Cavendish v BAZZA'S Bakeries Pty Ltd Trading as BAZZA'S BAKEHOUSE - [2014] FCCA 239

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAVENDISH v BAZZA’S BAKERIES PTY LTD TRADING AS BAZZA’S BAKEHOUSE

[2014] FCCA 239

Catchwords:
PRACTICE AND PROCEDURE – Judgment by default – judgment pursuant to FCCR 13.03B(2)(c) – application not accompanied by statement of claim – judgment refused.

Legislation:

Fair Work Act 2009, ss.117, 119, 340, 341(1)(b)

Federal Circuit Court Rules 2001, rr.4.05(2)(b), 13.03A(2), 13.03B(2), 13.03B(2)(c), 13.03B(2)(d) 45.06(b)

Australian Competition and Consumer Commission v Yellow Page Marketing BV and Yellow Publishing Limited (No.2) (2011) 195 FCR 1

Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.1) [2013] FCCA 1926
McCluskey v Karagiozis [2012] FCA 1137

Applicant:

DEBRA CAVENDISH

Respondent:

BAZZA’S BAKERIES PTY LTD TRADING AS BAZZA’S BAKEHOUSE

File Number:

BRG 853 of 2013

Judgment of:

Judge Jarrett

Hearing date:

13 February 2014

Date of Last Submission:

13 February 2014

Delivered at:

Brisbane

Delivered on:

18 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr Dwyer

Solicitors for the Applicant:

Sciacca’s Lawyers and Consultants

There being no appearance for the Respondent

ORDERS

The application for default judgment pursuant to FCCR 13.03B(2)(c) is dismissed.
The application be adjourned for further mention at 9.30am on Monday, 3 March, 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 853 of 2013

DEBRA CAVENDISH

Applicant

And

BAZZA’S BAKERIES PTY LTD TRADING AS BAZZA’S BAKEHOUSE

Respondent

REASONS FOR JUDGMENT

This application was listed for final hearing before me on 28 January, 2014. On that day the parties informed me that the application had been settled. They wished for the matter to be adjourned to the Registry. I refused to so adjourn the application, but rather, adjourned it to 13 February, 2014 for final hearing. In the event that the application was not finally resolved by that date, my intention was that it would proceed to hearing.
The application has not settled. On 13 February, 2014 the applicant appeared by Counsel and wished for the trial to proceed. There was no appearance for the respondent. In accordance with the previous orders, the application proceeded to a hearing.
In the absence of an appearance by the respondent, the applicant made application to the Court for judgment pursuant to rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001. The applicant submitted that the respondent in these proceedings was in default for the purposes of that rule.
Relevantly FCCR 13.03A(2) provides:
13.03A When a party is in default
…
(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.

I am satisfied that the respondent has:
a)not satisfied the applicant’s claim; and
b)has failed to defend the proceeding with due diligence because of the respondent’s failure to appear on the day fixed for hearing of the claim.
I find that the respondent is in default for the purposes of FCCR 13.03B(2).
The applicant seeks judgment pursuant to FCCR 13.03B(2)(c). Relevantly, FCCR 13.03B(2) provides:
13.03B Orders on default
…
(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.

Relying upon Australian Competition and Consumer Commission v Yellow Page Marketing BV and Yellow Publishing Limited (No.2) (2011) 195 FCR 1 (at 14) and Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.1) [2013] FCCA 1926 the applicant submits that an order for default judgment does not require proof of the claim by evidence, but only requires that:
a)on the face of the statement of claim there is a claim for the relief sought; and
b)the claim falls within the jurisdiction of the Court.
However, a difficulty for the applicant is that FCCR 13.03B(2)(c) has no application. Rule 13.03B(2)(c) only applies where the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings.
Here, the proceedings were commenced by an application and a form 2 claim filed generally pursuant to Division 45.3 of Part 45 of the FCCR. The claim was not commenced by an application and a statement of claim. Statements of claim are authorised by FCCR 4.05(2)(b). What the applicant filed with her application was not a statement of claim for the purposes of FCCR 4.05(2)(b) or 13.03B(2)(c). It was a claim in accordance with the approved form authorised by FCCR 45.06(b).
A perusal of the claim filed by the applicant on 24 September, 2013 reveals that it is not in the form of a pleading. Whilst there are some general allegations of a breach of the Fair Work Act 2009 (Cth) by the respondent which might be sufficient to support orders under that Act, the claim does not set out the orders that the Court is asked to make, except in the most general of terms. The relief claimed in the form 2 claim is for “Compensation” (without any quantification of her claim) and “Pecuniary penalty”. The application, which was also filed on 24 September, 2013, is even less helpful.
The making of an order pursuant to FCCR 13.03B(2)(c) is not, in the circumstances, authorised by the FCCR. The application for orders pursuant to that rule must be dismissed.
Arguably, I could give judgment pursuant to FCCR 13.03B(2)(d). That rule authorises the Court to give judgment or make any other order against the respondent. Before I consider the application of that rule further, I will recount some of the facts of the matter.
In that respect, the applicant relied upon:
a)the application (BRG 853/13) filed 24 September, 2013;
b)the claim filed 24 September, 2013; and
c)the affidavit of Debra Cavendish filed on 10 February, 2014.
The applicant also submitted that I should have regard to the material filed by the respondent, although she did not formally read that material. That material was:
a)the response filed 22 November 2013; and
b)the affidavit of Samuel Barry Abbott filed 22 November, 2013.
The material reveals that the applicant commenced employment with the respondent on 29 June, 2010. The respondent’s business was located at Petrie.
At all relevant times the applicant believed that the respondent operated a number of bakeries, including another store at Murrumba Downs. However, the stores were operated by different entities, albeit both entities were controlled by Samuel “Barry” Abbott.
The applicant was involved in some disputation with the respondent in late 2011 and early 2012. Those events are not the subject of this claim.
In May, 2012 the applicant sustained a work related injury to her left arm. As a consequence of her injury the applicant had periods off work between 21 June and 17 September, 2012.
The applicant’s rehabilitation and return to full duties was impeded by a lack of suitable light duties within the respondent’s business.
Prior to her injury in May, 2012, and for the periods immediately following, the applicant had been employed exclusively to work at the Petrie store. She remained so employed until September, 2012.
Upon her return to light duties, as a consequence of discussions between the applicant, Barry Abbott and Julie Abbott, the applicant was deployed to the store at Murrumba Downs. The basis for this redeployment was the apparent availability of more suitable light duties at the Murrumba Downs store.
At no time was the applicant informed that the redeployment to Murrumba Downs would give rise to a transfer of her employment to another employer. At no time did the applicant consent to such transfer of employment. It is trite that employment may not be transferred without the consent of an employee: McCluskey v Karagiozis [2012] FCA 1137.
The applicant commenced light duties at the Murrumba Downs store in September, 2012. During that time she sustained a further workplace injury which prolonged her rehabilitation and required some further absences from work between November and December, 2012.
In April, 2013 the applicant received a clearance to return to full duties. At that time she enquired about her deployment back to the Petrie store. She was asked to remain working at the Murrumba Downs store.
The applicant was conscious that the Murrumba Downs store was not trading well and that her hours of work might be affected by this. After a discussion with Barry Abbott whereby he agreed that the applicant’s employment conditions (e.g. hours of work) would be essentially ‘tacked’ to the Petrie store, the applicant agreed to continue working at Murrumba Downs.
In July, 2013 the applicant was advised (without notice) that the Murrumba Downs store was closing and her position was redundant. Despite assurances from Barry Abbott and a consultant engaged by him, no redundancy payment was ever made to the applicant.
The applicant alleges that her termination was adverse action within the meaning of s.340 of the Fair Work Act2009. The applicant submits that the adverse action was taken because she exercised a workplace right within the meaning of s.341(1)(b), namely that she initiated a process under a workplace law.
Consequently, the applicant seeks an order for compensation in the amount of $10,000.00 which is said to represent an amount which is approximately equivalent to the applicant’s notice and redundancy entitlements pursuant to ss.117 and 119 of the Fair Work Act plus a further amount for compensation generally due to “ongoing unemployment”. The applicant seeks a declaration that the respondent has contravened a civil remedy provision of the Act and she seeks the imposition of a “civil penalty in the range of $5000.00 to $10000.00 made payable to the applicant”. She also seeks costs.
Leaving aside the issue of whether any judgment entered pursuant to FCCR 13.03B(2)(d) must be supported by evidence which would entitle the Court to conclude that the orders claimed were justified, there are a number of other hurdles in the way of the applicant’s pursuit of the default judgment claimed.
First, there is no explanation in the evidence, or otherwise, of the terms and conditions of the applicant’s employment or any industrial instruments that might bear on her employment and specifically, her entitlement to notice of termination of her employment or any redundancy entitlements.
Secondly, there is no evidence, explanation or indeed a single mention in the application, form 2 claim, affidavit of the applicant or her Counsel’s written submissions of the applicant’s relevant rate of pay by which, presumably, her claim for compensation is calculated.
Thirdly, there is nothing by way of explanation, or evidence, that would suggest that an order which includes compensation for “ongoing unemployment” is appropriate or how such an order should be calculated.
Put shortly, even if I was minded to enter judgment against the respondent, there is no explanation in the applicant’s application, form 2 claim, her affidavit or her Counsel’s written submissions that would allow me to be satisfied that the orders now sought by the applicant (and never before particularised in any of the material before the Court) are appropriate.
The application for default judgment pursuant to FCCR 13.03B(2)(c) is dismissed. The application will stand over for further mention at 9.30am on Monday, 3 March, 2014.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 18 February, 2014

Associate:

Date: 18 February 2014