Carbone v James McConvill & Associates

This matter concerned an application for the assessment of damages, pecuniary penalties, and costs, remitted to the Federal Court by the Federal Court of Australia. The applicant, a legal practitioner, had been employed by the respondents, a legal partnership and its successor company, under various agreements. The applicant alleged he was not paid his full entitlements, including superannuation and leave, and that the respondents made false and misleading representations regarding his remuneration, financial capacity, record-keeping, and compliance with the Fair Work Act 2009 (Cth).

The court was required to determine the quantum of compensation for loss suffered by the applicant due to admitted breaches of the Fair Work Act. The applicant sought compensation under s 545 of the Fair Work Act, arguing that certain pleadings constituted a deemed admission that fixed the compensation at two years' pay. The respondents contended that the applicant had not pressed his claim for contractual damages and that the assessment of compensation should not be fixed by the pleadings alone.

McNab J found that the applicant's pleadings did not fix the quantum of compensation for breaches of the Fair Work Act. While the pleadings outlined the ambit of the applicant's claim for compensation and asserted loss and damage resulting from contraventions, they did not contain material facts that were deemed admitted to fix the compensation amount. The court held that it was the court's task to assess the appropriate compensation flowing from the admitted breaches.

The court also considered the respondents' submissions regarding costs. The respondents argued that they should be awarded costs for the assessment proceedings and for the hearing on 29 July 2020, as the applicant had not pressed his contractual damages claim and had not adequately trimmed his claims prior to the hearing. The court indicated that it was appropriate to award the respondents their costs in the assessment and potentially some of their costs for the hearing.