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

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348 File number: ACD 41 of 2018

Judge: KATZMANN J

Date of judgment: 16 March 2020

Date of publication of reasons: 17 March 2020

Catchwords: PRACTICE AND PROCEDURE — interlocutory application by second respondent for leave to amend defence and to file and serve evidence — where originating application relates to multiple contraventions of Fair Work Act 2009 (NSW) in which second respondent alleged to be knowingly concerned and relief sought includes civil penalties — where serious allegations made and supported by evidence — where defence claimed privilege against exposure to penalties and evidence had been received from applicant's witnesses — where second respondent had been granted two extensions of time to file amended defence and evidence — where interlocutory application filed late and shortly before hearing due to resume — where explanation wanting and real prospect of prejudice to applicant but where denying leave would deprive second respondent of capacity to give and call any evidence against serious allegations and allegations would otherwise go unanswered

Legislation: Fair Work Act 2009 (Cth), para 570(2)(b) Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 37P Federal Court Rules 2011 (Cth), rr 1.41, 16.07, 16.08

Cases cited: A & L Silvestri Pty Ltd (ACN 052 514 799) v Construction, Forestry, Mining and Energy Union [2005] FCA 1658; 226 ALR 247 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v Mining Projects Group Limited (2007) 164 FCR 32 Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303