Coghlan v Northern Rise Village Services Pty Ltd
[2022] FedCFamC2G 202
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Coghlan v Northern Rise Village Services Pty Ltd [2022] FedCFamC2G 202
File number(s): BRG 606 of 2020 Judgment of: JUDGE VASTA Date of judgment: 7 March 2022 Catchwords: INDUSTRIAL LAW – small claims – application for review of registrar’s decision – request for pro bono assistance Legislation: Federal Circuit and Family Court (General Federal Law) Rules 2021 (Cth): r 13.06
Hospital Industry (General) Award 2010,
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submission/s: 7 March 2022 Date of hearing: 7 March 2022 Place: Brisbane Solicitor for the Applicant: Wilson Ryan Grose Lawyers Counsel for the Respondent: Mr Trewavas Solicitor for the Respondent: Aj & Co Lawyers ORDERS
BRG 606 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEVERLEY COGHLAN
Applicant
AND: NORTHERN RISE VILLAGE SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to sub-rule 12.01(1) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) the Applicant be referred by a Registrar to a lawyer on the pro bono panel for legal assistance in relation to this proceeding.
2.The application be adjourned to 2 September 2022 at 10:00am for hearing (with an estimated hearing time of 1 day) in the Federal Circuit and Family Court of Australia sitting at Brisbane.
3.No later than 4:00pm on 12 August 2022, the applicant shall file and serve upon the respondent an outline of argument setting out:
(a)all issues of fact and law that the applicant contends are raised by the application and the response thereto;
(b)the findings of fact and conclusions of law contended for by the applicant; and
(c)all relevant authorities (including references to particular passages of those authorities) relied upon by the applicant.
4.No later than 4:00pm on 19 August 2022, the respondent shall file and serve upon the applicant an outline of argument setting out:
(a)all issues of fact and law that the respondent contends are raised by the application and the response thereto;
(b)any agreed findings of fact or conclusions of law the Court will be invited to make having regard to the applicant’s outline;
(c)the findings of fact and conclusions of law otherwise contended for by the respondent; and
(d)all relevant authorities (including references to particular passages of those authorities) relied upon by the respondent.
5.No later than 4:00pm on 26 August 2022, the applicant shall file and serve upon the respondent a further document setting out any agreed findings of fact or conclusions of law that the Court will be invited to make having regard to the respondent’s outline.
IT IS NOTED:
A.That given the seriousness of this matter, the Court considers that pro bono legal assistance for the Applicant is appropriate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 27 September 2021, Registrar Lynch made an order that the Respondent pay $6900.16 to the Applicant by way as compensation for underpayment of wages. The matter had gone to a hearing that day where the Applicant appeared in person, but there was no appearance on behalf of the Respondent.
Registrar Lynch had decided the matter pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court (General Federal Law) Rules 2021 (Cth) (“the Rules”), which allowed her to conduct the proceeding on the merits. That means that the decision has been made. It is a different procedure to a hearing that occurs pursuant to r 13.06(1)(c) in that such a decision is made in default of appearance.
In this matter, Registrar Lynch has looked at the merits of the matter. It would seem in looking at the merits of the matter, Registrar Lynch has determined that the Respondent has had a reasonable opportunity to attend and to be heard, and has looked at the other merits of the matter.
So, the matter has come before me in somewhat of a bizarre way. An application in a case for the matter to be set aside was made. One would have thought that such would be a matter that could be dealt with by the Registrar as well, given that it is a matter that the Registrar dealt with in the first place, but instead it was sent to me. The application sought were that I order that the matter be set aside pursuant to r 17.05. That Rule exists to allow reinstatement in a case where a party was not present (as well as a number of other circumstances). To allow a Court to reinstate a hearing because someone was not present ensures that if a matter is simply decided because someone did not attend, that such a decision can be revisited. That is not the case here. This is a matter that has been decided on the merits. It would seem to me that the appropriate avenue would have been an appeal.
However, that has not been sought here. I have asked whether it is a review application and I’ve been told that it isn’t. But the more I heard the submissions, the more obvious it became that what was being argued was a review because what is being sought is a new hearing or a hearing de novo. It seems to me then that that is truly what is being sought.
There are reasons for the hearing de novo. Firstly, the Registrar proceeded on a basis that the Respondent had had the opportunity to be present and be heard. What transpires, on the evidence before me, is that Registrar Buckingham had ordered, on 31 August, for the Applicant to post a copy of the order that he made, plus the affidavits and originating application to the registered office of the Respondent.
Whilst that may have been a proper order, it seems to me that without it being sent by registered post (where the person who is the addressee must sign for the document), there is no way for the Court to truly know whether the Respondent had been in a position to be present and be heard.
It has been explained to me (through an affidavit of a Mr Irthier) that the office of the Respondent is in Melbourne, and during the period of August and September were in a lockdown situation where there could only be minimal entry to the workplace, and only by persons who had the proper permit. This meant, according to Mr Irthier, that mail was not regularly collected and certainly was not regularly opened. He deposes to the fact that the material that was sent by the Applicant (which, it would seem, was not marked in any envelope to show any official nature, or that it was urgent) was collected on 27 September 2021 and opened on 30 September 2021. Registrar Lynch conducted the hearing on 28 September 2021.
The other aspect to the matter is that the Applicant was a fly in, fly out worker who was paid according to an employment contract. The employment contract noted that the employment was governed by the Hospital Industry (General) Award 2010, and applicable legislation including the National Employment Standard (“NES”), but that neither the Award or any applicable legislation of the NES are incorporated into the employment contract. Under the Hospitality Industry Award, there is a provision for deductions to be made from persons’ wages as long as such deduction is not unreasonable.
What the Applicant was claiming in her application was that there had been deductions made while she was a fly-in fly-out worker. This allegation was admitted by the Respondent.
I have annexure BJC4 to the affidavit of the Applicant filed on 24 August 2021. That annexure is an email sent by Mr Irthier to the Applicant, which says that, in accordance with the clause, the Respondent has “made a deduction of $215.63 per working week for the provision of meals and an accommodation servicing charge for the period 1 July 2019 to 30 June 2020. As the above is not a direct payment made by yourself, it is instead an authorised deduction from the award. There is no ability to provide you with a receipt”.
The Applicant had argued to the Registrar that the Award did not apply to her, but that if the Award did apply to her, the deduction was unreasonable.
It seems to me then that the grounds of any review are:
(a)there was no opportunity to be present and be heard;
(b)that the Award did apply to the Applicant; and
(c)that any deductions from the Award were reasonable.
Whilst the Respondent still pressed their original application to have the judgment set aside, this is a small claims matter. What would invariably happen is that the matter, if I did set it aside, would go back to the Registrar.
As a result of the complex nature of the matter, there would be an application for the Respondent to be legally represented. That would probably put an onus on the Applicant to be legally represented. But one would think that the Registrar, given the nature of the matter, as it now was, would send the matter to this Court to be dealt with. The matter would come before this Court on a duty day and then be set down for hearing. It seems to me that there would be two Court events before the matter is heard.
By categorising this matter as a review with the three grounds of which I have spoken, I can set the matter down safely for a hearing and each side will then have the opportunity to put proper arguments before me.
The Applicant today has been represented and Ms Morton, whom I thank for the very helpful submissions she has made, has said that there is an inevitability that the same result would be achieved. She may very well be right in that assessment, but it’s very difficult for me to tell at this stage whether that is right or not. For that reason, it is better to, again, to treat this matter as a review. What Ms Morton has said is also correct that by doing this, it means that the Applicant is forced to, in effect, defend a review on very complex grounds that the small claims jurisdiction was actually never meant to have to adjudicate upon.
For this reason, I am making a very strong recommendation that the matter be referred to the pro bono panel of the Bar Association because the ramifications of any such judgment can be far-reaching. This is especially so for fly-in fly-out workers, many of whom are employed under the Award. The Court will really be asked to look at the reasonableness or otherwise of any deduction. That is why this has such far-reaching consequences and why it would be good if either the pro bono panel of the Bar Association or the Legal Aid employment section were to take up the cudgels for the Applicant in this matter.
It also for these reasons that I will have my reasons transcribed.
I will set the matter down for a hearing on 2 September 2022, which will give all of the parties more than sufficient opportunity to get everything ready for the matter.
I certainly can understand the frustration of the Applicant having received a judgment in her favour of some $6000, and, yet, she would, because of the orders I’ve made, need to wait another almost 12 months to know whether or not she will still receive that award. I apologise to the Applicant for putting her through this but as I’ve said, this is an important question and it needs to be handled properly.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 12 April 2022
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