Fair Work Ombudsman v Annangrove Road Pty Ltd (in liq)

[2024] FedCFamC2G 65

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Annangrove Road Pty Ltd (in liq) [2024] FedCFamC2G 65

File number(s):

SYG 786 of 2023

Judgment of:

JUDGE LAING

Date of judgment:

29 January 2024

Catchwords:

INDUSTRIAL LAW – application for default judgment in relation to alleged involvement in contravention of s 716(5) of the Fair Work Act 2009 (Cth) – declaration and orders made

Legislation:

Corporations Act 2001 (Cth) s 471B

Fair Work Act 2009 (Cth) ss 546, 550, 552, 716

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 141

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

Cases cited:

United Workers’ Union v Victorian Protection Security Services Pty Limited [2022] FedCFamC2G 584

Number of paragraphs:

41

Date of hearing:

29 January 2024

Place:

Sydney

Solicitor for the Applicant:

Mr T Ahmed of Fair Work Ombudsman

First Respondent:

No appearance

Second Respondent:

No appearance

ORDERS

SYG786 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN
Applicant

AND:

ANNANGROVE ROAD PTY LTD (IN LIQUIDATION) (ACN 635 386 293)
FirstRespondent

ALFREDO GUALTERIO
Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	29 JANUARY 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to Annangrove Road Pty Ltd (in liquidation) (ACN 635 386 293).

2.Default judgment be entered for the applicant against the second respondent pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), by reason of default of the second respondent, pursuant to rule 13.04(2) of the Rules by his failure to:

(a)file and serve a notice of address for service in accordance with the Court’s orders; or

(b)defend the proceeding with due diligence.

3.Upon admissions taken to have been made by the second respondent by reason of the default of the second respondent, a declaration be made that the second respondent was involved, within the meaning of s 550(2) of the Fair Work Act 2009 (Cth) (FW Act), in the first respondent’s contravention of s 716(5) of the FW Act by failing to comply with a compliance notice issued to the first respondent on 28 July 2022.

4.The applicant serve a copy of these orders on the second respondent within 7 days by sending it by email to the Email Address defined in the reasons for judgment delivered today.

5.The matter be adjourned to 19 July 2024 at 10 am for further hearing in respect of the applicant’s claim pursuant to s 546(1) of the FW Act for civil pecuniary penalties for the contravention by the second respondent declared at Order 3.

6.The applicant file and serve evidence and an Outline of Submissions relating to the issue of penalties, by no later than 5 weeks prior to the date of the hearing fixed pursuant to Order 5.

7.The second respondent file and serve evidence and an Outline of Submissions relating to the issue of penalties, by no later than 3 weeks prior to the date of the hearing fixed pursuant to Order 5.

8.The applicant file and serve any evidence and submissions in reply no later than 1 week prior to the date of the hearing fixed pursuant to order 5.

9.The parties have liberty to apply on 3 days’ notice.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE LAING:

1. By an application in a proceeding filed on 30 October 2023 (Default Judgment Application), the applicant, the Fair Work Ombudsman (FWO), seeks default judgment under r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) against the second respondent (Mr Gualterio).

2. The FWO contends that the first respondent, Annangrove Road Pty Ltd (in liquidation) (Annangrove Road) contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a compliance notice (Compliance Notice) issued under s 716(2) of the FW Act in respect of underpayments to Ms Gee Ann Austria and Mr Tuan Lium Nguyen (Employees). As Annangrove Road is in liquidation, the proceedings against it are stayed pursuant to s 471B of the Corporations Act 2001 (Cth).

3. The FWO seeks declarations that Mr Gualterio was involved, within the meaning of s 550(2) of the FW Act, in Annangrove Road’s contravention of s 716(5) of the FW Act by failing to comply with a compliance notice issued to Annangrove Road on 28 July 2022. The FWO seeks for a penalty to be paid by Mr Gualterio to the Commonwealth, although proposes that this question be the subject of a separate hearing.

   PROCEDURAL HISTORY

4. The originating Application and Statement of Claim (Originating Documents) were filed in this Court on 12 May 2023. According to an affidavit affirmed by Robert Vassallo sworn on 1 June 2023, these documents were served upon Annangrove Road by hand to its registered office where an employee identified themselves as the Manager and confirmed they were authorised to accept service. The documents were accompanied by a letter dated 16 May 2023 setting out, inter alia, details of the first court date in this matter.

5. There was no appearance for either of the respondents when the matter came before the Court on the first court date on 9 June 2023. On that occasion, the following orders were made:

   1.The First Respondent appoint a legal representative who must file and serve a Notice of Address for Service in accordance with rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) by 7 July 2023, unless submissions and evidence in support of any application by the Second Respondent for leave to appear on behalf of the First Respondent have been filed by that date.

   2.        The matter be relisted for directions at 2pm on 7 July 2023.

   3.        The Applicant serve a copy of these orders upon the Respondents.

6. No Notice of Address for Service was filed or application was made in accordance with Order 1. Nor has this occurred to date.

7. On 6 July 2023, the FWO filed an affidavit affirmed by Tauseef Ahmed on the same date evidencing communications by the FWO with Mr Gualterio in relation to these proceedings. This included a telephone conversation with Mr Gualterio, during which the Originating Documents were sent to him at an email address understood to belong to Mr Gualterio (Email Address). Verbal confirmation of receipt is said to have been provided by Mr Gualterio. The orders made on 9 June 2023 were sent to the same Email Address.

8. On the morning of 7 July 2023, an email was sent by a person identifying themselves as Mr Gualterio to Chambers seeking adjournment of the listing. The Email Address was recorded at the bottom of the email, apparently as a point of contact. An adjournment was requested “to allow for adequate preparation and the resolution that we have been negotiating with Tauseef Ahmed”. No reason was provided for the inability of either respondent to attend, other than “unforeseen circumstances”.

9. No adjournment was granted and there was no appearance for either respondent at the listing on 7 July 2023. However, at the listing I drew to the FWO’s attention that no affidavit had been filed confirming service of the Originating Documents upon Mr Gualterio in accordance with the FCFCOA Rules. The following orders were made:

   1.The Applicant file and serve an affidavit regarding service upon the Second Respondent by 14 July 2023.

   2.The First Respondent appoint a legal representative who must file and serve a Notice of Address for Service in accordance with rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) by 14 July 2023, unless submissions and evidence in support of any application by the Second Respondent for leave to appear on behalf of the First Respondent have been filed by that date.

   3.The First Respondent is to file and serve a Response and Defence by 21 July 2023.

   4.The Second Respondent is to file and serve a Notice of Address for Service, and any Response and Defence (subject to any claim of privilege against self-incrimination) by 21 July 2023.

   5.        The matter is listed for directions on 14 August 2023 at 10am.

   6.        The parties have liberty to apply on 3 days’ notice.

   7.        A copy of these orders be served by the applicant upon the Respondents.

10. No Notice of Address for Service, Response or Defence has been filed in accordance with the orders made on 7 July 2023.

11. On 14 July 2023, the FWO filed an affidavit of service sworn by Andrew Charles Hunt on 13 July 2023 evidencing that service by hand of the Originating Documents was affected upon Mr Gualterio on 12 July 2023. The Court’s orders on 7 July 2023 were similarly served.

12. Whilst there was no appearance for Annangrove Road on 14 August 2023, there was an appearance by Mr Gualterio. As was recorded in the notation to the orders made on that date, Mr Gualterio informed the Court and the FWO that Annangrove Road was in liquidation. The following orders were made:

    1.The second respondent file and serve a Notice of Address for Service, and any Response and Defence (subject to any claim of privilege against self-incrimination), by 4 September 2023.

    2.        The matter be listed for directions at 2pm (AEST) on 12 September 2023.

    3.        Liberty to apply on 3 days’ notice.

13. No Notice of Address for Service, Response or Defence was filed by Mr Gualterio.

14. On 5 September 2023, Mr Gualterio contacted Chambers seeking information regarding Court forms. Mr Gualterio was provided with contact details for the Registry as well as a link to the Court’s guide regarding communications with Chambers.

15. On 12 September 2023, the FWO filed an affidavit affirmed by Tauseef Ahmed on that date. That affidavit confirmed that the Australian Securities and Investments Commission had been notified of the making of a winding up order against Annangrove Road and the appointment of a liquidator.

16. There was no appearance for the respondents on 12 September 2023 on which occasion the following orders were made:

    1.The Second Respondent file and serve a Notice of Address for Service by 15 September 2023.

    2.        The matter be listed for directions on 10 October 2023 at 2:00pm (AEST).

    3.        The parties have liberty to apply on 3 days’ notice.

17. A notation to the orders recorded:

    4.        The First Respondent was placed into liquidation on 12 July 2023.

    5.The proceedings are stayed against the First Respondent subject to leave being granted to the Applicant under s 471B of the Corporations Act 2001 (Cth).

18. No Notice of Address for Service was filed by Mr Gualterio.

19. There was no appearance for Mr Gualterio on 10 October 2023. On that occasion, the FWO foreshadowed an application being made for default judgment should Mr Gualterio continue to fail to engage meaningfully in these proceedings. The following orders were made:

    1.The Applicant has leave to file and serve an application in a case for default judgment and affidavit evidence in support by 31 October 2023.

    2.The Second Respondent file and serve any affidavit evidence in respect of the default judgment application by 14 November 2023.

    3.The matter be listed for an interlocutory hearing of the default judgment application on 30 November 2023 at 2:00pm (AEST).

    4.        A copy of these orders be served on the Second Respondent.

    5.        The parties have liberty to apply on 3 days’ notice.

20. On 30 October 2023, the FWO filed a further affidavit affirmed by Tauseef Ahmed on that date. That affidavit evidenced that the orders made at the listings in September and October had been sent to Mr Gualterio at the Email Address. Correspondence had occurred between Mr Gualterio and the FWO in which Mr Gualterio had sought the FWO’s consent to adjournment of the September listing, which had been refused. The FWO had also drawn to Mr Gualterio’s attention issues regarding his non-compliance with the Court’s orders and for the potential for an application for default judgment to be made. 

21. On 30 October 2023, the FWO also filed the Default Judgment Application seeking the following orders:

    1.Default judgment be entered for the Applicant against the Second Respondent pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), by reason of default of the Second Respondent, pursuant to rule 13.04(2) of the Rules by his failure to:

    (a)file and serve any response and defence (subject to any claim of privilege against self-incrimination) by 4 September 2023 in accordance with order 1 of the Orders of the Court dated 14 August 2023;

    (b)file and serve a notice of address for service by 15 September 2023 in accordance with order 1 of the Orders of the Court dated 12 September 2023; and

    (c)       defend the proceeding with due diligence.

    2.Upon admissions taken to have been made by reason of the default of the Second Respondent, declarations be made that the Second Respondent was involved, within the meaning of section 550(2) of the Fair Work Act 2009 (Cth) (FW Act), in the First Respondent’s contravention of section 716(5) of the FW Act by failing to comply with a compliance notice issued to the First Respondent on 28 July 2022.

    3.The Applicant serve a copy of these orders on the Second Respondent within 7 days by sending it by email to [redacted].

    4.The matter be adjourned to [date] at [time] for further hearing in respect of the Applicant’s claim pursuant to section 546(1) of the FW Act for civil pecuniary penalties for the contravention declared at Order 2.

    5.The Applicant file and serve evidence and an Outline of Submissions relating to the issue of penalties, by no later than 5 weeks prior to the date of the hearing fixed pursuant to Order 4.

    6.The Second Respondent file and serve evidence and an Outline of Submissions relating to the issue of penalties, by no later than 3 weeks prior to the date of the hearing fixed pursuant to Order 4.

    7.The Applicant file and serve any evidence and submissions in reply no later than 1 week prior to the date of the hearing fixed pursuant to order 4.

    8.        The Applicant have liberty to apply on 3 days’ notice.

    9.        Such further orders as the Court considers appropriate.

22. On 29 November 2023, the FWO filed an affidavit affirmed by Tauseef Ahmed on that date evidencing that the Default Judgment Application and his affidavit of 30 October 2023 had been served upon Mr Gualterio at the Email Address. Attempts to draw these documents to Mr Gualterio’s attention by text and post were also detailed.

23. The Default Judgment Application was originally listed for hearing on 30 November 2023. There was no appearance for Mr Gualterio nor any communications that might have explained the non-appearance. However, at the listing I raised with the FWO that the Statement of Claim, as filed, relied heavily upon what appeared to be confusing, inaccurate and inconsistent cross referencing which may affect the Court’s ability to grant default judgment. Orders were sought and made as follows:

    1.The hearing of the application for default judgment be adjourned to 29 January 2024 at 10.00 am.

    2.The applicant has leave to file and serve an amended Statement of Claim by 15 December 2023.

    3.The applicant has leave to file and serve any further material in support of its application for default judgment by 5 January 2024.

    4.The second respondent has leave to file and serve any material in reply by 19 January 2024.

    5.        Liberty to apply on 3 days’ notice.

    6.The applicant is to serve a copy of the orders made today upon the second respondent

24. On 13 December 2023 an Amended Statement of Claim was filed. That document stated the following at [4]:

    4.        The Second Respondent, Alfredo Gualterio, is and was at all relevant times:

    (a)       a natural person capable of being sued;

    (b)the sole director and company secretary of the First Respondent since 7 August 2019;

    (c)       a person with actual or apparent responsibility for:

    (i)the operation, management and control of the First Respondent; and

    (ii)ensuring the First Respondent complied with its legal obligations under the FW Act; and

    (d)a person whose conduct (engaged in on behalf of the First Respondent and within the scope of his actual or apparent authority) is taken to be that of the First Respondent pursuant to section 793(1) of the FW Act.

25. At [5]-[9], the following was pleaded:

    5.FWI Samantha Palmer (FWI Palmer) was at all relevant times a FWI appointed by the Applicant under section 700 of the FW Act.

    6.In or around June 2022, the Applicant commenced an investigation into the First Respondent’s compliance with Commonwealth workplace laws (Investigation).

    Particulars

    The Investigation commenced following the Applicant receiving requests for assistance from Gee Ann Austria (Ms Austria) and Tuan Lium Nguyen (Mr Nguyen), previous employees of the First Respondent.

    7.During the Investigation, the Second Respondent communicated with FWI Palmer on behalf of the First Respondent by telephone and using the email address, [redacted] (Second Respondent’s Email Address).

    8.Based on the information and evidence obtained in the course of the Investigation, on or around 8 July 2022, FWI Palmer formed a belief that:

    (a)Ms Austria was employed by the First Respondent for the period between 19 December 2020 and 14 June 2021 (Austria Employment Period);

    (b)Mr Nguyen was employed by the First Respondent for the period between 1 September 2020 and 13 June 2021 (Nguyen Employment Period);

    (c)the Restaurant Industry Award 2020 (Award) covered and applied to the First Respondent in respect of the employment of Ms Austria and Mr Nguyen (together, the Employees);

    (d)at all relevant times during their employment with the First Respondent, the Employees were:

    (i)properly classified as Level 6 - Cook grade 5 (tradesperson), as defined in Schedule A to the Award; and

    (ii)full-time employees, within the meaning of clause 9 of the Award;

    (e)at the end of the Austria Employment Period, Ms Austria had a total of 73.48 hours of accrued, but untaken annual leave;

    (f)at the end of the Nguyen Employment Period, Mr Nguyen had a total of 118.90 hours of accrued, but untaken annual leave; and

    (g)the Employees did not receive payments of any accrued, but untaken, annual leave when their employment ended.

    9.By reason of the matters pleaded in paragraph 8 88, FWI Palmer formed a reasonable belief for the purposes of section 716(1)(b) of the FW Act that the First Respondent contravened section 90(2) of the FW Act, by failing to pay each of the Employees the full amount that would have been payable to them had they taken their accrued annual leave when their employment ended (Contraventions).

26. At [10]-[15], the following was pleaded in relation to the Compliance Notice:

    10.On 28 July 2022, FWI Palmer gave the First Respondent a compliance notice in respect of the Contraventions pursuant to section 716(2) of the FW Act.

    Particulars

    A.The Compliance Notice was sent to the First Respondent via express post to the Former Registered Office on 28 July 2022, and it was delivered on 29 July 2022.

    B.A copy of the Compliance Notice was also emailed to the Second Respondent’s Email Address on 28 July 2022.

    11.In accordance with section 716(2) of the FW Act, the Compliance Notice required the First Respondent to:

    (a)take the following action to remedy the direct effects of the Contraventions by 6 September 2022:

    (i)identify the number of hours of annual leave the Employees accrued;

    (ii)identify the amount the First Respondent paid to the Employees in respect of accrued but untaken annual leave at the end of their employment;

    (iii)calculate the amount the First Respondent should have paid to the Employees in respect of accrued but untaken annual leave at the end of their employment;

    (iv)make payment to the Employees of the difference between the amounts referred to in paragraphs 11(a)(ii) and 11(a)(iii); and

    (v)make a record of the information and amounts referred to in paragraphs 11(a)(ii) to 11(a)(iv) (Underpayment Rectification Information); and

    (b)produce reasonable evidence to the Applicant of its compliance with the Compliance Notice by 13 September 2022, by producing the Underpayment Rectification Information and proof that full payment had been made to the Employees.

    12. The Compliance Notice met the requirements of section 716(3) of the FW Act.

    13.      The First Respondent:

    (a)failed to take the specified action set out in the Compliance Notice by 6 September 2022, or at all; and

    (b)failed to produce reasonable evidence to the Applicant of compliance with the Compliance Notice by 13 September 2022, or at all.

    14.By reason of the matters pleaded in paragraph 13 1313, the First Respondent failed to comply with the Compliance Notice.

    15.By reason of the matters pleaded in paragraphs 6 67 to 14 1414, the First Respondent contravened section 716(5) of the FW Act.

1. At [16]-[18], the following was pleaded in relation to accessorial liability:

   16.By reason of the matters pleaded in paragraph 4 44 , at all material times the Second Respondent was responsible for ensuring that the First Respondent complied with the Compliance Notice.

   17.By reason of the matters pleaded in paragraphs 4 44 , and 10 1010 to 14, the Second Respondent:

   (a)had actual knowledge of the Compliance Notice that was given to the First Respondent and that the First Respondent was required to comply with the Compliance Notice within the timeframe specified;

   (b)had actual knowledge that the First Respondent failed to comply with the Compliance Notice; and

   (c)was an intentional participant in the First Respondent’s failure to comply with the Compliance Notice.

   18.By reason of the matters pleaded in paragraph 17 1717, the Second Respondent:

   (a)was involved, within the meaning of section 550(2) of the FW Act, in the contravention by the First Respondent of section 716(5) of the FW Act as alleged in paragraph 15 1515; and

   (b)pursuant to section 550(1) of the FW Act, is taken to have contravened section 716(5) of the FW Act.

2. Relief was sought at [21] to [22] of the Amended Statement of Claim. In relation to Mr Gualterio, that relief sought was that he “pay a pecuniary penalty to the Commonwealth for his involvement in the contravention as declared in paragraph 21(b) 2121(b)” within 28 days of the relevant order. Paragraph 21(b) sought a declaration that Mr Gualterio “was involved, within the meaning of section 550(2) of the FW Act, in the First Respondent’s contravention of section 716(5) of the FW Act” in respect of which a declaration had been sought in the preceding paragraph.

3. On 5 January 2024, the FWO filed an affidavit affirmed by Tauseef Ahmed on that date. The affidavit evidences that the orders made on 30 November 2023 were sent to Mr Gualterio at the Email Address. The Amended Statement of Claim was also sent to this address. An attempt to draw this to Mr Gualterio’s attention by text message was also made, in a message further drawing attention to the listing date today. Whilst an attempt to contact Mr Gualterio by telephone was unsuccessful, a message in response was received by the FWO on 2 January 2024 stating: “text your message. i’m away camping no reception”.

4. At the hearing of the Default Judgment Application today, the FWO relied upon a further affidavit of today’s date evidencing a conversation between Tauseef Ahmed and Mr Gualterio on 22 January 2024. In that conversation, Mr Gualterio advised that he was in Vietnam until March and that he had some difficulties with connection but had been able to be reached because he was in a shopping centre with a network connection. Mr Gualterio stated that he would be unable to appear at the listing today in person or by phone and indicated that he was willing to negotiate a payment plan if a penalty were ordered against him.

5. No adjournment application has been made by Mr Gualterio with supporting evidence that he is unable to attend the listing today, either remotely or otherwise. In these circumstances, I considered it appropriate to proceed with the hearing today notwithstanding Mr Gualterio’s non-appearance.

   RELEVANT PRINCIPLES

6. Rule 13.05(2) of the FCFCOA Rules provides:

   13.05   Orders on default

   …

   (2)      If a respondent is in default, the Court may:

   (a)order that a step in the proceeding be taken within the time limited in the order; or

   (b)if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:

   (i)        the debt or liquidated damages; and

   (ii)       if appropriate—costs; or

   (c)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:

   (i)        the applicant appears entitled to on the statement of claim; and

   (ii)       the Court is satisfied it has power to grant; or

   (d)       give judgment or make any other order against the respondent; or

   (e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

7. The applicable principles were considered in United Workers' Union v Victorian Protection Security Services Pty Ltd [2022] FedCFamC2G 584 at [8] (footnotes omitted):

   8.Rules 13.04 and 13.05 of the GFL Rules were adapted from, and are substantially similar to, the rules contained in O 35A of the now repealed Federal Court Rules 1979 (Cth);^[2] and r 13.05(2)(c) of the GFL Rules is almost identical to O 35A r 3(2)(c). There are a number of principles that have been formulated in relation to O 35A r 3(2)(c) which apply to r 13.05 of the GFL Rules. These include the following:

   (a)First r 13.05(2)(c) of the GFL Rules “does not require proof of the claim by evidence, but only requires that – on the face of the statement of claim – there is a claim for the relief sought”.^[3]

   (b)Second, before the Court may make an order under r 13.05(2)(c) of the GFL Rules it must be satisfied that the document, which the applicant has filed with the application, is in fact a “statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading.^[4]

   (c)Third, it follows from (b) that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”.^[5]

   (d)Fourth, although r 13.05(2)(c) of the GFL Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought.^[6]

   (e)Finally, the Court retains a discretion not to make an order under r 13.05(2)(c) of the GFL Rules, even if the preconditions for making an order are satisfied.^[7]

   NOTIFICATION OF THE COURT’S ORDERS AND HEARINGS

8. I have set out earlier in some detail the steps taken by the FWO to notify Mr Gualterio of the pleadings and orders in this matter, as well as the Default Judgment Application and supporting evidence.

9. I am satisfied that appropriate steps have been taken by the FWO in this regard and that Mr Gualterio is on notice of the Default Judgment Application and its basis.

   THE RELEVANT DEFAULTS

10. Mr Gualterio has not, on the evidence, satisfied the FWO’s claims. However, he has failed to comply with orders requiring that he, at least, serve a Notice of Address for Service in accordance with the FCFCOA Rules. By reference to what has been set out in these reasons, he has not defended the proceeding with due diligence. I am satisfied that Mr Gualterio is in default within the meaning of r 13.04(2) of the FCFCOA Rules.

    CAUSE OF ACTION PLEADED IN THE AMENDED STATEMENT OF CLAIM

11. I have set out above the cause of action pleaded in the Amended Statement of Claim.

12. I am satisfied that the Amended Statement of Claim complies with the rules of pleading and adequately sets out the factual basis of the relief sought. Specifically, the facts alleged support a finding that Mr Gualterio was involved, within the meaning of s 550(2) of the FW Act, in the first respondent’s contravention of s 716(5) of the FW Act by failing to comply with the Compliance Notice.

13. Upon being satisfied of the contraventions alleged under the FW Act, this Court has the power to made declarations under s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and to order pecuniary penalties under s 546 of the FW Act. The Court has a wide discretion regarding the making of declarations, including in circumstances where they are made on the basis of admissions deemed to have been made upon default. It has been recognised that there may be a public interest in the making of such declarations: see Australian Competition and Consumer Commission v Yellow Page Marketing BV and Anor (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [69].

14. Having regard to the matters that I have identified, I am satisfied that it is appropriate to make orders substantially in the form sought by the FWO.

    CONCLUSION

15. For the foregoing reasons, I will make the orders ultimately sought by the FWO. In accordance with those orders, the question of penalty will be determined following a further hearing and opportunity being given to Mr Gualterio to address the Court.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       29 January 2024