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
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
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
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 934Respondent
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…
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- Case
- [2021] FedCFamC2G 356
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
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