Barkly Region Alcohol and Drug Abuse Advisory Group Aboriginal Corporation v Naylor

• Jurisdiction: Australia Federal only
• Judge: REEVES J
• Judgment Date: 16 August 2019
• Neutral Citation: [2019] FCA 1292
• Date: 16 August 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Barkly Region Alcohol and Drug Abuse Advisory Group Aboriginal Corporation v Naylor [2019] FCA 1292

File number:	NTD 42 of 2017
Judge:	REEVES J
Date of judgment:	16 August 2019
Catchwords:	PRACTICE AND PROCEDURE – application for a stay of the proceeding – where the pecuniary penalty aspects of this proceeding are stayed pursuant to s 553 of the Fair Work Act 2009 (Cth) – where an exercise of the Court’s discretion to stay the balance of the proceeding is appropriate – stay granted
Legislation:	Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Fair Work Act 2009 (Cth)
Cases cited:	Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2014) 225 FCR 210; [2014] FCAFC 101 McMahon v Gould (1982) 7 ACLR 202 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Date of hearing:	17 May 2019
Registry:	Northern Territory
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Applicant:	Mr M Easton
Solicitor for the Applicant:	Williamson Barwick
Solicitor for the Respondents:	Mr R Bonig of Finlaysons Lawyers

ORDERS

		NTD 42 of 2017
BETWEEN:	BARKLY REGION ALCOHOL AND DRUG ABUSE ADVISORY GROUP ABORIGINAL CORPORATION (ICN 8618) (UNDER SPECIAL ADMINISTRATION) Applicant
AND:	STEWART JAMES NAYLOR First Respondent ; ANNA PERRIE NAYLOR Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	16 August 2019

THE COURT ORDERS THAT:

1. This proceeding be stayed until further order.

2. The parties have liberty to apply, on seven days’ written notice, to vary or lift this stay.

3. Costs in the cause.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1. Mr Stewart Naylor and Mrs Anna Naylor are the respondents to this proceeding brought under the civil remedies provisions in Part 4-1 of the Fair Work Act 2009 (Cth) (FWA). They are also the defendants in criminal proceedings in the Northern Territory in respect of which they were recently committed to stand trial before the Northern Territory Supreme Court. Because the conduct relied upon for relief in this proceeding is substantially the same as the conduct constituting the offences in the criminal proceedings, the Naylors claim that this proceeding is stayed or, alternatively, that it should be stayed in the exercise of the Court’s discretion under s 553 of the FWA. Consequently, they have filed the present application seeking orders to that effect.

FACTUAL BACKGROUND

2. Before identifying the conduct which founds this proceeding and the criminal proceedings, it is convenient to briefly describe the factual context in which that conduct occurred. Barkly Region Alcohol and Drug Abuse Advisory Group Aboriginal Corporation (BRADAAGAC), the applicant, is an Aboriginal corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). As its name implies, it provides advisory services to Aboriginal people in the Barkly region of the Northern Territory.

3. Between 22 January 2009 and his resignation on 28 September 2016, taking effect from 30 September 2016, Mr Naylor was employed as the Chief Executive Officer (CEO) of BRADAAGAC. Between 3 July 2007 and her resignation on 27 September 2016, also taking effect from 30 September 2016, Mrs Naylor was employed as BRADAAGAC’s Corporation Services Manager.

THE CONDUCT

4. The two sets of conduct relied upon to obtain relief in this proceeding occurred during the periods of Mr and Mrs Naylor’s employment with BRADAAGAC. It falls into two categories. The first concerns certain payments claimed by Mr Naylor, or which he authorised to be paid to Mrs Naylor, during their employment with BRADAAGAC. The details of those payments are set out in [21] and [26] of the statement of claim (SOC) as follows:

21. During [Mr Naylor’s] employment as Chief Executive Officer with [BRADAAGAC], [Mr Naylor] made claims against [BRADAAGAC] for, and was paid amounts for, additional hours of work which the Applicant [sic – Mr Naylor] either did not perform, or was not duly authorised to perform by [BRADAAGAC’s] Management Committee. [Mr Naylor] had no contractual entitlement to be paid for additional hours of work. The claims and payments for additional hours were contrary to the interests of [BRADAAGAC].

Particulars

Period	Amount paid for additional hours claims
1 July 2009 to 30 June 2010	$26,593.22
1 July 2010 to 30 June 2011	$40,503.26
1 July 2011 to 30 June 2012	$53,441.08
1 July 2012 to 30 June 2013	$56,446.06
1 July 2013 to 30 June 2014	$60,437.93
1 July 2014 to 30 June 2015	$91,530.26
1 July 2015 to 30 June 2016	$112,693.31
1 July 2016 to 30 September 2016	$32,641.70
Total	$474,286.82

…

26. During [Mr Naylor’s] employment as Chief Executive Officer with [BRADAAGAC], [Mr Naylor] wrongly authorised payments to be made by [BRADAAGAC] to [Mrs Naylor] for additional hours because [Mrs Naylor] had no contractual entitlement to be paid for additional hours, there was generally no necessity for her to perform additional hours, and it was contrary to the interests of [BRADAAGAC] to authorise [Mrs Naylor] to perform paid additional hours of work. [Mr Naylor] acted in conflict with his interests to [BRADAAGAC], given that [Mrs Naylor] was his partner, by authorising the payments without declaring his conflict to [BRADAAGAC’s] Management Committee.

Particulars

Period	Amount paid for additional hours claims
1 July 2009 to 30 June 2010	$12,260.55
1 July 2010 to 30 June 2011	$19,169.76
1 July 2011 to 30 June 2012	$18,296.72
1 July 2012 to 30 June 2013	$22,115.49
1 July 2013 to 30 June 2014	$24,230.13
1 July 2014 to 30 June 2015	$48,802.13
1 July 2015 to 30 June 2016	$4,554.66
1 July 2016 to 30 September 2016	$4,457.88
Total	$153,887.32

5. The second category relates to certain expenditure Mr Naylor authorised for items of property that were allegedly not required by BRADAAGAC. The details of that expenditure are set out in [42] of the SOC as follows:

During [Mr Naylor’s] employment, [Mr Naylor] authorised expenditure by [BRADAAGAC] on items of property which were not required for, or of use to, its business as a...