Engel v Essential Magnesium Australia Pty Ltd - [2021] FedCFamC2G 356

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Engel v Essential Magnesium Australia Pty Ltd [2021] FedCFamC2G 356

File number: PEG 62 of 2021

Judgment of: JUDGE LADHAMS

Date of judgment: 14 December 2021

Catchwords: PRACTICE AND PROCEDURE – Industrial Law – application for default judgment – whether respondent in default – whether respondent on notice of application – whether default judgment should be awarded – whether relief sought is reasonably supported by materials before the Court – default judgment ordered

Legislation:
Fair Work Act 2009 (Cth), ss 90(2), 117, 323, 340(1)(a)(ii), 342(1), 536(1), 539, 545, 547(2), 546, 570(2)(b)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.04(2), 13.05(2)

Federal Circuit Court Rules 2001 (Cth), Div 6.2 r 6.08

Superannuation Guarantee (Administration) Act 1992 (Cth)

Cases cited:
BJ International Limited v Ashgar (No 2) [2013] FCA 580

Budathoki v Consult Security Pty Ltd [2020] FCCA 1872

Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328

Fair Work Ombudsman v HW Carpentry Solutions Pty Ltd [2016] FCCA 3283

Fair Work Ombudsman v Koojedda Carpentry Pty Ltd as Trustee for the Gumley Trust (No 2) [2017] FCCA 2577

Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15

Hall v City Country Hotel Management No.2 Pty Ltd (No 2) [2016] FCCA 1543

Murphy v Innovior Pty Ltd (No 2) [2021] FCCA 258

Paillas v Astra Chauffeur Limousines (Aust) Pty Ltd [2017] FCCA 836

Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27

Speedo Holdings BV v Evans (No 2) [2011] FCA 1227

Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448

Division: Division 2 General Federal Law

Number of paragraphs: 51

Dates of hearing: 22 October 2021 and 1 December 2021

Place: Perth

Counsel for the Applicant: Mr A McDonald (22 October 2021)
Mr J Hooper (1 December 2021)

Solicitor for the Applicant: McDonald Murholme Solicitors

Respondent No appearance for the respondent
ORDERS

PEG 62 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ADRIAN ENGEL

Applicant

AND:
ESSENTIAL MAGNESIUM AUSTRALIA PTY LTD
ACN 620 106 934

Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

14 DECEMBER 2021

THE COURT ORDERS THAT:
1.Default judgment is entered for the applicant against the respondent pursuant to r 13.05(2)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

THE COURT DECLARES THAT:
A.The respondent contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (Fair Work Act) by terminating the applicant’s employment because the applicant exercised a workplace right.
B.The respondent contravened s 323 of the Fair Work Act by failing to pay the applicant amounts payable to him in relation to the performance of work by him during the period from 2 September 2020 to 31 January 2021.
C.The respondent contravened s 117(2) of the Fair…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FedCFamC2G 356
Decision Date: 14 December 2021

CaseChat Overview and Summary

The case of Engel v Essential Magnesium Australia Pty Ltd concerns an application for default judgment brought by the applicant against the respondent in the Federal Circuit Court. The applicant, Engel, is seeking various forms of relief including unpaid remuneration, one week’s pay in lieu of notice, accrued annual leave entitlements, superannuation, compensation for future loss of earnings, damages for pain and suffering, and penalties for breaches of the Fair Work Act. The respondent, Essential Magnesium Australia Pty Ltd, failed to appear at multiple hearings, leading to the application for default judgment.

The central legal issues addressed by the Court were whether the respondent was in default, whether the respondent had been adequately notified of the application for default judgment, and whether the relief sought by the applicant was reasonably supported by the materials presented to the Court. Additionally, the Court had to consider the procedural requirements for making default judgment orders in accordance with the FCC Rules.

Judge Kendall examined the procedural history and found that the respondent had failed to appear at multiple listed hearings despite being served with the necessary documents and being ordered to appear. The Court considered the application for default judgment, which was supported by an affidavit from the applicant's lawyer, and determined that all procedural requirements had been met. The Court concluded that the relief sought by the applicant was reasonably supported by the evidence provided and that the respondent was indeed in default. Consequently, the Court granted the application for default judgment.

The Court's final orders included the granting of the applicant’s claims for unpaid remuneration, one week’s pay in lieu of notice, accrued annual leave entitlements, superannuation, compensation for future loss of earnings, damages for pain and suffering, and penalties for breaches of the Fair Work Act. The Court also ordered the respondent to pay the applicant's costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The relief sought by the applicant in his originating application includes his unpaid remuneration, one week’s pay in lieu of notice pursuant to s 117(2) of the Fair Work Act, an amount for his accrued and untaken annual leave entitlements, superannuation, compensation for future loss of earnings, damages for pain and suffering, and maximum penalties for the breaches of the Fair Work Act. PROCEDURAL HISTORY AND APPLICATION FOR DEFAULT JUDGMENT The applicant commenced proceedings in the Federal Circuit Court on 9 April 2021 by way of an application accompanied by a Form 2. The first Court date recorded on the application was 11 May 2021. The matter ultimately came before the Court for the first directions hearing on 15 June 2021. At the directions hearing on 15 June 2021 before Judge Kendall, the applicant appeared by his lawyer and there was no appearance for or by the respondent. Judge Kendall made orders listing the matter for further directions on 22 July 2021, requiring the applicant to serve a copy of the application and the Order of 15 June 2021 on the respondent in accordance with Division 6.2 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) and requiring that an affidavit of service be filed. The Order of 15 June 2021 also required the respondent to appear or cause an appearance to be made at the directions hearing on 22 July 2021, and the Court noted that in the event that there was no appearance by or for the respondent, the Court may consider making default judgment orders. On 22 July 2021 the matter again came before Judge Kendall for directions. Again, the applicant was represented by his lawyer and there was no appearance by or for the respondent. Judge Kendall made orders listing the matter for further directions on 9 September 2021, and requiring the application, Form 2 and Orders made by the Court to be served by hand on the registered office of the corporation as outlined in r 6.08 of the FCC Rules, or if service by hand could not be effected, to serve the documents by registered post and email, with service to be evidenced by way of an affidavit of service. The orders again required the respondent to appear or cause an appearance to be made at the next directions hearing, being the directions hearing on 9 September 2021 and the Court again noted that it may consider making orders for default judgment in the event that the respondent did not appear. The matter came before Judge Kendall again on 9 September 2021, with the applicant again represented by his lawyer and there being no appearance by or for the respondent. On that occasion, Judge Kendall made orders requiring any default judgment application to be filed by 30 September 2021 and made further orders requiring service of documents on the respondent, to be verified by way of an affidavit of service. The applicant filed an application in a case seeking default judgment on 30 September 2021. That application was supported by an affidavit affirmed by the applicant’s lawyer.

Ratio Decidendi

Legal Principle Established

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File number:	PEG 62 of 2021
Judgment of:	JUDGE LADHAMS
Date of judgment:	14 December 2021
Catchwords:	PRACTICE AND PROCEDURE – Industrial Law – application for default judgment – whether respondent in default – whether respondent on notice of application – whether default judgment should be awarded – whether relief sought is reasonably supported by materials before the Court – default judgment ordered
Legislation:	Fair Work Act 2009 (Cth), ss 90(2), 117, 323, 340(1)(a)(ii), 342(1), 536(1), 539, 545, 547(2), 546, 570(2)(b) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.04(2), 13.05(2) Federal Circuit Court Rules 2001 (Cth), Div 6.2 r 6.08 Superannuation Guarantee (Administration) Act 1992 (Cth)
Cases cited:	BJ International Limited v Ashgar (No 2) [2013] FCA 580 Budathoki v Consult Security Pty Ltd [2020] FCCA 1872 Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 Fair Work Ombudsman v HW Carpentry Solutions Pty Ltd [2016] FCCA 3283 Fair Work Ombudsman v Koojedda Carpentry Pty Ltd as Trustee for the Gumley Trust (No 2) [2017] FCCA 2577 Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15 Hall v City Country Hotel Management No.2 Pty Ltd (No 2) [2016] FCCA 1543 Murphy v Innovior Pty Ltd (No 2) [2021] FCCA 258 Paillas v Astra Chauffeur Limousines (Aust) Pty Ltd [2017] FCCA 836 Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448
Division:	Division 2 General Federal Law
Number of paragraphs:	51
Dates of hearing:	22 October 2021 and 1 December 2021
Place:	Perth
Counsel for the Applicant:	Mr A McDonald (22 October 2021) Mr J Hooper (1 December 2021)
Solicitor for the Applicant:	McDonald Murholme Solicitors
Respondent	No appearance for the respondent

PEG 62 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ADRIAN ENGEL Applicant
AND:	ESSENTIAL MAGNESIUM AUSTRALIA PTY LTD ACN 620 106 934 Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	14 DECEMBER 2021