Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348

Although the second respondent's application was late, his explanation was incomplete, he had repeatedly failed to comply with orders, and the applicant faced real prejudice, the allegations against him were extremely serious and supported by sworn evidence. Refusing leave would prevent him from mounting any positive defence or responding with evidence, leaving those allegations unanswered. The prejudice to the applicant could be reduced by strict limits on the evidence, refusing recall of the applicant's witnesses, dispensing with some filing requirements, permitting reply evidence on an abbreviated timetable, and ordering the second respondent to pay the applicant's costs. On balance,...

Jurisdiction
Australia
Judgment Date
16 March 2020
Procedural Posture
Interlocutory Application in Fair Work Act Civil Penalty Proceeding / Application by the Second Respondent for Leave to File an Amended Defence and Evidence on Liability Shortly Before the Resumed Hearing
Outcome
Leave granted to the second respondent to file and serve an amended defence and limited affidavit evidence, subject to strict timetables and conditions; the second respondent ordered to pay the applicant's costs of the interlocutory application and the case management hearing.
Legal Topics
['leave to Amend Defence' 'leave to File Evidence' 'penalty Privilege' 'case Management' 'civil Penalties' 'costs Under Fair Work Act 2009 (cth)']
['employment and Industrial Relations' 'practice and Procedure'] ['leave to Amend Defence' 'leave to File Evidence' 'penalty Privilege' 'case Management' 'civil Penalties' 'costs Under Fair Work Act 2009 (cth)']

Case Brief

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Procedural Posture

Interlocutory Application in Fair Work Act Civil Penalty Proceeding / Application by the Second Respondent for Leave to File an Amended Defence and Evidence on Liability Shortly Before the Resumed Hearing

Legal Issues

  1. 1 ['Whether the second respondent should be granted leave to file an amended defence after failing to comply with earlier timetables.' 'Whether the second respondent should be granted leave to file and serve evidence on liability shortly before the resumed hearing.' 'Whether prejudice to the applicant, delay, non-compliance with court orders and the overarching purpose outweighed the disadvantage to the second respondent if leave were refused.' 'Whether costs should be ordered against the second respondent under para 570(2)(b) of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

Although the second respondent's application was late, his explanation was incomplete, he had repeatedly failed to comply with orders, and the applicant faced real prejudice, the allegations against him were extremely serious and supported by sworn evidence. Refusing leave would prevent him from mounting any positive defence or responding with evidence, leaving those allegations unanswered. The prejudice to the applicant could be reduced by strict limits on the evidence, refusing recall of the applicant's witnesses, dispensing with some filing requirements, permitting reply evidence on an abbreviated timetable, and ordering the second respondent to pay the applicant's costs. On balance,...

Court Disposition

Leave granted to the second respondent to file and serve an amended defence and limited affidavit evidence, subject to strict timetables and conditions; the second respondent ordered to pay the applicant's costs of the interlocutory application and the case management hearing.

Orders

  • ['Leave be granted to the second respondent to file and serve an amended defence in the form provided to the applicant on 9 March 2020 by 5PM on 17 March 2020.' 'Any requirement the applicant may have under the Federal Court Rules 2011 (Cth) to file a reply be dispensed with.' 'Leave be granted to the second...