Federal Court Judgments

of release. The High Court accepted this argument. The High Court, at [56], recognised that the conditions of release may have a bearing on the Supreme Court’s assessment of a person’s commitment to exercising appropriate self-control. The High Court considered, at [58]-[59], that there was nothing in the text of s59 of the Sentencing Act that required the Supreme Court to disregard the conditions of release in evaluating a person’s willingness to control his or her sexual desires. The High Court, at [64], also had regard to the purpose of s59(1a)(a) as set out in the Second Reading speech. The High Court, at [66], found that the amendments, introducing s59(1a), were not concerned to deny the possibility of finding that a person has the required willingness to exercise appropriate self-control on the basis that the person’s conditions of release may help strengthen that self-control. The High Court made orders setting aside the order of the Court of Appeal and decisions of the primary judge in each matter and remitted each of the appellant’s application for release on licence to the primary judge to be determined according to law.

Dr Michelle Sharpe is a Victorian barrister practicing in general commercial, real property, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com. au. The full version of these judgments can be found at www.austlii.edu.au.

By Shanta Martin

Representative Proceedings

Multiplicity of proceedings – whether “no win, no fee” model more likely to be in the interests of group members

In Kosen-Rufu Pty Ltd v Dixon Advisory and Superannuation Services Ltd [2022] FCA 573 (18 May 2022) the Court considered applications from solicitors acting in two class actions that had been commenced, raising overlapping but not identical claims against overlapping but not identical respondents. The proceedings concern retail clients of the financial advisory business, Dixon Advisory and Superannuation Services Ltd (DASS), and investments in the property investment fund known as the US Masters Residential Property Fund. Piper Alderman, acting for applicants in the Kosen-Rufu class action, sought orders consolidating the two proceedings. Shine Lawyers, acting for applicants in the Watson class action, sought orders staying the Kosen-Rufu proceeding or, if no stay was to be ordered, consolidating the two proceedings. The Court was required to determine what would be in the best interests of group members, specifically whether consolidating the proceedings or staying the Kosen-Rufu proceedings would be in the best interests of group members. The Watson proceeding was funded by Shine Lawyers on a “no win, no fee” basis, with a 25 per cent uplift on costs in the event of success. The Kosen-Rufu proceeding was funded by a litigation funder, which proposed charging commission at a rate of 12.5 per cent or 15 per cent. Shine Lawyers proposed that in the event of consolidation, a cooperation protocol be put in place that quarantined to Piper Alderman’s signed-up group members any obligation to contribute to a funder’s commission. Piper Alderman’s position was that all group members should contribute to the litigation funder’s commission. Thawley J accepted submissions for Watson that the “no win, no fee” structure with 25 per cent uplift on costs is likely to be lower than the litigation funder’s 12.5 per cent to 15 per cent commission on damages. That arrangement was, on balance, more likely to result in a greater recovery to group members. Shine Lawyers’ funding model was, therefore, in the best interests of group members. The Court was not persuaded that supervision by a litigation funder can lead to better overall supervision of cost and ensures that the proceedings are conducted expeditiously. Other factors considered by the Court were neutral or not significant. His Honour concluded that it was in the better interests of group members to stay the Kosen-Rufu proceeding rather than consolidate the two proceedings because: (1) most importantly, the “no win, no fee” model was likely to result in a better return to all group members and likely to be less expensive than the payment of a commission on damages; (2) less significantly, if the proceedings were consolidated group members would be likely to nominate participating on the terms offered by Shine Lawyers; and (3) the complexity and additional cost and delay which was likely to result from a consolidated proceeding on the basis proposed by Piper Alderman. Industrial Relations

Allegations of contraventions of ss45, 323, 325, 343 and 345 and “serious contraventions” under s557A of the Fair Work Act 2009 (Cth) - where employees had been granted or sought sponsorship for work visas

In Basi v Namitha Nakul Pty Ltd [2022] FCA 712 (21 June 2022) Mr Basi and Mr Haider (applicants) alleged that their former employer, the first respondent, Namitha Nakul Pty Ltd (Namitha Nakul) contravened the Fair Work Act 2009 (Cth) (Act) and that its sole director and shareholder, the second respondent (Mr Usha), was involved in those contraventions and personally contravened the Act. The case involved application of s557A of the Act, which provides that a contravention of a civil remedy provision by a person is a serious contravention if the person knowingly contravened the provision and the conduct was part of a systemic pattern of conduct relating to one or more other persons. Section 557A has not previously been the subject of detailed consideration by the Federal Court. Namitha Nakul operated two Indian restaurants in NSW. The applicants contended that throughout their employment as cooks by Namitha Nakul they were required to work excessive

FEDERAL COURT JUDGMENTS

By Shanta Martin

hours without any formal breaks, they were not paid their award entitlements, and they were unlawfully required to pay a significant proportion of their wages back to the respondents as either repayments of alleged loans made to them by Mr Usha or to cover tax liabilities on their wages and visa application costs. The Court noted particular difficulties in the evidence. One such difficulty was that the evidence advanced by all parties exposed them to contraventions of the Migration Act 1958 (Cth) (at [20]). Although certificates were provided under s128 of the Evidence Act 1995 as a result of the potential for self-incrimination, witnesses tended to give self-serving and conflicting testimonial recollections, which had to be assessed against the apparent logic of events and objectively established facts. Halley J found that there were aspects of the evidence of each of the applicants that could not be accepted, particularly regarding claims that they had worked 12 hour days, six days a week. His Honour concluded that it was also not established that the applicants had worked overtime hours or had worked for more than five hours on any given day without a break (at [17(d)]). This finding was made notwithstanding that under s557C of the Act, the burden was on the respondents to disprove those allegations due to their failure to keep adequate records (at [206][218]). Halley J was especially critical of the second respondent, Mr Usha, describing him as “not impressive” and “frequently provid[ing] long winded, self-serving and argumentative responses . . . [that] had the effect of obfuscating, rather than illuminating, critical issues” (at [56]). Much of Mr Usha’s evidence was found to be implausible and reflected very poorly on his credit (at [57]). His Honour was highly critical of an attempt by Mr Usha to discredit one of the applicants by seeking a false statement from the other applicant (at [61]). Halley J found that the respondents had breached s45 of the Act by failing to abide by the Restaurant Industry Award 2010 in arranging hours of work, failing to pay weekend holiday rates, and failing to pay the amounts due and payable to the applicants. Significantly, his Honour found that the first respondent through Mr Usha had contravened ss323 and 325 of the Act, which impose an obligation on the employer to pay amounts payable to an employee and not to impose unreasonable requirements on the employee to pay or spend money. The provisions were contravened by paying an ostensibly lawful rate and then coercing payments back in cash. His Honour found that Mr Usha made demands for payment of money to cover tax liabilities and visa sponsorship costs in breach of s325, and contrary to ss343, 343 and 345 of the Act which prohibit coercion, undue influence and misrepresentations. Mr Usha engaged in threats to Mr Basi’s employment and visa status so as to make Mr Basi compliant and forego his workplace rights (at [453] and [466]). His Honour also found that Mr Usha had demanded Mr Haider make a payment towards the cost of sponsorship for his visa, in breach of s325 of the Act (at [494]-[495]). Halley J found that the contraventions of ss45 and 323 of the Act amounted to “serious contraventions” for the purposes of s557A of the Act, as the respondents knowingly contravened the provisions and their conduct was part of a systemic pattern of conduct relating to both applicants (at [426] and [428]). Mr Usha was found to be knowingly involved in these serious contraventions. The Court also found that, contrary to the case of the respondents, Mr Haider had worked for the first respondent for several months and was entitled to a quantum meruit payment (at [202]). Public Administration

Urgent mandatory injunction sought by Australian Electoral Commission for removal of non-compliant election signs.

In Australian Electoral Commission v Kelly [2022] FCA 628 (20 May 2022) the Australian Electoral Commission (AEC), on the eve of the federal election, sought an urgent injunction against Craig Kelly pursuant to s383 of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) and/or s23 of the Federal Court of Australia Act 1976 (Cth). The AEC sought an order restraining Mr Kelly from communicating electoral information in the form of a sign that it alleged did not include authorisation particulars legible at a distance, in breach of s321 D of the Electoral Act (restraining order). The AEC also sought an order compelling Mr Kelly on five occasions between midnight and 4pm on the day of the election to inspect a 100 metre circumference around 42 polling places in the electorate of Hughes for non-compliant signs and remove or rectify them (mandatory order). The AEC contended that the evidence established to a prima facie standard that the signs did not have the name and address of the person authorising the communications at all or in a sufficiently legible form. The AEC’s position was that although the restraining order was negative in form, the effect of the order would be to require Mr Kelly to immediately remove all existing non-compliance signage. This would have had the effect of placing Mr Kelly immediately in breach of the order if made (at [8]). The proposed order also had no geographical limitation. Jagot J also raised concerns about Mr Kelly’s capacity to comply with the mandatory order, noting “if a court wishes to order a person to do a particular thing, then care must be taken to ensure that the person, in fact, can do the thing that is required in accordance with the order” (at [10]). The AEC proposed a more restricted order by which Mr Kelly would be required by 7am the next day to procure removal of the relevant signs erected in the vicinity of two specific polling stations. While Jagot J was satisfied that there was a prima facie case or serious question to be tried, her Honour remained concerned about the respondent’s ability to comply with the proposed order in circumstances where it was by this time 10:18pm and where the words of the order were ambiguous and no provision was made to place a sticker on the signs rather than removing them. Her Honour was not persuaded that it was in the interests of justice to make the order on the grounds of the likely practicality and utility of the order (at [17]). Jagot J also considered it relevant that the alleged non-compliance had been known about for three weeks and the application was being brought the evening before the election. The application was dismissed.

Shanta Martin is a barrister at the Victorian Bar, ph (03) 9225 7222 or email shanta. martin@vicbar.com.au. The full version of these judgments can be found at www. austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.