Fair Work Ombudsman v Hu [2017] FCA 1081

Fair Work Ombudsman v Hu [2017] FCA 1081

Mr Marland had waived penalty privilege only to the limited extent of the admissions and positive assertions made in the defence, and not generally. His solicitor's consent to orders requiring affidavits before trial did not amount to an implied waiver because no affidavits had been provided, there was no reliance or prejudice to the applicant, and no unfairness in permitting the privilege to be maintained. Nor was there a binding contractual waiver because the applicant provided no consideration for Mr Marland's agreement to provide affidavits. Requiring Marland Mushrooms to file affidavits, submissions or an amended defence would effectively deprive Mr Marland of his privilege. The...

Jurisdiction
Australia
Judgment Date
14 September 2017
Procedural Posture
Interlocutory Application in Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Application to Vacate Pre Trial Filing Orders and Excuse Second and Third Respondents From Filing Affidavits, Submissions and Any Amended Defence Until the Close of the Applicant's Case at the Liability Hearing
Outcome
Interlocutory application by the second and third respondents granted.
Legal Topics
['privilege Against Exposure to Penalty' 'waiver of Privilege' 'consent Orders' 'affidavit Evidence Before Trial' 'fair Work Act Contraventions']
['evidence' 'employment and Industrial Relations' 'civil Penalties' 'procedure'] ['privilege Against Exposure to Penalty' 'waiver of Privilege' 'consent Orders' 'affidavit Evidence Before Trial' 'fair Work Act Contraventions']

Case Brief

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Procedural Posture

Interlocutory Application in Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Application to Vacate Pre Trial Filing Orders and Excuse Second and Third Respondents From Filing Affidavits, Submissions and Any Amended Defence Until the Close of the Applicant's Case at the Liability Hearing

Legal Issues

  1. 1 ["Whether the third respondent's privilege against exposure to a penalty prevented orders requiring him to file affidavits, submissions or an amended defence before the close of the applicant's case." 'Whether the third respondent waived penalty privilege by filing a defence containing admissions and positive allegations.' 'Whether the third respondent waived penalty privilege by his solicitor consenting to orders requiring the filing and service of affidavits before trial.' 'Whether any waiver arose by contract from the consent orders.' 'Whether the second respondent corporation should be required to file material where doing so would effectively deprive the third respondent of penalty privilege.']

Ratio Decidendi

Mr Marland had waived penalty privilege only to the limited extent of the admissions and positive assertions made in the defence, and not generally. His solicitor's consent to orders requiring affidavits before trial did not amount to an implied waiver because no affidavits had been provided, there was no reliance or prejudice to the applicant, and no unfairness in permitting the privilege to be maintained. Nor was there a binding contractual waiver because the applicant provided no consideration for Mr Marland's agreement to provide affidavits. Requiring Marland Mushrooms to file affidavits, submissions or an amended defence would effectively deprive Mr Marland of his privilege. The...

Court Disposition

Interlocutory application by the second and third respondents granted.

Orders

  • ['Orders 5 and 9 of the Order made on 3 July 2017 be vacated.' "The second and third respondents are excused from filing and serving any affidavits, any amended defence, and any written submissions until the close of the applicant's case at the hearing on the question of liability to be conducted from 9 to 11...