Jorgensen v Fair Work Ombudsman

• Jurisdiction: Australia Federal only
• Judgment Date: 08 July 2019
• Neutral Citation: [2019] FCAFC 113
• Date: 08 July 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Jorgensen v Fair Work Ombudsman [2019] FCAFC 113

Appeal from:	Fair Work Ombudsman v Jorgensen (No. 2) [2018] FCCA 1202
File number:	QUD 314 of 2018
Judges:	GREENWOOD, REEVES AND WIGNEY JJ
Date of judgment:	8 July 2019
Catchwords:	CONTEMPT OF COURT – appeal from orders made by primary judge on conviction and sentences of imprisonment – where appellant had been found guilty of contempt of freezing orders – where appellant third party to freezing orders – where appeal allowed in part – declarations set aside – matter remitted to the Federal Circuit Court of Australia for retrial
Legislation:	Evidence Act 1995 (Cth) ss 69, 136 Fair Work Act 2009 (Cth) s 716(5) Federal Circuit Court of Australia Act 1999 (Cth) s 17 Federal Court of Australia Act 1976 (Cth) s 28(1)(f) Federal Circuit Court Rules 2001 (Cth) r 19.02(1)
Cases cited:	Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2016] NSWSC 1309 Australian Competition and Consumer Commission v World Netsafe Pty Limited (No 3) [2003] FCA 159; 127 FCR 542 Australian Securities and Investments Commission v Sigalla (No 3) [2010] NSWSC 1076 Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 CCOM Pty Ltd v Jiejing Pty Limited [1992] FCA 325; 36 FCR 524 Clampett v Attorney-General (Cth) [2009] FCAFC 151; 181 FCR 473 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Denknis v Commonwealth Bank of Australia [2018] FCA 1908 Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738 Galea v Galea (1990) 19 NSWLR 263 Goodwin v Commissioner of Police [2012] NSWCA 379 Huda & Huda & Latham [2018] FamCAFC 85 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Jones v National Coal Board [1957] 2 QB 55 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; 256 FCR 90 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lockwood v Police (2010) 107 SASR 237 Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 Michael Wilson and Partners Limited v John Forster Emmott [2015] EWCA Civ 1028; [2015] All ER (D) 160 Michel v R [2009] UKPC 41; [2010] 1 WLR 879 OKS v Western Australia [2019] HCA 10; 93 ALJR 438 R v T, WA [2014] SASCFC 3; 118 SASR 382 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 RPS v The Queen [2000] HCA 3; 199 CLR 620 Seaward v Paterson [1897] 1 Ch 545 Sigalla v TZ Limited [2011] NSWCA 334 Sullivan v Trilogy Funds Management Ltd [2017] FCAFC 153; 255 FCR 503 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Wilde v R (1988) 164 CLR 365 Windoval Pty Limited v Donnelly [2014] FCAFC 127; 226 FCR 89 Yuill v Yuill [1945] 1 All ER 183 Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530
Date of hearing:	16 July 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Federal Crime and related proceedings
Category:	Catchwords
Number of paragraphs:	243
Counsel for the Appellant:	Mr S C Holt QC with Ms K W Gover
Solicitor for the Appellant:	Lillas & Loel Lawyers
Counsel for the Respondent:	Ms E S Wilson QC with Mr M McKechnie
Solicitor for the Respondent:	Ashurst Australia

ORDERS

		QUD 314 of 2018
BETWEEN:	LEIGH ALAN JORGENSEN Appellant
AND:	FAIR WORK OMBUDSMAN Respondent

JUDGES:	GREENWOOD, REEVES AND WIGNEY JJ
DATE OF ORDER:	8 JULY 2019

COURT ORDERS THAT:

1. The appeal be allowed in part.

2. The Declarations made by Judge Vasta on 3 May 2018 be set aside.

3. Order 1 of the orders made on 10 May 2019 by Judge Vasta be set aside.

4. The matter be remitted to the Federal Circuit Court of Australia for retrial pursuant to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), such retrial to be heard by a judge other than Judge Vasta.

5. The cross-appeal filed by the respondent on 30 May 2018 be dismissed.

6. The respondent pay the appellant’s costs of the appeal and first instance proceedings as agreed or taxed.

7. The appellant be released from the undertakings he gave to the Court on 11 May 2018.

8. The appellant’s passport be returned to him upon request.

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

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from orders made in the Federal Circuit Court of Australia which had the effect of convicting the appellant, Mr Leigh Jorgensen, of contempt of court and sentencing him to a period of imprisonment.

2. At the time of the events in question, Mr Jorgensen operated a business which sold tours and adventure activities in Far North Queensland. He appears to have operated that business through a number of different entities and in a fairly disorganised and haphazard way, at least in an administrative and financial sense. He also appears at times to have underpaid his employees. The latter feature of the business brought Mr Jorgensen and at least one of the entities through which he conducted the business, A.C.N. 156 455 828 Pty Limited, trading as Trek North Tours, to the attention of the respondent to this appeal, the Fair Work Ombudsman. The company A.C.N. 156 455 828 Pty Limited is referred to throughout this judgment as 828 Pty Limited to avoid confusion which would otherwise arise because Mr Jorgensen and other companies associated with him also used the trading name Trek North Tours.

3. In late 2014, the Ombudsman commenced proceedings in the Circuit Court against 828 Pty Limited and Mr Jorgensen alleging that 828 Pty Limited had contravened s 716(5) of the Fair Work Act 2009 (Cth) because it had failed to comply with compliance notices issued under that subsection. The compliance notices required 828 Pty Limited to pay a total of $29,956.75 representing the outstanding wages and entitlements of three of its employees. The Ombudsman also alleged that Mr Jorgensen was involved in the contraventions by 828 Pty Limited. Judgment was entered against both 828 Pty Limited and Mr Jorgensen in June 2015. 828 Pty Limited was ordered to pay a pecuniary penalty of $55,000 and to comply with the compliance...