Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442

Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442

The Federal Magistrate erred in making a declaration that discovery was appropriate in the interests of the administration of justice under s 45 of the Federal Magistrates Act 1999 (Cth) without having regard to relevant matters, including the fairness and expeditiousness of the proceeding, the costs to the applicant given the no costs regime, and that only Mr Devine (who would lose privilege against penalty) could act as 'proper officer'. As a result, there was no proper basis for the declaration or the orders for discovery, and they should be set aside.

Jurisdiction
Australia
Judgment Date
16 May 2013
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Order / Judgment on Application for Leave to Appeal and Appeal
Outcome
Appeal allowed and application for leave to appeal allowed. Orders of the Federal Magistrate set aside. Notice of appeal filed. FWO's application for discovery dismissed. No order as to costs.
Legal Topics
['discovery in Civil Procedure' 'privilege Against Self Incrimination' 'no Costs Jurisdiction in Fair Work Division' 'civil Penalties Under Fair Work Act']
['practice and Procedure' 'employment Law' 'privilege'] ['discovery in Civil Procedure' 'privilege Against Self Incrimination' 'no Costs Jurisdiction in Fair Work Division' 'civil Penalties Under Fair Work Act']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Order / Judgment on Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the order for discovery made by the Federal Magistrate was appropriate under s 45 of the Federal Magistrates Act 1999 (Cth)' 'Whether an order for discovery is fair where the costs are not recoverable and only one officer of the corporate respondent can comply' 'Whether privilege against self-incrimination applies in proceedings for civil penalty to a company and in the making of a discovery order']

Ratio Decidendi

The Federal Magistrate erred in making a declaration that discovery was appropriate in the interests of the administration of justice under s 45 of the Federal Magistrates Act 1999 (Cth) without having regard to relevant matters, including the fairness and expeditiousness of the proceeding, the costs to the applicant given the no costs regime, and that only Mr Devine (who would lose privilege against penalty) could act as 'proper officer'. As a result, there was no proper basis for the declaration or the orders for discovery, and they should be set aside.

Court Disposition

Appeal allowed and application for leave to appeal allowed. Orders of the Federal Magistrate set aside. Notice of appeal filed. FWO's application for discovery dismissed. No order as to costs.

Orders

  • ['The application for leave to appeal be allowed.' 'The draft notice of appeal filed 9 November 2012 be accepted for filing as a notice of appeal.' "The appeal be allowed and the orders made on 26 October 2012 set aside; in lieu thereof the FWO's application for discovery filed 13 September 2012 in ADG105/2012 is...