ioakimidis in 2019 to which she invited her sister, cousin and a friend at no cost to them. Second, the transfer of money credited to the accounts of clients from a 2015 group tour organised by Ms Ioakimidis to another account. Third, the use by Ms Ioakimidis of a “cash passport” issued to her by HWLT.

5    Those charges were heard in the Magistrates’ Court of Victoria between 7 February 2022 and 11 February 2022. By judgment, delivered on 14 February 2022, Magistrate MacLean found that the charges were proved beyond reasonable doubt. Ms Ioakimidis appealed that decision to the County Court of Victoria. The appeal was heard by Moglia J between 20 March 2023 and 22 March 2023. Moglia J found that Ms Ioakimidis had no case to answer. I will refer to those proceedings together as the criminal proceedings. In the criminal proceedings, Ms Ioakimidis gave evidence (in the Magistrates’ Court) and submitted (in the County Court) that she was an independent contractor. It is that evidence and submission that the respondents submit leads to an abuse of process where Ms Ioakimidis alleges in this Court that she is an employee.

6    For the purposes of this interlocutory application the respondents rely upon three affidavits of Mr Adam Lunn dated 31 March, 22 May and 19 June 2025. Those affidavits were tendered without objection. The first and third of those affidavits annexed parts of the transcripts of the criminal proceedings. Ms Ioakimidis tendered, again without objection, a tender bundle including the complete transcripts of the criminal proceedings.

7    The substantive matter is listed for hearing for six days commencing on 14 July 2025, being 20 calendar days from today. In those urgent circumstances, I provide my reasons ex tempore. For the reasons set out below I dismiss the interlocutory application.

The Criminal Proceedings

8    The respondents’ and Ms Ioakimidis’ submissions contain different interpretations of what took place in the criminal proceedings. It is helpful at the outset for me to summarise the parties’ submissions and provide my assessment of those proceedings.

9    The respondents submit that the transcripts of the criminal proceedings demonstrate that Ms Ioakimidis understood that she was an independent contractor and not an employee, and that her no case submission in the County Court was premised on that position. They say Ms Ioakimidis’ counsel in the County Court made submissions and cross-examined on a “case theory” that Ms Ioakimidis “ran her own business” and was therefore an independent contractor and not an employee. That included cross-examination of Ms Corvasce, who they say gave evidence that Ms Ioakimidis was an independent contractor. The respondents submit that Ms Ioakimidis’ case theory was that she was as an independent contractor, had the authority to engage in the conduct the subject of the charges, and therefore no relevant dishonesty had been established by the prosecution.

10    The respondents submit that case theory is important in understanding the conclusion reached by Moglia J. They place particular emphasis on that part of his Honour’s reasons where he said: “Ms Ioakimidis was given free rein to conduct the group travel part of the Helloworld business. She did so as a contractor”. The respondents say that the way Ms Ioakimidis put her case required his Honour to decide whether she was an employee or independent contractor as a prerequisite to finding she was a “contractor” with “free rein” or “authority” to make the arrangements that she did as part of the group travel in 2015 and 2019.

11    Accordingly, the respondents submit that Ms Ioakimidis is seeking to relitigate the issue of her employment or contractor status in the current proceeding after obtaining a finding on that matter in the County Court. The respondents submit that Ms Ioakimidis’ position in the current proceeding, that she is a national system employee (and hence entitled to make certain claims under the Fair Work Act), is irreconcilable with the position that she advanced in the criminal proceedings and is an impermissible collateral attack on the County Court’s ruling.

12    Ms Ioakimidis submits that the Magistrates’ Court and County Court were careful to avoid the issue of the proper legal characterisation of the working relationship between Ms Ioakimidis and the first respondent. She submits that Moglia J’s reference to her status as a “contractor”, in accepting her no-case submission, was not indispensable to his Honour’s conclusion. Ms Ioakimidis submits that the findings of Moglia J concerning the lack of proof of dishonesty stem from a “gap in the evidence” which did not concern Ms Ioakimidis’ employment status. Ms Ioakimidis also claims that the evidence given by Ms Corvasce as to whether Ms Ioakimidis was an independent contractor or employee was ambiguous.

13    Ms Ioakimidis further submits that whether she was an employee or independent contractor was immaterial to the matters decided in the criminal proceedings, and that insofar as she gave evidence about the character of that relationship, that evidence concerned her subjective understanding of that relationship. She also submits that there is no collateral attack on the criminal proceedings because she does not challenge or impugn the result of the criminal proceedings, and to the extent Ms Ioakimidis’ position in the proceeding is inconsistent with peripheral findings made in the criminal proceedings, the inconsistency falls short of establishing a collateral attack. Ms Ioakimidis submits that the question of how her relationship with the first respondent was to be objectively determined is a fundamentally different question to her subjective understanding of it at a particular time.

14    It is necessary for me to assess what Moglia J said in the County Court proceedings about Ms Ioakimidis being an employee or independent contractor, and what Moglia J was required to decide. That is a dispute between the parties and is significant for any findings I make on whether there has been an abuse of process, or whether I should grant leave to withdraw the admissions.

15    From my review of the transcripts, including the reasons, I do not consider the question of Ms Ioakimidis’ status as an employee or independent contractor was central to Moglia J’s reasoning. Indeed, during the hearing before Moglia J in the County Court he admonished the parties about “getting hung up on whether it’s [an] employee or contractor”. That appears to be equally so in the Magistrates’ Court. There, Magistrate MacLean said “[i]n this proceeding, the accused was referred to as a contractor. No submission has been made with respect to whether the accused was a contractor at law or whether she was an employee at law”.

16    Ms Ioakimidis’ status (as an employee or independent contractor) did not form any element of the criminal charges which Moglia J had to decide in the County Court. The relevant issue before the County Court was Ms Ioakimidis’ dishonesty. That matter involved arguments as to Ms Ioakimidis’ authority to engage in the conduct the subject of the charges and in those circumstances whether that conduct met the “high bar” of criminal dishonesty. That is a separate and distinct matter to her status as an employee or independent contractor.

17    As part of his Honour’s judgment he explained the following about the evidence presented by the prosecution about Ms Ioakimidis’ authority to make group travel arrangements:

There was no express limitation placed on Ms Ioakimidis authority to conduct or arrange group travel. There was no evidence of implied limit to her authority to make arrangements for group travel sufficient to exclude her subjective belief in a right to make arrangements…

…

The prosecutor very fairly conceded that it's a high bar to prove in terms of dishonesty. That is, the prosecution evidence must prove that there was a positive belief on the part of the accused that she had no legal right to make the arrangements that she did with the three travellers. Very fairly, the prosecutor also conceded that if indeed there was a gap in the evidence as to the extent of Ms Ioakimidis authority with respect to making individual arrangements in order to maintain a group's viability, then that may be fatal, and thus, the importance of the comments I made at the outset.

18    Those reasons then reached their conclusion (at least with respect to charges 3, 5 and 7 made against Ms Ioakimidis concerning the 2019 travel) as follows:

Clearly, there was a degree of trust between them all, but the consequence of that is that when it comes to applying the criminal test to whether or not it can be said beyond reasonable doubt that in circumstances where there is no policy or procedural guidance given, and no evidence of any prohibitions or limits to authority being imposed, other than a very generalised one of there being no ticket if there's no pay, which in circumstances can be overridden by the travel arranger, then whatever misgivings apply between the parties, the evidence simply does not come up to standard to say that there was necessary criminal dishonesty.

In light of the concessions made by the prosecution, and in light of my assessment of the evidence as to communication of authority, prohibitions, or policy, or the limits in policy beyond the very general statement, I find that the prosecution evidence is incapable of excluding the hypothesis that Ms Ioakimidis engaged in honest, even if it was unjustifiably honest, dealings in order to maintain the viability of the Proty 2019 trip, including by permitting the travel of the three travellers at the rates, and including at the free rate that was offered. Accordingly, charges 3, 5, and 7, there is no case to answer.

19    Those reasons do not depend on a conclusion about the status of Ms Ioakimidis as an independent contractor or employee. Those reasons make no reference to the employment status of Ms Ioakimidis at that part of the reasons. They are directed at Ms Ioakimidis’ authority to engage in the conduct she engaged in and at her dishonesty. Those conclusions could apply equally whether Ms Ioakimidis was an independent contractor or employee. I accept that Moglia J had, earlier in his reasons, made reference to Ms Ioakimidis as a “contractor”, but I do not consider that statement was fundamental to the decision arrived at or necessary to his conclusions extracted above. As explained, that statement was not raised or repeated in the consideration of the no case submission extracted above.

20    For completeness, I also conclude, first, that Ms Ioakimidis’ subjective understanding of her relationship with HWLT could not be determinative of that question. It is to be assessed according to the totality of the relationship between the parties: see Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [61] (Kiefel CJ, Keane and Edelman JJ). Second, I do not consider that Ms Corvasce’s evidence is unequivocal about whether Ms Ioakimidis was a contractor. The criminal proceedings transcript (of the County Court) records that Ms Corvasce was asked in cross-examination “[a]nd in here [the criminal proceedings], you’re saying she’s an independent contractor but also an employee?”. Ms Corvasce answered: “I didn’t say she was an independent contractor. I said she had a contract”. That answer and the surrounding answers create uncertainty. Nevertheless, that question is not to be assessed merely from the subjective understandings of the parties. It was not a question that was necessary for Moglia J to answer.

21    I will say more about the legal significance of these conclusions shortly.

abuse of process

22    The respondents sought an order dismissing the claims made under the Fair Work Act, which rely on Ms Ioakimidis being an employee, as an abuse of process pursuant to r 16.21(1)(f) of the Federal Court Rules 2011 (Cth) (or alternatively r 26.01(1)(d) of the Rules, and s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act)). The respondents say that abuse of process is occasioned because in the present proceeding, Ms Ioakimidis seeks to advance claims as an “employee” under the Fair Work Act where the characterisation of her relationship with the respondents was already determined in the criminal proceedings, and done so on the basis of Ms Ioakimidis being a contractor. The respondents also say that Ms Ioakimidis sought to rely on her status as a contractor in her “no case to answer” submission before the County Court, and her status as an independent contractor was central to her case theory in that proceeding.

23    As a result, the respondents say any findings by this Court on the legal characterisation of Ms Ioakimidis as an employee would present as a collateral attack on the findings of the County Court.

Principles on abuse of process

24    Ms Ioakimidis drew attention to the seven factors identified by Giles CJ (CommD) in State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 at 64,089 (and cited with approval in Haigh v Haddad [2025] NSWCA 28 at [65] (Ward P, Adamson JA) for considering abuse of process:

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; …

(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

25    The parties were not in dispute as to the applicability of the seven Haigh factors to the present proceeding. I note that the same factors have been applied by the Full Court of the Federal Court in Symes v Holbrook [2005] FCAFC 219 at [53] (Lee, Moore and Nicholson JJ), and considered as ‘useful guidance’ more recently in the Federal Court of Australia in Patial v Kailash Lawyers Pty Ltd [2022] FCA 662 at [30] (Goodman J). I consider each of the Haigh factors below.

26    In addition to the consideration of the Haigh factors, the respondents submitted that the Court ought to consider a “more expansive approach” to abuse of process, stating that “the law is richer and more complex than reduced to seven points”. The respondents drew my attention to two related principles pertaining to issue estoppel. These principles emanate from authorities in the United States and United Kingdom and seek to move traditional issue estoppel beyond the requirements that the issue be both mutual and operative on the Court’s ultimate or legally indispensable findings. Notwithstanding that issue estoppel was no longer pleaded by the respondents, the respondents maintained that these principles are relevant to and should be considered as “part of the rubric of abuse of process”.

27    The first principle raised by the respondents might be described as the “prerequisite condition” principle. The principle was articulated by Goff LJ in McIlkenny v Chief Constable of the West Midlands [1980] QB 283; 2 All ER 227, who was addressing the question of issue estoppel in the context of overlapping allegations that had been made in a voir dire and in subsequent civil proceedings. At 326, Goff LJ stated:

[I]t is not the decision that the confessions were admissible, but the prerequisite condition that there was no previous violence on which the estoppel must be founded, and that question arises where the decision that the police had discharged the onus of satisfying the condition was final.

(Emphasis added.)

28    The respondents say further that the “prerequisite condition” concept is present in Dixon J’s summary of the law of issue estoppel in Blair v Curran (1939) 62 CLR 464 at 532, where his Honour said that “issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action”. The respondents say this approach has had resonance in decisions of this Court, including Leggett v Hawkesbury Race Club Ltd (No 1) [2021] FCA 1298 (Rares J).

29    The respondents take from these passages that, when considering issue estoppel in an abuse of process context, one should not solely focus on the Court’s ultimate finding, but also the “prerequisite conditions” or “ultimate facts” which go to how the finding in the matter is reached.

30    Putting this principle in play in the interlocutory application before me, the respondents say that while the ultimate finding in the County Court proceedings was that Ms Ioakimidis established a no case to answer submission, the prerequisite condition to that finding was that Ms Ioakimidis was an independent contractor. The respondents say that this is so because what was advanced as to the defence’s case in the County Court proceedings was that there was no dishonesty. This defence was premised on Ms Ioakimidis’ authority and nature of her working relationship, being that she ran her own business as an independent contractor and therefore had the authority to make the arrangements that she did as part of the group travel in 2015 and 2019. Findings as to the nature of Ms Ioakimidis’ relationship were, in the respondents’ words, “along the pathway to the final outcome of the adjudication”.

31    The second, and related, principle raised by the respondents emanates from authorities in the United States and Canada, and is described in those jurisdictions as “non-mutual collateral estoppel”. Pursuant to this principle, the court has broad discretion to allow a party to bar relitigation of an issue even if that party was not joined in the earlier action or was not in privity with a party to that earlier action provided that doing so promotes judicial economy, consistency of result, and would not otherwise be unfair: Parklane Hosiery Co Inc v Shore 439 US 322 (1979) at 329–31. In a similar vein, the respondents raised United Kingdom authorities that have emphasised that, in considering estoppel, one should not get caught up in the requirements of mutuality, but instead take a more holistic approach to considering whether estoppel has arisen. In the words of Lord Sumption JSC in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd) [2013] UKSC 46; All ER (D) 49 (Jul) at [18], when considering the “‘portmanteau term’ of res judicata”, the “label tends to distract attention from the contents of the bottle”. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727, the House of Lords held that it was contrary to public policy and an abuse of process for a person to challenge in civil proceedings a decision which had gone against that person in a criminal case which was not appealed.

32    The respondents also brought to my attention two authorities in this Court that have considered these United Kingdom and United States lines of authorities. In Kirby v Centro Properties Ltd [2008] FCA 1505; 253 ALR 65, Finklestein J considered whether multiple representative proceedings raising similar issues should be tried separately, and in doing so dealt with a submission that suggested that the respondents to the representative proceeding would be free to relitigate issues in another proceeding. Against this backdrop, his Honour raised the principle in Hunter, stating that, on the one hand, “it is not clear whether the Hunter principle will be applied in full in Australia”, on the other, it is “unlikely that any court would permit a party to relitigate a question or issue which has already been decided against him even though the other side cannot strictly satisfy the requirements of res judicata or issue estoppel”: at [16]. As to the doctrine of “non-mutual collateral estoppel” relied on in the United States and Canada, his Honour expressed that “even if the principle identified in Parklane is not a part of the general doctrine of issue estoppel in Australia, I would certainly consider adopting it at least in the limited context of class actions”: at [17]–[18].

33    Similarly, in Parkin v Boral Ltd (Temporary Stay) [2021] FCA 889; 155 ACSR 457, in the context of considering whether duplicitous representative proceedings should continue, Lee J at [23] cited the aforementioned passages in Kirby, and, at [27], observed that:

In my mind, it is difficult to understand why the principles of abuse of process are not sufficiently flexible to have regard to the bespoke circumstances in which a respondent in a representative proceeding, with all the ability to participate in that representative proceeding, is able to relitigate an adverse decision on issues which transcend that proceeding; that is, the common issues. The maxim interest rei publicae ut sit finis litium (it is for the common good that there should be an end to litigation) has a particular resonance when it comes to the determination of common issues in group proceedings.

34    To the extent that the two principles raised by the respondents are applicable to Australian law and apply outside the context of a representative proceeding, I do not find they are of assistance to the respondents in the present case. As I stated at [15], I do not consider the question of Ms Ioakimidis’ status as an employee or independent contractor was central to Moglia J’s reasoning. It was not a “prerequisite condition” upon which Moglia J reached his findings. For related reasons, I also do not consider that allowing Ms Ioakimidis to proceed in the present proceeding constitutes relitigation of an issue previously decided. As stated at [19]–[20], I find that nothing turned in the County Court decision on the distinction between Ms Ioakimidis’ status as an independent contractor or employee.

Consideration on abuse of process

35    I now turn to each of the Haigh factors.

Haigh factors (a)-(d)

36    Having regard to what I have said earlier regarding Moglia J’s findings and the criminal proceedings, I do not consider that the issue of whether Ms Ioakimidis was an independent contractor was central to his Honour’s reasoning in the County Court. That finding was not an element of any of the offences, nor was it an intermediate fact on which his Honour’s findings were based. Rather, what underpinned Moglia J’s findings was a lack of evidence as to the limitations on Ms Ioakimidis’ authority to take certain actions.

37    This factual conclusion means that (a)–(d) of the Haigh factors point away from there being an abuse of process.

Haigh factor (e)

38    This factor is not relevant in this case.

Haigh factors (f) and (g)

39    These factors direct attention to broader considerations of fairness and prejudice.

40    If there is no abuse of process and the admissions stand, the prejudice to the respondents is that they will need to defend claims made under the Fair Work Act at trial in circumstances where the respondents now consider that Ms Ioakimidis was not truly an employee but was an independent contractor. This potential prejudice needs to be weighed against the fact that this admission has stood in the pleadings since 2019 and both parties have prepared their evidence and arguments against the backdrop of the employee status being admitted. Both parties also participated in several mediations on an understanding of the current pleadings and the admissions they contain.

41    If there is an abuse of process and the Fair Work Act claims are withdrawn on that basis, Ms Ioakimidis may be required to file further amended pleadings, and potentially further evidence. This may delay the trial dates.

42    I note for completeness that given my factual conclusions set out at [15]–[20], in my view there is no impact on the principle of finality of judicial determination and public confidence in the administration of justice.

Conclusion on abuse of process

43    Having regard to the Haigh factors and my conclusions regarding the criminal proceedings discussed above, I am not satisfied that Ms Ioakimidis’ position in the current proceeding as to the status of her engagement seeks to “relitigate” a factual matter determined in the criminal proceedings, nor does it present a “collateral attack” on the County Court’s findings. Ms Ioakimidis maintaining an argument that she is an employee in the current proceeding does not challenge or impugn the result of the criminal proceeding.

44    I find that there is no abuse of process and that the requests pursuant to r 16.21(1)(f) or r 26.01(1)(d) of the Rules (or alternatively s 31A(2) of the Federal Court Act) are refused.

Respondents’ request for leave to withdraw admissions

Principles on leave to withdraw

45    The respondents seek an order under r 26.11 of the Rules. That rule provides that a party may, at any time, withdraw a plea raised in the party’s pleading by filing a notice of withdrawal. However, a party must not withdraw an admission or any other plea that benefits another party in a defence or subsequent pleading unless the other party consents or the Court gives leave.

46    The admission sought to be withdrawn here is that Ms Ioakimidis is an employee. This admission obviously benefits Ms Ioakimidis because it assists her claims under the Fair Work Act arising from her employee status. In circumstances where Ms Ioakimidis has not agreed to the admission being withdrawn, it falls on me to consider the giving of leave to withdraw that admission.

47    The parties agree that the relevant principles as to withdrawing an admission were summarised by Besanko J in Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc [2019] FCA 526 at [38]. There, his Honour stated that the overriding consideration in determining whether to grant leave to withdraw an admission is the interests of justice. His Honour explained that in determining where the balance lies, a number of matters which overlap and interact are relevant. Those matters were:

(1)    the circumstances in which the admission came to be made;

(2)    the strength of the case now advanced that the admission is or may well be incorrect;

(3)    whether the party seeking to withdraw the admission has done all they could do to establish that the admission is incorrect;

(4)    whether they have acted in a transparent and straightforward fashion;

(5)    any delay in making the application to withdraw the admission;

(6)    the significance of the admission to the respective cases of the parties;

(7)    the prejudice to the party withdrawing if the admission is not withdrawn and to the other party if it is;

(8)    general prejudice to the applicant and the respondent; and

(9)    case management principles as discussed in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 and embodied in ss 37M and 37N of the Federal Court Act.

48    Ms Ioakimidis also cites observations of Santow J in Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, 16 October 1996), which were approved by the Full Court of this Court in Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 at [18] and [27]. Those observations add the following considerations:

(1)    “[w]here a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission … should not be freely granted”;

(2)    “the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded”;

(3)    “[w]here a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn”; and

(4)    “[i]t will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission”.

49    I should add that s 37M(1) of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Under s 37N(1), the parties to a civil proceeding before the Court must conduct the proceeding in a way that is consistent with the overarching purpose.

Consideration on leave to withdraw

50    I will now consider each of the factors discussed in Juno and make some observations in respect of what the Court said in Jeans. The respondents’ request for leave pursuant to r 26.11 of the Rules is refused for the following reasons.

The circumstances of the admission

51    In the 2019 Federal Circuit Court proceedings the respondents filed a Response on 23 December 2019 that “accepted” that Ms Ioakimidis was an employee of the first respondent. This admission was maintained in the Defence filed on 27 March 2020 (in the Federal Circuit Court), and in the Amended Defence filed in the Federal Court on 17 November 2023, and the Further Amended Defence filed on 12 July 2024.

52    The respondents submit that the admissions were made based on legal advice, and that the respondents were influenced by then recent High Court authority giving primacy to the text of a written contract in characterising a relationship as employee or independent contractor. Those cases were said to be ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, 275 CLR 254 and CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165. The respondents submit that the advice by the legal team “adopted a cautious approach that relied heavily on the contractual text, rather than pre-contractual conduct or the practical realities of the relationship, that did not readily fit within the factual matrix and which, after the criminal proceedings, has become entirely untenable”.

53    It is not clear to me what pre-contractual conduct or practical realities of the relationship the respondents’ submissions refer to. It has also not been clearly put to me why the facts as to the nature of Ms Ioakimidis’ engagement were not available to the respondents at the time the pleadings were filed. On the evidence before me, the respondents appear to have had available to them the facts they now rely upon to assert Ms Ioakimidis was not an employee. The fact that the respondents did not have access to the criminal proceedings transcripts at the time the admissions were made is not to the point — the respondents were aware from 2019 onwards of the circumstances of Ms Ioakimidis’ engagement.

54    This factor weighs against me granting leave to withdraw.

The strength of the case now advanced that the admission is or may well be incorrect

55    The respondents’ argument that the admissions are incorrect is largely based on the transcripts of the criminal law proceedings. The respondents consider that the transcripts demonstrate (1) that Ms Ioakimidis adopted a forensic position in those proceedings that she was an independent contractor, and (2) Ms Ioakimidis’ status as an independent contractor was an important intermediate fact accepted by Magistrate MacLean and Moglia J. Given my conclusions at [15]–[20], I do not accept that there is a strong case that those admissions are incorrect on those bases.

56    The other reason advanced for why the admissions are incorrect is that the legal team gave “insufficient weight to extrinsic factual matters, such as pre-contractual conduct and the practical independence of Ms Ioakimidis’ business” (as described at [10] of Mr Lunn’s affidavit dated 22 May 2025). In my view, the respondents have not described what the relevant factual matters and pre-contractual conduct are with enough precision for me to accept that the admission that Ms Ioakimidis is an employee is incorrect, particularly where the admission was based on legal advice and said to be consistent with High Court authority. The respondents did not contend that advice or those authorities were incorrect. Again, it has also not been clearly put to me why the facts as to the nature of her engagement were not available to the respondents at the time the pleadings were filed.

57    This factor weighs against me granting leave.

Whether the respondents have done all they could do establish that the admission is incorrect

58    I accept that on 10 February 2025 the respondents contacted Ms Ioakimidis’ representatives requesting further discovery of certain documents. I also accept that on 17 February 2025 the respondents caused a subpoena to be issued to Victoria Police. I further accept that in March 2025 the respondents exchanged correspondence with Ms Ioakimidis’ representatives requesting confirmation that Ms Ioakimidis would no longer press any claim of having been a national system employee. However, I also acknowledge that there is a real question regarding the respondents’ delay in raising the issue of the employee admissions with Ms Ioakimidis (which I will turn to in more detail shortly).

59    To establish that the admission is incorrect, the respondents have pointed to limitations in the legal advice provided. However, for the reasons I have given at [52]–[53] and [56], I consider that that argument is not identified with sufficient precision and I do not accept it.

60    On balance, this factor weighs against me granting leave.

Whether the respondents have acted in a transparent and straightforward fashion

61    This factor is not relevant in this case. There was no submission by Ms Ioakimidis that the respondents have acted in a way that was not transparent and not straightforward.

The delay in making the application to withdraw the admission

62    The respondents are seeking to withdraw admissions which were first made in pleadings in 2019. They seek to withdraw these admissions in circumstances where it is now 20 days out from the trial. I am not satisfied by the respondents’ explanations for the time it has taken to attempt to withdraw the admissions.

63    First, as I have noted above, the admissions in the pleadings were informed by legal advice and it has not been clearly put to me why the facts as to the nature of her engagement were not available to the respondents at the time the pleadings were filed.

64    Second, I note that while the respondents did not have full access to the criminal proceedings transcripts until late February 2025, both Ms Corvasce and Ms Rowe (who are the second and third respondents and cross-claimants to the substantive proceeding) gave evidence in the criminal proceedings and would have been alert to the arguable issue of Ms Ioakimidis’ independent contractor status in March 2023 at the latest. I note that in the County Court, Ms Corvasce had the following exchange with defence counsel Mr Alexander:

ALEXANDER: Yeah, this is—you're in the Federal Court in dispute over this, aren't you, with her, about whether she was an employee or an independent contractor?

CORVASCE: Correct. And in civil court, she's saying she's an employee.

ALEXANDER: Yep.

CORVASCE: And in here, she's saying she's a contractor.

65    Given this fact, even if the delay is counted from 2023 and not 2019, the delay between March 2023 and first raising the issue of withdrawing admissions with Ms Ioakimidis in March 2025 is, in my view, not adequately explained.

66    Third, and for completeness, I consider that the other reasons given for the delay between July 2024 and March 2025 are not fully explained. I accept the respondents’ present counsel was not briefed until July 2024. I also note the respondents’ references that the Christmas break in 2024–2025 contributed to the delay. These two factors alone cannot fully account for why subpoenas were not issued to Victoria Police until February 2025. However, even if these factors could so account, I would still find that there is a significant unjustified delay from 2023 (or alternatively 2019) onwards for the reasons explained at [62]–[65].

67    This factor weighs against me granting leave.

The significance of the admission to the respective cases of the parties

68    The admissions are significant. The admission that Ms Ioakimidis is a national system employee is the basis of Ms Ioakimidis’ claims made under the Fair Work Act regarding her legislative entitlements as an employee. For the respondents, the admission that she is a national system employee means that they will have to defend claims regarding whether the respondents had met certain legislative obligations under the Fair Work Act in respect of Ms Ioakimidis’ employment. These are not minor matters but are matters of central importance to the proceeding.

69    This factor weighs against me granting leave.

Prejudice to the respondents if admissions are not withdrawn, and prejudice to the applicant if the admissions are withdrawn, and general prejudice to the parties

70    These factors regarding prejudice have already been canvassed in my discussion of factors (f) and (g) in the Haigh abuse of process discussion at [39]–[41]. These factors weigh against me granting leave.

Case management principles

71    Further to the above, if I granted leave to withdraw the admissions, it is difficult to escape the conclusion that this would further delay the trial listed in 20 days’ time. Further delaying the trial is undesirable given the length of time these proceedings have been on foot. I again note the overarching obligation of the civil practice and procedure provisions in the Federal Court Act to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

72    This factor weighs against me granting leave.

Factors in ‘Jeans’

73    Given my observations as to the Juno factors, it is not necessary for me to individually comment on each of the Jeans factors and to repeat my analysis. However, I add that point (1) from Jeans is apposite. Here, the respondents made a clear and distinct admission that Ms Ioakimidis was an employee, and this had been accepted by Ms Ioakimidis for several years. I also add that consistent with point (3) in Jeans, this is very much a case where the admissions were made in the pleadings after consideration and after legal advice, and after the respondents had full opportunity to consider their case and whether the admissions should be made. The admissions were formal and deliberate and were not made inadvertently.

74    These additional considerations weigh against me granting leave.

75    In all of those circumstances I refuse to grant leave to withdraw the admissions.

Other matters

76    For completeness, I address the other outstanding arguments raised in the parties’ written submissions.

Approbation and Reprobation

77    The respondents have raised the principle of approbating and reprobating election. The respondents have cited the proposition of Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 20] [2023] WASC 124 at [86] that “[a] person may not ‘approbate and reprobate’, meaning that a person, having a choice between two inconsistent courses of conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course”.

78    The respondents submit that Ms Ioakimidis asserted a positive defence in the criminal proceedings that she is an independent contractor, which constitutes a clear and deliberate election and precludes her from resiling from that position in the current proceeding to argue that she is an employee.

79    In my view, and having regard to the transcripts and what I have said above, I do not accept that Ms Ioakimidis made a “clear and unequivocal election” in her criminal proceedings to argue she was an independent contractor. For the reasons explained at [15]–[20], Ms Ioakimidis’ employment status was not an element of the charges faced by her. She was not required to make a clear and unequivocal election as to that matter. Consistently, the findings of Moglia J focussed on the questions of authority and whether Ms Ioakimidis’ conduct met the “high bar” of criminal dishonesty. I therefore consider she is not precluded from arguing she is an employee in the current proceeding.

Incontrovertibility

80    The respondents submitted in their written submissions that the principle of incontrovertibility would be infringed if the current proceeding went ahead, because a finding by this Court that she was in fact an employee would contradict the foundation and controvert the finding of Moglia J in the County Court. The respondents cite the passage of R v Carroll [2002] HCA 55; 213 CLR 635 at [45], which provides that “[t]he need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible”.

81    I do not accept the principle of incontrovertibility would be infringed if the current proceeding went ahead. This is because I do not agree that Moglia J accepting that Ms Ioakimidis was an independent contractor was critical to his Honour deciding that Ms Ioakimidis had no case to answer for the reasons I have outlined at [15]–[19]. In any case, the High Court in Carroll at [47] stated that:

[W]here it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged.

(Emphasis added.)

82    As I have outlined at [16], whether Ms Ioakimidis was an employee or independent contractor did not form part of the elements of the offences with which she was charged in the criminal proceedings.

disposition

83    For the reasons given above, the respondents’ interlocutory application is dismissed.

84    The trial is listed for a pre-trial case management hearing on 30 June 2025 and for a trial of six days commencing on 14 July 2025. The matter will proceed on those dates. Whilst s 570 of the Fair Work Act confines the circumstances in which costs may be ordered, I will, at the request of Ms Ioakimidis, reserve the question of costs.

Associate:

Dated:    27 June 2025