Director of the Fair Work Building Industry Inspectorate v Zion Tiling Pty Ltd

[2013] FCCA 769

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v ZION TILING PTY LTD & ANOR [2013] FCCA 769

Catchwords:
INDUSTRIAL LAW – Alleged contravention of Act and Award – liability – default judgment.

PRACTICE AND PROCEDURE – Default judgment – default in compliance with requirements to file and serve response and defence.

Legislation:

Building and Construction General On-Site Award 2010
Fair Work Act 2009 (Cth), ss.44(1), 45, 535, 536, 545(1), 716
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 9.04, 13.03A(2), 13.03B(2)(c)

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Applicant: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent: ZION TILING PTY LTD

Second Respondent: TAE YOUNG YOON

File Number: PEG 49 of 2013

Judgment of: Judge Lucev

Hearing date: 11 July 2013

Date of Last Submission: 11 July 2013

Delivered at: Perth

Delivered on: 11 July 2013

REPRESENTATION

Counsel for the Applicant: Mr J King

Solicitors for the Applicant: Fair Work Building and Construction

For the Respondents: No appearance

DECLARATION AND ORDER

1. The Court declares that pursuant to s.545(1) of the Fair Work Act 2009 (Cth) Zion Tiling Pty Ltd and Mr Tae Young Yoon have each contravened:

   (a)subsection 44(1) of the Fair Work Act 2009 (Cth) by contravening s.90 of the Fair Work Act 2009 (Cth);

   (b)section 45 of the Fair Work Act 2009 (Cth) by contravening clause 31.3 of the Building and Construction General On-Site Award 2010 (“the Award”);

   (c)section 45 of the Fair Work Act 2009 (Cth) by contravening clause 37.1 of the Award;

   (d)section 45 of the Fair Work Act 2009 (Cth) by contravening clause 31.4 of the Award;

   (e)section 45 of the Fair Work Act 2009 (Cth) by contravening clause 33.1(a)(i) of the Award;

   (f)section 535 of the Fair Work Act 2009 (Cth);

   (g)section 536 of the Fair Work Act 2009 (Cth); and

   (h)section 716 of the Fair Work Act 2009 (Cth).

2. The Court orders that:

   (a)default judgment be entered against Zion Tiling Pty Ltd (“Zion Tiling”) and Mr Tae Young Yoon (“Mr Yoon”);

   (b)the Director shall file and serve written submissions and any further affidavits on penalty and compensation by 26 July 2013;

   (c)Zion Tiling and Mr Yoon shall file and serve written submissions and any affidavits on penalty and compensation by 9 August 2013;

   (d)the matter be listed for a penalty hearing at 10.15am on 6 September 2013;

   (e)there be no order as to costs; and

   (f)the parties have liberty to apply.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 49 of 2013

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

Applicant

And

ZION TILING PTY LTD

First Respondent

TAE YOUNG YOON

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Application in a case

1. The applicant, the Director of the Fair Work Building Industry Inspectorate (“the Director”) has made an Application in a Case for default judgment against the respondents, Zion Tiling Pty Ltd (“Zion Tiling”) and Mr Tae Young Yoon (“Mr Yoon”), on the basis that there has been default in compliance with the requirements to file a Response and Defence in this matter.

Factual background

1. In the absence of any evidence from Zion Tiling and Mr Yoon, the Court accepts the factual background set out in the affidavits of Jeremy King affirmed 4 June 2013 and 3 July 2013 respectively (“the Affidavit” and the “Supplemental Affidavit” respectively), and filed on behalf of the Director. That factual background is as follows:

   a)on 26 March 2013, the Application, Statement of Claim and Notice of Filing and Hearing (“the Court Papers”) were personally served on Zion Tiling by Fair Work Building Industry Inspector Brett Roberts at the ASIC registered address of Zion Tiling. A copy of Brett Roberts’s affidavit of service, dated 4 April 2013 is Annexure JK-1 to the Affidavit;

   b)on 5 April 2013, the Court Papers were personally served on Mr Yoon by Alexandra Rowe, a Fair Work Building Industry Inspector based in Darwin, Northern Territory. A copy of Alexandra Rowe’s affidavit of service, dated 15 April 2013 is Annexure JK-2 to the Affidavit;

   c)on 7 May 2013 Mr King had a phone conversation with Mr Yoon before Mr Yoon passed the phone to his friend, Peter Jun, to discuss the claim. During the course of this conversation Mr King explained that Mr Yoon and Zion Tiling were required to file Notices of Address for Service with the Court. Mr King also explained that Zion Tiling and Mr Yoon would need to indicate to the Court if they agreed with or disputed the claim by the Director. Mr Jun told Mr King that he would help Mr Yoon to file Notices of Address for Service that day;

   d)on 8 May 2013 Mr King sent an email to Mr Yoon noting that neither Zion Tiling nor Mr Yoon had filed a Notice of Address for Service. Mr King also sent Mr Yoon some proposed directions for the hearing listed for 10 May 2013;

   e)on 9 May 2013 Mr King received by email, a Notice of Address for Service for Mr Yoon. The Notice stated that the name of Mr Yoon’s solicitor was Chulsung “Charles” Oh. Mr King responded to the email to note that a Notice of Address for Service had not been provided for Zion Tiling. A copy of the email chain for 8 and 9 May 2013 is Annexure JK-3 to the Affidavit;

   f)on 9 May 2013 Mr King received an email from Mr Oh from Logos Lawyers of Chatswood, New South Wales confirming that he had been instructed to act for Mr Yoon. Mr King responded by email to enquire if Mr Oh also acted for Zion Tiling. A copy of this email chain is Annexure JK-4 to the Affidavit;

   g)also on 9 May 2013 Mr Oh sent an email to the Court, to the Associate to Judge Riley, to request that the directions hearing on 10 May 2013 be deferred until after June 2013 because Mr Yoon was working in Darwin, Northern Territory. A copy of this email, which was copied to Mr King, is Annexure JK-5 to the Affidavit;

   h)on 9 May 2013 Mr Oh also filed a Notice of Address for Service for Zion Tiling;

   i)the initial hearing of this matter was on 10 May 2013. At that hearing the Court ordered Mr Oh, who appeared by telephone link on behalf of Zion Tiling and Mr Yoon, to file within an hour, a Notice of Address for Service on behalf of Zion Tiling and Mr Yoon showing the address of Logos Lawyers;

   j)the Court dismissed the request for an adjournment of proceedings until the end of June 2013, or at all, and further ordered that Zion Tiling and Mr Yoon file and serve any Response and Defence to these proceedings by 24 May 2013 and that the matter be listed for further directions on a date to be advised after 31 May 2013;

   k)shortly after the hearing on 10 May 2013, Mr Oh filed revised Notices of Address for Service for Zion Tiling and Mr Yoon, which stated the address for service as that of Logos Lawyers;

   l)on 21 May 2013 Mr King received an email from John Park of Wentworth Lawyers & Partners, who claimed to have been appointed to act by Mr Yoon and Zion Tiling. A copy of this email and Mr King’s email response of 21 May 2013, in which Mr King requested that Mr Park file new Notices of Address for Service, are Annexure JK-6 to the Affidavit;

   m)during a phone call with Mr Park on 21 May 2013, Mr King explained that the Court had ordered that Mr Park’s clients file either admissions or a Defence by 24 May 2013;

   n)on 22 May 2013, Mr King’s colleague, Stephen Pemberton, sent an email to Mr Park, in Mr King’s absence, in which Mr Pemberton asked Wentworth Lawyers & Partners to provide Notices of Address for Service for Mr Park’s clients. In response Mr Park stated that, contrary to his earlier email, Mr Yoon and Zion Tiling could not appoint Mr Park, and that he could not continue to act for them. Copies of these emails are Annexure JK-7 to the Affidavit;

   o)on 24 May 2013 Mr King forwarded a copy of Mr Park’s email, dated 22 May 2013, to Mr Oh enquiring about new Notices of Address for Service. Mr Oh responded stating that he had contacted his clients about new Notices of Address for Service and that Mr Yoon was well aware that 24 May 2013 was the last day to file a Response and Defence. Copies of these emails are Annexure JK-8 to the Affidavit;

   p)on 24 May 2013 Mr King received an email with an attachment from Mr Yoon. The attached document stated that he was sorry for what he had done and that he knew he had to pay compensation and penalty, but asked for his current financial situation to be considered. A copy of this email and attachment is Annexure JK-9 to the Affidavit;

   q)in contravention of the Court’s orders of 10 May 2013, no Response or Defence has been received from Zion Tiling or Mr Yoon before 24 May 2013, or at all;

   r)on 28 May 2013 Mr King sent an email to Mr Oh of Logos Lawyers putting Mr Oh on notice that he intended to apply for default judgement as Mr Oh had received no Response or Defence from Zion Tiling or Mr Yoon. A copy of Mr King’s email is Annexure JK-10 to the Affidavit;

   s)on 12 June 2013 the Court issued a sealed Notice of Filing and Hearing of the applicant’s Application in a Case for default judgment. The sealed Court notice set a hearing time for 10.15 am on 11 July 2013;

   t)on 13 June 2013 Mr King printed off copies of the sealed Court notice and documents from the Court’s “eLodgment” facility;

   u)on 13 June 2013, Mr King posted by express post a letter containing the Application in a Case for default judgment, affidavit in support, and Notice of Filing and Hearing to the lawyers initially on record for Zion Tiling and Mr Yoon, namely Logos Lawyers of 402/282 Victoria Avenue, Chatswood, NSW 2067. A copy of that letter dated 13 June 2013 is Annexure JK-1 to the Supplemental Affidavit;

   v)on 13 June 2013, Mr King also posted a letter containing the Application in a Case for default judgment, affidavit in support, and Notice of Filing and Hearing by express post to Zion Tiling at 45 Nashville Loop, Currambine, WA 6028. This is the address that was provided in an unsealed Notice of Intention to Withdraw as Lawyer, dated 17 May 2013, sent by Logos Lawyers to the Associate to Judge Riley, Mr Yoon and the Director by email on 3 June 2013. A copy of the letter, dated 13 June 2013, from the Director to Zion Tiling is Annexure JK-3 to the Supplemental Affidavit;

   w)on 13 June 2013, Mr King also posted a letter containing the Application in a Case for default judgment, affidavit in support, and Notice of Filing and Hearing by express post to Mr Yoon at 45 Nashville Loop, Currambine, WA 6028. A copy of this letter is Annexure JK-4 to the Supplemental Affidavit;

   x)on 13 June 2013 Mr King completed three entries in the internal Director’s post book confirming the name and address of the parties to whom he had sent letters. In the right hand column of each entry Mr King stuck a tracking code which he removed from the pre-paid envelopes to allow him to track delivery of the letters. A copy of the relevant page from the Director’s post book is Annexure JK-5 to the Supplemental Affidavit;

   y)on 25 June 2013 Mr King received an email from Mr Oh from Logos Lawyers in which he confirmed receipt of the Application in a Case for default judgment and stated that he had passed it to Mr Yoon by email. A copy of Mr Oh’s email dated 25 June 2013 is Annexure JK-2 to the Supplemental Affidavit;

   z)on 25 June 2013 Mr King visited the website known as and entered into the site’s tracking facilities, the code corresponding to each letter sent that he had recorded in the Director’s post book. The website confirmed that all the letters had been successfully delivered to each of Zion Tiling and Mr Yoon and the delivery date was 14 June 2013. A copy of a tracking summary for the letters to Mr Yoon and Zion Tiling is Annexure JK-6 to the Supplemental Affidavit; and

   aa)the Director has not received any correspondence from either Zion Tiling or Mr Yoon since the email from Mr Yoon, dated 24 May 2013, in which he appears to admit liability, and which is Annexure JK-9 to the Affidavit.

2. The Court observes that Notices of Address for Service were filed by Zion Tiling and Mr Yoon giving an address for service of 45 Nashville Loop, Currambine, WA 6028 on 31 May 2013, and which are dated 30 May 2013. The Notice of Address for Service for Zion Tiling purports to give notice that Zion Tiling is acting in person, which, being a corporation, it cannot do having regard to the provisions of r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). Mr Yoon’s Notice of Address for Service indicates that he is acting in person.

Director’s submissions

1. The Director submits that Zion Tiling and Mr Yoon are in contravention of r.13.03A(2) of the FCC Rules as they are in default having failed to file a Response or Defence before 24 May 2013. The Director makes the Application in a Case for default judgment pursuant to r.13.03B(2)(c) of the FCC Rules requesting that the Court give judgment against Zion Tiling and Mr Yoon, and for the declarations sought by the Director in the Statement of Claim.

Consideration

1. As indicated above, in the absence of evidence to the contrary, the facts are as found and set out in paragraphs 2 and 3 above.

2. In those circumstances, both Zion Tiling and Mr Yoon are in default in relation to the filing of a Response and a Defence, and are in contravention of r.13.03A(2)(b)(ii) and (iii) of the FCC Rules, and the Director is entitled to default judgment under r.13.03B(2)(c) of the FCC Rules.

3. Nothing has been put before the Court by either Zion Tiling or Mr Yoon by way of explanation or mitigation of the failure to file a Response and Defence. In those circumstances, the exercise of the Court’s discretion to issue default judgment falls to be determined on the basis of the evidence and facts as found above (see paras.2 and 3 above). Those facts indicate more than ample opportunity for Zion Tiling and Mr Yoon to have filed a Response and Defence, alternatively, to have filed affidavits explaining why no Response and Defence have been filed. It is evident that at least two firms of lawyers have been instructed to act at various times for Zion Tiling and Mr Yoon, and for reasons which Zion Tiling and Mr Yoon have not explained, those lawyers are no longer on the record (in the case of Logos Lawyers) or never went on the record (in the case of Wentworth Lawyers & Partners). Nor is this the first time that the matter has come before the Court, as is evident from the orders made by the Court on 10 May 2013, when the matter was listed for further directions and for the filing and service of any Response and Defence by 24 May 2013. Those orders were made at a time when Zion Tiling and Mr Yoon were represented by the first of the two firms of lawyers who have acted on their behalf in this matter. Today there is no Response or Defence, nor any draft of those documents, sought to be filed or tendered, and, indeed, there is no appearance by Zion Tiling or Mr Yoon.

4. In circumstances where:

   a)the FCC Rules have not been complied with;

   b)the Court’s orders of 10 May 2013 have also not been complied with;

   c)the involvement of two firms of lawyers on the part of Zion Tiling and Mr Yoon has been to no avail in terms of compliance with the FCC Rules and the Court’s orders of 10 May 2013;

   d)nothing has been put before the Court otherwise which would explain the default of Zion Tiling and Mr Yoon; and

   e)the Court must consider case management considerations, including accessibility for other litigants awaiting hearing dates in a busy first instance federal trial Court, and the efficient use of the Court’s resources: FCC Rules, r.103(2) and (4); Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 190-191 per French CJ; [2009] HCA 27 at para.27 per French CJ,

   the Court is satisfied that it is appropriate to issue default judgment against Zion Tiling and Mr Yoon, and that it has the power to grant the relief sought in the Application. There will therefore be declarations and orders largely as sought by the Director.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Associate: 

Date:  12 July 2013