DARNA PTY LTD & ANOR v FAIR WORK OMBUDSMAN
[2014] FCCA 1106
•27 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DARNA PTY LTD & ANOR v FAIR WORK OMBUDSMAN | [2014] FCCA 1106 |
| Catchwords: INDUSTRIAL LAW – Default judgment – Second Applicant director not a person who has standing to apply for a review or setting aside of the Compliance Notice – failure by First Applicant company to appoint legal representation – failure to do an act required by the Federal Circuit Court Rules 2001 (Cth) – failure to prosecute the proceedings with due diligence or at all – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.716, 716(1)(a), 716(2)(a), 716(2)(b), 716(3)(a), 716(3)(e), 717 Federal Circuit of Australia Act 1999 (Cth), s.17(A)(2) Federal Circuit Court Rules 2001 (Cth), rr.9.04, 13.03(A), 13.03(B), 13.03(B)(1)(a), 13.03(C)(1)(c), 13.10(a) |
| Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595 Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 1105 KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361 |
| First Applicant: | DARNA PTY LTD (ACN 135 545 069) |
| Second Applicant: | YOAV OREN |
| Respondent: | FAIR WORK OMBUDSMAN |
| File Number: | MLG 55 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 27 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2014 |
REPRESENTATION
| The First Applicant: | No appearance |
| The Second Applicant | In person |
| Counsel for the Respondent: | Mr J. Tracey |
| Solicitors for the Respondent: | The Office of the Fair Work Ombudsman |
THE COURT ORDERS THAT:
The proceeding filed 7 January 2014 insofar as it is brought by, and relates to, the First Applicant be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The proceeding filed 7 January 2014 insofar as it is brought by, and relates to, the Second Applicant be dismissed pursuant to s.17A(2) of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the Second Applicant has no reasonable prospect of successfully prosecuting the claim.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 55 of 2014
| DARNA PTY LTD (ACN 135 545 069) |
First Applicant
| YOAV OREN |
Second Applicant
And
| FAIR WORK OMBUDSMAN |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
These proceedings commenced with an Application filed on 7 January 2014 by Darna Pty Ltd as the First Applicant and Mr Oren as the Second Applicant, with the Fair Work Ombudsman as the named Respondent.
The Application was supported by a Statement of Claim filed 7 January 2014. The orders sought by the applicants are set out in paragraph 12 of the Statement of Claim and are as follows:-
“(a) A declaration that the first and the second applicant did not contravened subsection 716(5) of the FW Act [the Fair Work Act 2009 (Cth)] by failing to comply with the compliance notice
(b). A declaration that the first and the second applicants have” a reasonable excuse” within the meaning of the FW Act for not complying with compliance notice.
(c) An order that the compliance notice should be amended and/or withdrawn
(d) An order pursuant to section 545 of the FW Act that the First respondent do not need to comply with the compliance notice
(e) An order pursuant to subsection 559(1) of the act that no interest should be paid the first respondent on the amount referred to in the compliance notice
(f) An order pursuant to subsection 546(1) of the FW Act that no pecuniary penalties should be imposed on the first Respondent in respect of the alleged contravention
(g) An order pursuant to subsection 546(1) of the FW Act that no pecuniary penalty should be imposed on the Second Respondent in respect of the alleged contravention”
The Respondent in reply filed a Response and Defence on 29 January 2014. The Respondent opposed the making of the orders as sought by the applicants.
The matter comes before the Court this day on an Application in a Case filed by the Respondent on 20 May 2014 seeking orders dismissing the proceedings against it in respect of each of the First and Second Applicants’ claims. The Court makes this day the orders that are sought by the Respondent for the reasons which are set out herein. The Court notes that the application of the Respondent is supported by an Affidavit affirmed by Caitlin Elizabeth Baillie on 20 May 2014. The contents of that Affidavit are evidence before the Court in the proceeding. That Affidavit was served upon the applicants.
The proceedings themselves concern a review of a Compliance Notice pursuant to s.717 of the Fair Work Act 2009 (Cth) (‘the FW Act’). The First Applicant was issued with a Compliance Notice on 28 May 2013, requiring it to pay Mr Moshe Itah the amount of $4,225.05 by 11 June 2013. The applicants applied to this Court on 7 January 2014 to review the Compliance Notice on the ground that the First Applicant had not committed the contraventions as set out in the Compliance Notice. The First Applicant’s failure to comply with the Compliance Notice and the Second Applicant’s alleged involvement in that contravention are the subject of other proceedings, which were commenced by the Fair Work Ombudsman in this Court and on 27 June 2013. Those proceedings are contained in court file number MLG932 of 2013. The Reasons delivered this day (being 27 May 2014) and in those proceedings, should be read in conjunction with these Reasons.[1]
[1] Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 1105.
On 7 January 2014, Mr Oren filed an Application in a Case seeking leave of the Court to represent Darna Pty Ltd in the proceedings numbered MLG932 of 2013. Mr Oren also sought in that application to act on Darna Pty Ltd’s behalf in respect of these proceedings, being proceedings numbered MLG55 of 2014. The Court determined in a decision made on 28 March 2014, that it would not exercise its discretion to grant leave to Mr Oren to appear for Darna Pty Ltd upon the hearing of the applications.[2] It thus dismissed the Application in a Case filed on 7 January 2014 by Mr Oren.
[2] Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595.
Subsection 17(A)(2) of the Federal Circuit of Australia Act 1999 (Cth) provides that:-
“(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.”
Rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’) provides that:-
“13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
…”
In accordance with s.717 of the FW Act, a person who has been given a notice pursuant to s.716 of the FW Act, that is a compliance notice, can apply to this Court for a review of the compliance notice. The relevant Compliance Notice in these proceedings was given not to the Second Respondent, but to the First Respondent. It was, as submitted by counsel for the Respondent:-
a)sent to the registered office of the First Applicant;
b)determined that the First Applicant had contravened provisions of a modern award and the national employment standards pursuant to s.716(1)(a) of the FW Act;
c)required the First Applicant to take specific action to remedy the direct effects of the identified contraventions pursuant to s.716(2)(a) of the FW Act;
d)required the First Applicant to produce evidence of compliance with the Compliance Notice pursuant to s.716(2)(b) of the FW Act;
e)set out the name of the First Applicant pursuant to s.716(3)(a) of the FW Act; and
f)explained that the First Applicant may apply to an eligible Court for review of the Compliance Notice pursuant to s.716(3)(e) of the Act.
The Second Applicant is not a person who has standing to apply for a review or setting aside of the Compliance Notice under s.717 of the FW Act. It is the company, Darna Pty Ltd, which has such standing. Accordingly, the application insofar as it is brought by, and relates to, the Second Applicant is groundless and there is no reasonable prospect of it being successfully prosecuted. It is appropriate, in these circumstances, to dismiss the application insofar as it relates to the Second Applicant.
Rule 13.03(B)(1)(a) of the FCC Rules includes provisions that a proceeding be stayed or dismissed in whole or in part where an applicant is in default. The Court’s power to enter default judgment is discretionary.
Rule 13.03(A) of the FCC Rules provides that an applicant will be in default for the purposes of r.13.03(B) if the applicant fails to:-
“…
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
…”
Rule 13.03(C)(1)(c) of the FCC Rules further provides that if an applicant is absent from a hearing, the Court may dismiss the application.
This Court earlier determined that the Applicant was required to be represented in these proceedings by a lawyer. Rule 9.04 of the FCC Rules provides that:-
“Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.”
A failure by a company that is party to civil litigation to appoint legal representation has been considered both a failure to do an act required by the FCC Rules and a failure to prosecute the proceedings with due diligence.[3] It is appropriate that the Court exercise its discretion to dismiss the application insofar as it relates to the First Applicant. The First Applicant has failed to comply with r.9.04 of the FCC Rules and thus has failed to do any act required to be done by the FCC Rules. The First Applicant has also failed to prosecute these proceedings with due diligence and has demonstrated an unwillingness and inability to cooperate with the Court and the Respondent to progress the proceedings.
[3] KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361 at [24].
Much of the evidence in respect of these conclusions is set out in the Affidavit of Ms Caitlin Elizabeth Baillie affirmed 20 May 2014. In that Affidavit and in paragraphs 4 to 13 inclusive therein, Ms Baillie deposes that prior to the Second Applicant filing the Application in a Case seeking leave to represent the First Applicant, the Respondent’s solicitors informed the First Applicant on no less than eight occasions of the requirement that a company must be legally represented in order to participate in proceedings.
Paragraphs 14 to 20 inclusive of Ms Baillie’s Affidavit affirmed 20 May 2014 deposes to the attempts by the Respondent’s solicitors to engage with any legal representatives of the First Applicant following the decision of this Court that legal representation was required by the First Applicant.
To this day, the First Applicant has not obtained a lawyer, and it is clear to the Court that the Second Applicant has no current intention of obtaining legal representation for the First Applicant. He has had ample time to take such step. His failure to appoint a lawyer in the approximately eight weeks that have elapsed since the Court determined that the company could not appear without a lawyer, constitutes a failure to do an act required to be done by r.9.04 of the FCC Rules.
The Court also accepts the submissions of counsel for the Respondent that the First Applicant’s failure to obtain legal representation constitutes a failure to prosecute the application with due diligence in that the First Applicant:-
a)has no capacity to take any steps in proceedings other than with legal representation;
b)has frustrated the Respondent’s attempts to set a timetable to progress the proceedings, resulting in no steps being taken since the court hearing on 13 March 2014; and
c)has indicated through the Second Applicant that it does not intend to take the steps that would enable it to participate in the proceedings which include an appearance by the Respondent at the hearing this day, noting no representation was forthcoming on the part of the Respondent. The Second Applicant instead this day sought to reagitate the issue of legal representation for the First Applicant despite that issue having been determined by the Court in the judgment delivered on 28 March 2013.[4] Accordingly, the Application which commenced these proceedings on 7 January 2014 is dismissed.
[4] Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 11 June 2014
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