Fair Work Ombudsman v Buffalos Cairns Operations Pty Ltd (No 2)
[2022] FedCFamC2G 973
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Buffalos Cairns Operations Pty Ltd (No 2) [2022] FedCFamC2G 973
File number(s): BRG 446 of 2021 Judgment of: JUDGE EGAN Date of judgment: 16 November 2022 Catchwords: FAIR WORK – Failure on the part of the Respondent to demonstrate any reasonably arguable defence – where appropriate to order that summary judgment be entered against the Respondent. Legislation: Fair Work Act 2009 (Cth) ss 545(1) and 547(2).
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 140.
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021. R. 13.06(1)(d) and 13.10(1)(b)(ii).
Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 16 November 2022 Date of hearing: 16 November 2022 Place: Brisbane Counsel for the Applicant: Ms B Mendelson Solicitor for the Applicant: Fair Work Ombudsman The Respondent: No appearance ORDERS
BRG 446 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: BUFFALOS CAIRNS OPERATIONS PTY LTD
Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
16 November 2022
IT IS ORDERED THAT:
1.Summary judgment be entered in favour of the Applicant pursuant to rule 13.10(1)(b)(ii) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (General Federal Rules).
2.Pursuant to s 545(1) of the Fair Work Act 2009 (Cth) (FW Act), the Respondent remedy the direct effects of the contraventions set out in the First CN within 28 days of this order, by paying $3,599.17 (the Patel Outstanding Amount) and $2,699.06 (the Bahadir Outstanding Amount) to the Applicant.
3.Pursuant to s 547(2) of the FW Act, the Respondent pay the Applicant interest on the Patel Outstanding Amount in the sum of $255, and in respect of the Bahadir Outstanding Amount, interest in the sum of $197, calculated in accordance with the Federal Court of Australia’s Interest on Judgments Practice Note (GPN-INT) and for the period from 1 March 2021 to the date of the Court’s orders, to the Applicant.
4.Pursuant to s 545(1) of the FW Act, the Respondent remedy the direct effects of the contraventions set out in the Second CN within 28 days of this order, by paying $992.03 in respect of the amount owed to Ms Kerbid for her first period of employment (the First Kerbid Outstanding Amount) to the Applicant.
5.Pursuant to s 547(2) of the FW Act, the Respondent pay the Applicant interest on the First Kerbid Outstanding Amount in the sum of $75, calculated in accordance with the Federal Court of Australia’s Interest on Judgments Practice Note (GPN-INT) and for the period from 1 March 2021 to the date of the Court’s orders, to the Applicant.
6.Pursuant to s 545(1) of the FW Act, the Respondent remedy the direct effects of the contraventions set out in the Third CN within 28 days of this order, by paying $1,466.43 in respect of the amount owed to Ms Kerbid for her first period of employment (the Second Kerbid Outstanding Amount) to the Applicant.
7.Pursuant to s 547(2) of the FW Act, the Respondent pay the Applicant interest on the Second Kerbid Outstanding Amount in the sum of $107, calculated in accordance with the Federal Court of Australia’s Interest on Judgments Practice Note (GPN-INT) and for the period from 1 March 2021 to the date of the Court’s orders, to the Applicant.
8.Pursuant to s 545(1) of the FW Act and s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Applicant, within 90 days of receipt, distribute the amounts referred to in paragraphs 2, 3, 4, 5, 6 and 7 to Mr Patel, Mr Bahadir and Ms Kerbid respectively.
IT IS FURTHER ORDERED THAT:
9.The Respondent’s Application in a Case to dismiss the proceedings filed on 14 February 2022 be dismissed pursuant to rule 13.06(1)(d) of the General Federal Rules.
10.The Applicant have liberty to apply on the giving of two (2) 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).
REASONS FOR JUDGMENT
Judge Egan
Introduction
This matter came on for hearing before the Court today, pursuant to an order made on 28 October 2022.
Exhibit 7 was, in part, an email sent by the respondent's representative, Mr Dabboussi, whereby it was indicated by Mr Dabboussi that there would be no appearance by or on behalf of the respondent at today's hearing.
The succinct claims of the applicant were as set out in a further amended statement of claim filed on 28 October 2022. By order of the Court made on 13 October 2022, the respondent was required to file and serve an amended defence and any supporting affidavit material by 4 pm on 27 October 2022. That order was as set out in paragraph 3 of the orders of the Court made that day.
No amended defence has been filed by or on behalf of the respondent pursuant to the orders of the Court made on 13 October 2022, and the respondent is accordingly in breach of the Court's orders and is in default.
The only defence to the applicant's claims filed in this matter was a defence filed on 28 April 2022. That defence, in part, asserted that each of the three employees the subject of the giving of compliance notices on behalf of the applicant, owed sums of money to the respondent, but neither in any affidavit material filed on behalf of the respondent, or in the defence itself, is any reasonable or arguable defence shown to any of the claims made on behalf of the applicant.
The Court accepts the evidence as set out in the affidavit of Mr Toomey, filed on 19 August 2022, and Mr Marsh, filed on 19 August 2022. Those affidavits together confirm that an amount of $3,599.17 was due to the employee Patel, the amount of $2699.06 was due to the employee Bahadir, and that the respective sums of $992.03 and $1466.43 were due to the employee Kerbid. Interest due on those respective amounts is $255 in respect of the employee Patel, $197 in respect of the employee Bahadir, and the sum of $179 due to the third employee Kerbid.
The Court is satisfied that the respondent failed to comply with what has been referred to in the further amended statement of claim as the first compliance notice dated 28 January 2021 and the second compliance notice also dated 28 January 2021. In that regard, it is noted that the applicant does not seek any relief in respect of a third compliance notice also dated 28 January 2021.
In circumstances where the defence filed on behalf of the respondent shows no reasonable defence or likelihood of success in resisting the applicant's claims, and further in circumstances where there is no appearance by or on behalf of the applicant before the Court today, it is appropriate that summary judgment be entered in favour of the applicant against the respondent pursuant to the provisions of rule 13.10(1)(b)(ii) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021.
And it is so ordered.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 17 November 2022
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