FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Absolute Thai Pty Ltd [2022] FedCFamC2G 422
File number(s): MLG 2446 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 2 June 2022 Catchwords: INDUSTRIAL LAW— Application for default judgment pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – applicant seeking declaration of contravention of the Fair Work Act 2009 (Cth) – failure of the respondent to comply with compliance notice – whether penalty should be imposed and level of penalty to be imposed – consideration of nature and circumstances of the conduct – consideration of any contrition, corrective action and cooperation with enforcement authority – the need for specific and general deterrence – penalty imposed at 50% of statutory maximum Legislation: Fair Work Act 2009 (Cth) ss 12, 545, 546, 547, 550, 700, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 1.06, 4.03, 4.04, 6.08, 13.04, 13.05
Cases cited: Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; [2006] FCA 1427
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56
Fair Work Ombudsman v Tester [2021] FCCA 771
Kelly v Fitzpatrick (2007) 165 IR 14; [2007] FCA 1080
Macquarie Bank Limited v Seagle (2005) 146 FCR 400; [2005] FCA 1239
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Phonographic Performance ltd v Maitra (1998) 41 IPR 225 (United Kingdom)
Rathner; in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 24 May 2022 Date of hearing: 24 May 2022 Place: Melbourne Applicant Solicitors Fair Work Ombudsman First Respondent No appearance Second Respondent No appearance ORDERS
MLG 2446 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ABSOLUTE THAI MELBOURNE PTY LTD
First RespondentRONALD NAH
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
2 JUNE 2022
THE COURT DECLARES THAT:
1.Upon admissions which the Respondents are taken to have made consequent upon the Respondents' default pursuant to r 13.04(2) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (“Rules”):
(a)the First Respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to comply with a compliance notice given to it by Fair Work Inspector Kez Ma (“FWI Ma”) on 25 September 2020 (“2010 Award Compliance Notice”);
(b)the First Respondent contravened s 716(5) of the FW Act by failing to comply with a compliance notice given to it by FWI Ma on 25 September 2020 (“2020 Award Compliance Notice”);
(c)the Second Respondent…
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- Case
- [2022] FedCFamC2G 422
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved whether the statement of claim sufficiently pleaded a cause of action and if it was appropriate to grant declaratory relief in light of the respondents' default. The court also had to consider whether orders requiring compliance with the compliance notices, payment of interest, and the imposition of pecuniary penalties were warranted. Given that the respondents failed to file a defence or otherwise respond, the court had to assess the relief based on the applicant's uncontroverted allegations.
The court found that the statement of claim complied with the rules of pleading and properly established a cause of action. It was satisfied that the facts alleged in the statement of claim demonstrated Absolute Thai's contraventions and Mr Nah's involvement. The court determined that it was appropriate to make declarations, emphasizing that these were made based on admissions by the respondents due to their non-compliance with court rules. The court also concluded that orders requiring Absolute Thai to comply with the compliance notices and to pay interest on underpayments and superannuation contributions were justified. Additionally, the court imposed pecuniary penalties on Absolute Thai and Mr Nah, considering them appropriate given the nature and seriousness of the contraventions.
In conclusion, the court granted the requested declaratory relief, ordered Absolute Thai to comply with the compliance notices and pay interest, and imposed pecuniary penalties on Absolute Thai and Mr Nah. The declarations specified that they were made upon admissions by the respondents due to their non-compliance, and the relief was tailored to address the specific contraventions identified in the case.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
I am satisfied that the statement of claim filed in this matter and upon which the applicant relies complies with the rules of pleading and properly pleads a cause of action that supports the granting of relief. In particular, I am satisfied that the facts alleged in the statement of claim establish that Absolute Thai contravened s 716(5) of the FW Act, and that Mr Nah was a person involved, within the meaning of s 550(2) of the FW Act, in Absolute Thai’s contraventions. SHOULD DECLARATIONS BE MADE? It is not in doubt that this Court has a wide discretion to make declarations, including in circumstances where due to their default, the respondents are deemed to have made admissions. In this respect, there is no requirement, as there once was, for there to be a proper contradictor before declaratory relief can be granted. The requirement for a contradictor is met if there is a party who had an interest to oppose the declaratory relief that was being sought.[6] However, it has been recognised that in exercising appropriate caution when considering declaratory relief, the particular characteristics of an application for default judgment should be borne in mind. In particular, default judgment is given on the basis of the claim as pleaded by the applicant and in the absence of a defence or contradictory evidence. Accordingly, it is appropriate to make clear, as the FWO has proposed, that there has been no adjudication on the merits of the applicant’s claims by including wording in the declaration to the effect that the declarations are made “upon admissions which the respondents in question are taken to have made consequent upon their non-compliance with the requirements of the rules of Court”, as suggested by Kiefel J, as her Honour then was, in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427 at [59].[6] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 at [30] per Greenwood, Logan and Yates JJ. Although there is room to doubt whether, in fact, declarations serve the educative and cautionary purpose that the FWO attributes to them (that presupposes that meaningful numbers of employers read and understand the import of judgments and orders made), I am satisfied that this is an appropriate case for declaratory relief, if for no other reason than to record the Court’s disapproval of the contravening conduct.ORDERS REQUIRING ABSOLUTE THAI TO COMPLY WITH THE REQUIREMENTS OF THE COMPLIANCE NOTICES AND FOR PAYMENT OF INTEREST I am satisfied that it is appropriate to make orders that require Absolute Thai to take the steps that were required by the 2010 Compliance Notice and the 2020 Compliance Notice and that Absolute Thai pay interest on the amount of the underpayment owing to Ms Chen and any payable superannuation contribution.PECUNIARY PENALTY The FWO submits that a penalty of $26,640 for Absolute Thai and $5,328 for Mr Nah is appropriate, in circumstances where the maximum penalty that the Court may impose for a contravention of s 716(5) of the FW Act by a corporation and an individual is $33,300 and $6,660, respectively.