Buenaobra v Alesi
[2021] FCCA 2041
•24 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Buenaobra v Alesi [2021] FCCA 2041
File number(s): SYG 1973 of 2020 Judgment of: JUDGE BAIRD Date of judgment: 24 August 2021 Catchwords: PRACTICE AND PROCEDURE – application for default judgment – application for summary judgment – default largely remedied – proceeding not without reasonable prospects – application dismissed Legislation: Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Cases cited: Fair Work Ombudsman v IE Enterprises Proprietary Limited [2020] FCA 848
Fair Work Ombudsman v Mobile Food Vans and Trucks Pty Limited [2021] FCCA 882
Fair Work Ombudsman v Sober Kitchen Pty Ltd [2020] FCCA 2358
Open Eye Pty Ltd v Audio-Visual Copyright Society trading as Screenrights [2020] FCCA 7
Number of paragraphs: 34 Date of last submission/s: 24 August 2021 Date of hearing: 24 August 2021 Place: Sydney Applicant: Ms B Buenaobra for herself with the assistance of an interpreter Respondents: Mr A Salman, second respondent, with leave for the first respondent ORDERS
SYG 1973 of 2020 BETWEEN: JULIET BANO BUENAOBRA
Applicant
AND: ANWAR ALESI
First Respondent
ANWAR SALMAN
Second Respondent
ORDER MADE BY:
JUDGE BAIRD
DATE OF ORDER:
24 AUGUST 2021
THE COURT:
1.DISMISSES the respondents’ application in a case date 12 April 2021.
2.DIRECTS by 19 October 2021 each of the applicant and the respondents file and serve any further evidence on which they intend to rely.
3.DIRECTS by 23 November 2021each of the applicant and the respondents file and serve an outline of submissions on which they intend to rely at final hearing, each party’s outline being in Microsoft Word and limited to 15 pages.
4.LISTS the proceeding for directions hearing on 26 November 2021 at 3:00pm at the Court in Sydney or such other date/time as advised administratively by the Court, such directions hearing to be conducted via videoconference or such other means as advised by the Court.
5.STANDS OVER the proceeding for final hearing to a date to be advised, being not before 1 February 2022, that hearing to be a 1 day hearing and to be conducted by video or web conference or in person as the Court advises administratively.
REASONS FOR JUDGMENT
Judge Baird
Background
In this matter, the second respondent, Mr Anwar Salman, has brought an application in a case dated 12 April 2021, seeking orders to strike out any evidence provided after 9 April 2021 due to the applicant failing to follow procedure and comply with the timetable ordered by the Court, and secondly, that the application be dismissed on the basis that the applicant is not an Australian resident and an order of this Court may not be enforced against her in the country of origin, being the Philippines.
The evidence before me on this application today shows that the applicant, Ms Buenaobra’s, previous solicitor from Legal Aid withdrew and ceased to act on 8 April 2021. Ms Buenaobra is now resident in the Philippines. Mr Salman has explained to the Court that when the matter was last before the Court on 23 July 2021 he sought the orders in the application in a case because he has leave to go overseas to Iraq, and that his wife, the first respondent Ms Alesi, is presently working in Iraq, and in short, that Ms Buenaobra has not been participating in the proceeding.
The substantive proceeding is brought under the Fair Work Act 2009 (Cth), pursuant to which Ms Buenaobra seeks declarations and orders, inter alia, on the basis that the first respondent, Ms Alesi, failed to pay Ms Buenaobra a wage equivalent to the national minimum wage for the hours of work she performed, and failed to pay the amounts payable to her for the performance of work in full or at a base rate.
Ms Buenaobra seeks declarations that Ms Alesi contravened s 236 of the Act by failing to give Ms Buenaobra payslips, contravened s 535 of the Act by failing to keep employee records in the manner prescribed in the Fair Work Regulations 2009 (Cth), and contravened s 125 of the Act by failing to give Ms Buenaobra the Fair Work information statement. Ms Buenaobra seeks declarations and orders in relation to Mr Salman’s involvement in the contraventions, she seeks orders for payment and compensation for loss, and also, for breach of contract. Mrs Buenaobra also seeks penalties.
In short, Ms Buenaobra seeks monetary orders that Ms Alesi and Mr Salman be jointly and severally liable to pay Ms Buenaobra the sum of $71,265.92 in compensation for the loss suffered because of the contravention alleged in respect of s 293 of the Act, and the sum of $5,097.13 in compensation for the loss suffered because of the contraventions alleged in ss 91 and 92 of the Act, and the sum of $1,294.49 in damages for breach of contract in respect of non‑payment of leave loading. Ms Buenaobra seeks interest, and as I have said, penalties.
Evidence before the Court
Ms Buenaobra was employed by Ms Alesi as a domestic worker in Ms Alesi and Mr Salman’s private home under a domestic worker subclass 403 visa, it appears in the period from on or around 8 January 2015 until she was terminated on 9 November 2017.
Mr Salman, who appears before me today by video and seeks to represent his wife, Ms Alesi (who, as I have said, is presently in Iraq, working), stated in his affidavit of 30 July 2021:
Mrs Alesi and I cannot provide any evidence for the money paid to Mrs Bano Buenaobra, as we thought there would be no harm to give the salary in cash (there is no tax as a foreign income).
Ms Buenaobra has appeared today by video from the Philippines with the assistance of an interpreter. Ms Buenaobra has served a detailed affidavit in support of her claim, dated 4 August 2021, and some supporting documents. It appears, however, that not all supporting documents are presently available to her as they appear to be, on her account, still with her former solicitor.
Within Ms Buenaobra’s affidavit are statements that make clear that she did not ever receive a payslip, she did not receive a Fair Work information statement, and she was not aware of any records that Ms Alesi or Mr Salman kept to record her hours of work or what she did.
Mr Salman has stated to the Court that neither he nor his wife provided payslips nor did they keep records as required because they were not a business but a house. As to the question of the Fair Work information statement, Mr Salman says he did not give Ms Buenaobra such a statement because he understood one was given by the Australian embassy in Manila before Ms Buenaobra started work with him and his wife. It is not clear to me whether any such statement was provided. Ms Buenaobra says she does not recall one, but I am not clear whether that is a failure of my understanding of the interpreter.
Mr Salman, as I have said, has filed affidavits disputing elements of Ms Buenaobra’s claim. His affidavits before me today, relevantly, are an affidavit affirmed 30 July 2021, to which are attached histories, records and statements of account of his children’s attendances at school and at childcare and early learning centres. In addition, Mr Salman attaches statements from friends as to whether they saw Ms Buenaobra when they visited Ms Alesi and Mr Salman’s house or apartment (being their home at different times), and of communications with Ms Buenaobra through other persons who spoke the same dialect.
In addition, Mr Salman read his affidavit of 12 August 2021, in which he disputed whether since March 2017 until she was terminated, she performed work for his wife and him whilst they lived at the Parramatta apartment and, in particular, that he claimed he picked the kids up after school and walked them to school, as he has had no work since that date.
Other claims in that affidavit show that there is a clear contest in both affidavits between the parties’ stories.
It is for this reason that, first, applying the principles which I now summarise for summary dismissal, it is not appropriate to summarily dismiss Ms Buenaobra’s claim on the material before me. Secondly, in relation to the application in a case for default judgment, given that Ms Buenaobra has at the last two appearances sought to participate, and that she has now filed an affidavit, again, I am not convinced that it is appropriate to order default judgment.
Lastly, as to the orders for dismissal based on Ms Buenaobra’s residency in the Philippines, the Fair Work jurisdiction in this Court is a no costs jurisdiction unless particular circumstances apply. Thus it does not follow that, because Ms Buenaobra is resident in the Philippines, she should not be permitted to proceed.
Summary judgment and default judgment principles
I next set out the principles that I have applied in deciding the following:
(a)in relation to the application in a case, that the orders should not be made and the application for default judgment, and other orders should be dismissed; and
(b)in relation to any application which I understand Mr Salman, in substance, to seek to make, that the matter should be summarily dismissed because Ms Buenaobra has no prospects, that it is not appropriate to exercise the Court’s powers to order summary judgment.
The principles relevant to the making for an order for default judgment, have been summarised as follows:
(a)the power afforded to the Court is discretionary. The discretion should generally be exercised with caution. However, the discretion is unfettered save for the requirement that a party be in default;
(b)the discretionary power to enter a judgment by default is enlivened when an applicant (the non‑defaulting party) makes an application to the Court for an appropriate order; and
(c)the requirement imposed is not that the applicant, in this case, the applicant on the application in a case for judgment, prove by way of evidence, the claim which they sought to be advanced, but the Court needs to be satisfied that there is default.
I am here applying a number of matters in the Federal Court and in this Court including Fair Work Ombudsman v IE Enterprises Proprietary Limited [2020] FCA 848 at [17] – [20], Fair Work Ombudsman v Mobile Food Vans and Trucks Pty Limited [2021] FCCA 882 at [16]‑[18] and Fair Work Ombudsman v Sober Kitchen Pty Ltd [2020] FCCA 2358 at [18] ‑ [19], [26] – [29].
Default judgment may be entered where a party’s participation in the proceeding is such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial in an acceptable period or where the non-compliance is continuing and occasioning unnecessary delay, expense or prejudice to the other party.
Consideration
In the present case, whilst the applicant was in default of the timetable to file all her evidence, that default has now, in large part, been remedied.
Secondly, the evidence shows that there is a genuine dispute between the parties, and that Ms Buenaobra shows that she wishes to proceed with her claim and to seek the compensation that I have adverted to in the pleadings.
Thirdly, Mr Salman’s evidence shows that there is a genuine dispute on his part and that of his wife, Ms Alesi, with the matters alleged by Ms Buenaobra.
It is clear, however, that, in respect of some matters at least, the respondents have contravened the Act, respectively, at least, on the face of the admissions to the Court and on the material, in that no payslips were provided, and there is no evidence that a Fair Work information statement was provided by them to Ms Buenaobra.
Whether a person is employed as a domestic worker at a person’s residence or whether a person is employed in a business, the employment circumstances are governed, in this kind of case, by the provisions of the Act.
The matter is complicated further in the present case because it appears that some, at least, if not most of Ms Buenaobra’s wages were paid in cash and there is no record which the respondents are able to provide showing in full the payments that were made. Thus, even if I were to accept, on the face of it, Mr Salman’s claims in his evidence, there are difficulties in my acceptance of it at this stage. That is because there is a clear contest that will arise between the credit of Ms Buenaobra, and the credit of Mr Salman and/or his wife, Ms Alesi. The matter is complicated further in the present case because both parties before me today are unrepresented.
The matter is further complicated because I am viewing both parties by video digital conferencing facilities. These circumstances make it more difficult for me in this case, and, given that this is an interlocutory application, it is inappropriate for me today to make a clear judgment about whether to believe Ms Buenaobra or Mr Salman.
Thus, in the absence of legal assistance, and in the absence of the parties being able to present the case in person, at this stage, I am not persuaded that it is appropriate to order a default judgment. Further, for these same reasons, I am not persuaded that Ms Buenaobra’s case satisfies the principles for summary judgment, which I have already read to both parties, before giving my reasons.
Given that I have stated them twice, I will incorporate by reference what has been said by Judge Driver in this Court in Open Eye Pty Ltd v Audio-Visual Copyright Society trading as Screenrights [2020] FCCA 7 at [12] – [13], and also in relation to strikeout at [15] – [16].
For these reasons, the application in a case must be dismissed, and, to the extent that Mr Salman has sought summary dismissal, I consider that that application, if made, would not succeed.
For the above reasons, it follows further that:
(a)in relation to some claims, Ms Buenaobra would succeed, at the very least, in respect of contraventions of the Act that I have referred to of lack of payslips, of no records, and on balance, on the lack of the Respondents’ provision of the Fair Work information statement; and
(b)as to the substance of the amounts of money that are in dispute, it seems to me that there is going to be a live issue between the two parties as to who to believe. The applicant has set out her estimates of her hours worked. Whilst Mr Salman attacked some of those hours, on the face of it, I consider it would be extremely unlikely that Mr Salman would be able to successfully attack all of those hours for the whole of the period claimed.
On the material presently before me my present view, whist necessarily preliminary, and with all the cautions I have already expressed, is that the end result would likely be that there would be some amounts of money that would be payable to Ms Buenaobra but perhaps not the whole of the claim that she now makes. I state this now to enable both parties to consider what the future course of the proceeding should be. This Court is a very busy Court, and, had there been no prospects, or had I been able to say it was appropriate to order default judgment, I would have had no hesitation in doing so. However, the material before me does not permit me to make those orders today.
The result is, as I have said, the application in a case should be dismissed.
The next step is, to ask each of you whether there is other material that you will rely on for hearing, and then to find a date for final hearing.
I will make orders accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Deputy Associate:
Dated: 17 September 2021
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