Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6) [2023] FCA 1116

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6) [2023] FCA 1116

The Court adopted the referee's report in whole because the referee performed her own calculations from agreed and undisputed facts and findings in the liability judgment, did not rely on the impugned calculation evidence in any material controversial way, considered Mr Elvin's affidavit and submissions, was not required to revisit issues already determined in the liability judgment or irrelevant pleaded matters, and none of Mr Elvin's complaints disclosed denial of procedural fairness, error of principle, misapprehension of evidence, manifest unreasonableness or any other proper basis for rejecting the Report.

Jurisdiction
Australia
Judgment Date
21 September 2023
Procedural Posture
Fair Work Proceeding Concerning Alleged Contraventions of the Fair Work Act 2009 (cth) and Adoption of a Referee's Report / Determination on the Papers of Whether a Referee's Report Appointed Under S 54 a of the Federal Court of Australia Act 1976 (cth) Should Be Adopted, Varied or Rejected After Liability Judgment
Outcome
Referee's report adopted in whole.
Legal Topics
["referee's Report" "adoption of Referee's Report" 'employee Underpayments' 'procedural Fairness' 'fair Work Act Contraventions']
['employment and Industrial Relations' 'practice and Procedure'] ["referee's Report" "adoption of Referee's Report" 'employee Underpayments' 'procedural Fairness' 'fair Work Act Contraventions']

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Procedural Posture

Fair Work Proceeding Concerning Alleged Contraventions of the Fair Work Act 2009 (cth) and Adoption of a Referee's Report / Determination on the Papers of Whether a Referee's Report Appointed Under S 54 a of the Federal Court of Australia Act 1976 (cth) Should Be Adopted, Varied or Rejected After Liability Judgment

Legal Issues

  1. 1 ["Whether the referee's report dated 24 July 2022 should be adopted or rejected." 'Whether the referee impermissibly relied on unreliable calculation evidence from Mr Wong.' 'Whether Mr Elvin was denied procedural fairness because the referee allegedly failed to consider his affidavit, second amended defence, or submissions.' "Whether evidence concerning cashbacks allegedly paid by Mr Benting affected the referee's calculation task."]

Ratio Decidendi

The Court adopted the referee's report in whole because the referee performed her own calculations from agreed and undisputed facts and findings in the liability judgment, did not rely on the impugned calculation evidence in any material controversial way, considered Mr Elvin's affidavit and submissions, was not required to revisit issues already determined in the liability judgment or irrelevant pleaded matters, and none of Mr Elvin's complaints disclosed denial of procedural fairness, error of principle, misapprehension of evidence, manifest unreasonableness or any other proper basis for rejecting the Report.

Court Disposition

Referee's report adopted in whole.

Orders

  • ['The report of the referee dated 24 July 2022 be adopted in whole.']