Crawford v Geocore Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Crawford v Geocore Pty Ltd [2024] FedCFamC2G 176

File number: MLG 1412 of 2023
Judgment of: JUDGE FORBES
Date of judgment: 1 February 2024
Catchwords: FAIR WORK – application for default judgment against respondents – where applicant unlawfully stood down from full-time employment – where applicant filed application in Fair Work Commission – where FWC ordered reinstatement – where respondents did not comply with FWC order – where respondents altered applicant’s employment to casual – repudiation – claims for unpaid wages, payment in lieu of notice and accrued annual and long service leave – alleged contravention of general protections provisions of Fair Work Act – respondents failed to engage in proceedings – default judgment ordered
Legislation:

Fair Work Act 2009 (Cth) s 44, 90, 117, 340,527, 545, 547, 550

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44, 211

Division: Division 2 General Federal Law
Number of paragraphs: 17
Date of hearing: 1 February 2024
Place: Melbourne
Solicitor for the Applicant: Sparke Helmore
Respondents: No appearance

ORDERS

MLG 1412 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ELIZABETH CRAWFORD

Applicant
AND:

GEOCORE PTY LTD

First Respondent

AMANDA BROWN

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

1 FEBRUARY 2024

UPON the admissions the First Respondent is taken to have made, consequent upon default by the First Respondent pursuant to rule 13.04(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCA Rules) and

UPON the admissions the Second Respondent is taken to have made, consequent upon default by the Second Respondent pursuant to rule 13.04(2) of the FCFCA Rules, and the Second Respondent being taken to have admitted to being involved in the contraventions of the Fair Work Act 2009 (Cth) (FW Act), of the First Respondent pursuant to section 550 of the FW Act

THE COURT ORDERS THAT:

Judgment

1.Default judgment is entered for the Applicant against the Respondents pursuant to sub-rule 13.05(2)(c) of the FCFCA Rules.

Compensation

2.Pursuant to section 545(2)(b) of the FW Act, the First Respondent and Second Respondent, jointly and severally pay to the Applicant the following amounts within 14 days, less applicable taxation:

(a)$10,414.10 in respect of her entitlement to be paid out her accrued but untaken annual leave and annual leave loading upon the end of her employment as required by section 90 of the FW Act; and

(b)$6,249.10 in respect of her entitlement to payment in lieu of notice as required by section 117 of the FW Act. Any payment by the Respondents in respect of the amount ordered to be paid in order (b), is to also be offset against the amount ordered to be paid at Order 6 below.

3.Pursuant to section 44(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act), the First Respondent pay to the Applicant, in respect of entitlements…

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Details
Case
[2024] FedCFamC2G 176
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Crawford v Geocore Pty Ltd concerns an application by Ms Crawford for default judgment against her former employers, Geocore Pty Ltd and Ms Brown, for various breaches of employment and statutory rights. Ms Crawford, a former full-time employee of Geocore, claims she was unlawfully stood down, leading to a stand-off that resulted in her employment being converted to casual without her consent, which she alleges constituted a repudiation of her contract. She further claims that Geocore and Ms Brown engaged in adverse action against her in contravention of the Fair Work Act 2009 (Cth) (FW Act). The court was required to determine whether default judgment should be granted due to the respondents' failure to engage in the proceedings and whether the claims presented in the statement of claim were sufficiently substantiated to warrant such a judgment.

The court found that the respondents had entirely failed to participate in the litigation, having not filed notices of address for service, responses or defences, and not attended any directions hearings. This complete non-engagement by the respondents triggered the application for default judgment under rule 13.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The court held that the application was made appropriately and in accordance with the rules, and the relief sought by Ms Crawford appeared to be within the court's jurisdiction and power to grant. The court further noted that while the respondents had not filed any defence or evidence, there was no apparent defence that would prevent the granting of default judgment. Regarding the claim against Ms Brown for accessorial liability under section 550(1) of the FW Act, the court was satisfied that the statement of claim properly pleaded a case that, if proven, would result in such liability.

The court granted the application for default judgment with certain amendments to the proposed orders. The court required the second proposed order to separately identify each of the sums sought pursuant to section 545 of the FW Act and reduced the amount for non-economic loss arising from the alleged contravention of section 340 of the FW Act to $10,000, exercising caution appropriate for a default judgment order. The court's final orders provided for the relief sought by Ms Crawford, including payment of unpaid wages, payment in lieu of notice, accrued annual and long service leave, and damages for contravention of the general protections provisions of the FW Act and for adverse action, with the specified amendments.

Orders

Orders of the court

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Background

Background to the litigation

The written outline was further developed orally by the applicant’s solicitor, Mr Sherr, at the hearing of the default judgment application.BACKGROUND In the substantive matter before the Court, Ms Crawford alleges that she was a full-time employee of Geocore. The applicant was employed as a Report Writer and was covered by the Clerks – Private Sector Award 2020. During the course of Ms Crawford’s employment she was subjected to an unlawful stand-down. As a consequence of the unlawful stand-down, she seeks to be paid in accordance with her then contract of employment, including entitlements arising from its termination. The unlawful stand-down necessitated Ms Crawford to make an application to the Fair Work Commission (FWC). Subsequently, Commissioner Mirabella deemed the stand-down to be unlawful and an order was made on 21 October 2022 for Geocore to return Ms Crawford to work. That did not occur, and Ms Brown on behalf of Geocore, then purported to alter the nature of Ms Crawford’s employment to casual employment, an act which is pleaded in the statement of claim as being a repudiation of the contract. That repudiation was shortly thereafter accepted by Ms Crawford. As a result of the events pleaded in the statement of claim, various causes of action are alleged. Those causes of action include:(1)a failure on the part of Geocore to pay or to make a payment in lieu of notice pursuant to section 117 of the Fair Work Act 2009 (Cth) (FW Act); (2)a failure on the part of Geocore to pay Ms Crawford her wages and accrued but untaken annual leave on termination pursuant to section 90 of the FW Act; and (3)that Geocore and Ms Brown engaged in adverse action against Ms Crawford pursuant to section 340 of the FW Act. The adverse action claim arises from Ms Crawford having made complaints to the FWC and for having raised other complaints and inquiries regarding her employment and entitlements relating to her employment. She says that she exercised, or purported to exercise, or was prevented from exercising, various workplace rights. The adverse action alleged includes the purported conversion of her full-time employment to casual and the repudiation of her contract of employment. She alleges that, as a result of the adverse action, she suffered, among other things, non-economic loss including depression, anxiety and disturbance to important life plans for retirement and post-retirement. Ms Crawford deposes to the nature of that loss and the impact upon her of the adverse action in an affidavit which has been filed in support of this application[1].[1] Affidavit of Elizabeth Crawford affirmed on 16 November 2023 at [55] to [59] The application for default judgment has been made on the grounds that the first respondent, Geocore, and the second respondent, Ms Brown, have failed to engage in this proceeding in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) and have failed to comply with various orders made by me during the course of these proceedings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There has been a complete failure on the part of the two respondents to engage in the litigation. Despite the applications having been served, the respondents have not filed notices of address for service and have not filed responses or defences. The respondents have failed to attend the various directions hearings which have been listed.CONSIDERATION I am satisfied that the respondents are in default within the terms of rule 13.04 of the Rules. As a consequence of that default, my discretion is enlivened to make orders pursuant to rule 13.05, including giving judgment for the applicant for the relief sought in the application. For default judgment to be granted pursuant to rule 13.05 where a proceeding was commenced by an application supported by a statement of claim, the Court must be satisfied that Ms Crawford appears to be entitled to the remedies that she seeks or the relief that she seeks as pleaded in that statement of claim. I also need to be satisfied that the relief sought by Ms Crawford is within the power of the Court to grant. The power afforded to me is discretionary, and I must exercise the discretion to grant default judgment with caution. In my view, the application has been made appropriately and in accordance with the rules. Ms Crawford is not required to prove by way of evidence the claim which is sought to be advanced, but the Court does have to be satisfied on the face of the statement of claim that the applicant appears entitled to the relief claimed. I am satisfied that I have power to grant the relief sought by the statement of claim. This Court plainly has statutory power to make orders relating to contraventions of the FW Act and an associated jurisdiction to make orders for breaches of contract. I need to be satisfied that each element of the various causes of action have been properly pleaded in the statement of claim, and I am so satisfied. I am satisfied that the statement of claim filed on behalf of Ms Crawford complies with the rules of pleading and properly pleads the various causes of action, including those under the FW Act and at common law. Of course, in this case, the respondents have not filed any defence or any evidence, so it is unnecessary for me to speculate about what the respondents might say if they had engaged in this proceeding. However, having read the outline of submissions filed in this application and the affidavit in support, I am satisfied that there is no obvious defence which would prevent me from making the orders for default judgment. As to the liability of the second respondent, Ms Brown, I accept the submissions that the statement of claim pleads a case, which, if it was proven at trial, would give rise to a finding of accessorial liability against her pursuant to section 550(1) of the FW Act. Having said all those things, I am satisfied that the orders proposed by the applicant’s solicitor Mr Sherr should be made subject only to the following amendments:(1)that proposed order 2 be amended to separately identify each of the sums sought pursuant to section 545 of the FW Act; (2)that order 7(b) relating to non-economic loss arising from the alleged contravention of section 340 of the FW Act should be amended to $10,000. In relation to that last point, my view is that, having regard to the evidence before me and exercising appropriate caution in relation to a default judgment order, the amount of $10,000 falls comfortably within the assessment I would make at final trial. If the matter went to final trial, I am less confident about the amount of $20,000 in that respect.