Buenaobra v Alesi

In this matter before the Federal Circuit and Family Court of Australia, Ms Buenaobra sought monetary orders against Ms Alesi and Mr Salman for alleged contraventions of the Fair Work Act 1996 (Cth) and for breach of contract. Ms Buenaobra claimed compensation for losses arising from these contraventions, including unpaid leave loading, and sought interest and penalties. Ms Buenaobra was employed as a domestic worker by Ms Alesi and Mr Salman in their private home between January 2015 and November 2017. Mr Salman represented his wife, Ms Alesi, who was overseas, and filed affidavits disputing elements of Ms Buenaobra's claim, including the provision of payslips and record-keeping, which he attributed to their understanding that cash payments were not subject to tax and that they were not a business.

The court was required to determine whether to grant default judgment or summary judgment in favour of Ms Buenaobra, or to dismiss the proceedings. Specifically, the court considered whether the respondents' conduct warranted default judgment, and whether Ms Buenaobra's case had sufficient prospects to proceed to summary judgment. The court also considered whether Ms Buenaobra's residency in the Philippines should lead to a dismissal of the case.

Justice Baird noted that while Ms Buenaobra had been in default of the evidence timetable, this had largely been remedied. The court found that there was a genuine dispute between the parties, with both Ms Buenaobra and Mr Salman demonstrating a desire to pursue their respective positions. Crucially, the court observed that the respondents had, on the face of admissions and available material, contravened the Act by failing to provide payslips and a Fair Work Information Statement. The court also highlighted difficulties in accepting Mr Salman's evidence due to the lack of comprehensive records of cash payments, creating a contest of credit between the parties. Given these complexities, the unrepresented status of both parties, and the use of video conferencing, the court deemed it inappropriate to make a definitive judgment on the merits at this interlocutory stage.

Consequently, the court dismissed the applications for default judgment and summary judgment. The court found that the circumstances did not warrant default judgment, as the respondents' participation did not indicate an inability or unwillingness to cooperate, nor was there continuing non-compliance occasioning unnecessary delay or prejudice. Furthermore, the court was not persuaded that Ms Buenaobra's case met the principles for summary judgment, nor that her residency abroad should lead to dismissal, as the Fair Work jurisdiction is generally a no-costs jurisdiction.