PRACTICE AND PROCEDURE – Application for default judgment against the First and Second Respondents – Court’s power to make declarations of contravention on an application for default judgment – where the First and Second Respondents failed to defend proceedings – default judgment entered.
INDUSTRIAL LAW – Application for order for compensation under section 545 (2) (b) of the Fair Work Act 2009 (Cth) – failure to pay minimum entitlements in accordance with Hair and Beauty Industry Award 2010 – liability of corporation for breaches of the Fair Work Act 2009 (Cth) – accessorial liability – Order for compensation.
THE COURT DECLARES THAT the First Respondent Mini Majhel Pty Ltd:
(a)Contravened section 45 of the Fair Work Act 2009 (Cth) during the period from 23 August 2016 and 13 March 2019 by:
(i)Failing to pay Benjamin Bone minimum rates of pay in accordance with clauses 17 and 19 of the Hair and Beauty Industry Award 2010 (“the Award”); and
(ii)Failing to Benjamin Bone pay penalty rates for work performed on a Saturday in accordance with clause 31.2 (c ) of the Award; and
(iii)Failing to make superannuation contributions for the benefit of Benjamin Bone as required by clause 24.2 of the Award;
(b)Contravened section 44 (1) of the Fair Work Act 2009 (Cth) on 13 March 2019 by failing to pay Benjamin Bone untaken paid annual leave at the end of his employment period pursuant to subsection 90 (2) of the Fair Work Act 2009
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bone v Mini Majhel Pty Ltd [2020] FCCA 1483
Case
[2020] FCCA 1483
Decision Date
CaseChat Overview and Summary
The applicant, Bone, sought default judgment against the respondents, Mini Majhel Pty Ltd and another party, in the Federal Circuit Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth), specifically the failure to pay minimum entitlements in accordance with the Hair and Beauty Industry Award 2010. The respondents failed to defend the proceedings.
The court was required to determine whether it had the power to make declarations of contravention on an application for default judgment, and if so, whether to grant the applicant's claim for compensation under section 545(2)(b) of the *Fair Work Act 2009* (Cth). The court also considered the liability of a corporation for breaches of the Act and the principles of accessorial liability.
The court applied the Federal Circuit Court Rules 2001, specifically Rules 13.03A and 13.03B, which govern default by respondents and the court's powers in such circumstances. Rule 13.03B(2)(c) permits the court to give judgment for relief that the applicant appears entitled to on the statement of claim and that the court has the power to grant. The court found that the respondents were in default as they had not satisfied the applicant's claim and had failed to file a response within the prescribed time. The court was satisfied that it had the power to grant the relief sought, including declarations of contravention and compensation orders, given the respondents' failure to defend the proceedings and the evidence presented by the applicant.
The court entered default judgment against the respondents for contraventions of the *Fair Work Act 2009* (Cth) and ordered the respondents to pay compensation to the applicant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Federal Circuit Court Rules 2001 provide as follows: Rule 13.03A:(1) For rule 13.03B, an applicant is in default if the applicant fails to:(a) comply with an order of the Court in the proceeding; or(b) file and serve a document required under these Rules; or(c) produce a document as required by Part 14; or(d) do any act required to be done by these Rules; or(e) prosecute the proceeding with due diligence.(2) For rule 13.03B, a respondent is in default if the respondent:(a) has not satisfied the applicant's claim; and(b) fails to:(i) give an address for service before the time for the respondent to give an address has expired; or(ii) file a response before the time for the respondent to file a response has expired; or(iii) comply with an order of the Court in the proceeding; or(iv) file and serve a document required under these Rules; or(v) produce a document as required by Part 14; or(vi) do any act required to be done by these Rules; or(vii) defend the proceeding with due diligence.Rule 13.03B:(1) If an applicant is in default, the Court may order that:(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or(b) a step in the proceeding be taken within the time limited in the order; or(c) if the applicant does not take a step in the time mentioned in paragraph (b) - the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.(2) If a respondent is in default, the Court may:(a) order that a step in the proceeding be taken within the time limited in the order; or(b) if the claim against the respondent is for a debt or liquidated damages - grant leave to the applicant to enter judgment against the respondent for:(i) the debt or liquidated damages; and(ii) if appropriate - costs; or(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings - give judgment against the respondent for the relief that:(i) the applicant appears entitled to on the statement of claim; and(ii) the Court is satisfied it has power to grant; or(d) give judgment or make any other order against the respondent; or(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.(3) The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:(a) an affidavit, or affidavits, proving:(i) service of the application claiming judgment for the debt or liquidated damages; and(ii) that the respondent is in default; and(b) an affidavit for the debt or liquidated damages in accordance with the approved form.(4) Unless the Court otherwise orders, if a respondent to a cross-claim is in default:(a) a judgment or decision on any claim, question or issue in the proceeding on the originating process; or(b) any other cross-claim in the proceeding;is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.(5) In subrule (4):“decision” includes a decision by consent.“judgment” includes a judgment by default or by consent.(6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.Rule 13.03C:(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:(a) adjourn the hearing to a specific date or generally;(b) order that there is not to be any hearing, unless:(i) the proceeding is again set down for hearing; or(ii) any other steps that the Court or the Registrar directs are taken;(c) if the absent party is an applicant – dismiss the application;(d) if the absent party is a party who has made an interlocutory application or a cross claim – dismiss the interlocutory application or cross claim;(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.(2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.”