Fair Work Ombudsman v Davis Furniture Logistics Pty Ltd
[2022] FedCFamC2G 334
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Davis Furniture Logistics Pty Ltd [2022] FedCFamC2G 334
File number(s): BRG 300 of 2021 Judgment of: JUDGE EGAN Date of judgment: 10 May 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – Requirement that applicant make clearly articulated arguments warranting the making of declarations in circumstances where judgment entered in favour of the applicant due to the non-appearance of the respondents – where submissions duly made – where appropriate orders made. Legislation: Fair Work Act 2009 (Cth) ss. 545(1), 547(2), 550(2) and 716(5)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). r. 13.05(2)(c)Cases cited: ACCC v Dataline.net.au Pty Ltd [2006] FCA 1427 Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 23 March 2022 Date of hearing: 16 March 2022 Place: Brisbane Solicitor for the Applicant: Norton Rose Fulbright Respondents: No Appearance ORDERS
BRG 300 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: DAVIS FURNITURE LOGISTICS PTY LTD ACN 634 849 853
First Respondent
CATHY DAVIS
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
10 MAY 2022
UPON:
1.The deemed admission of the allegations contained in the Statement of Claim filed on behalf of the Applicant on 19 July 2021 by reason of the failure by the First Respondent and the Second Respondent to comply with Orders of the Court.
IT IS DECLARED THAT:
2.The First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice given to the First Respondent on 26 November 2020.
3.The Second Respondent 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 and is taken to have contravened that provision.
AND IT IS ORDERED THAT:
4.Pursuant to section 545(1) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice the subject of the declarations above within 28 days of this order, by;
i.calculating and paying the employee the subject of the Compliance Notice (the Employee) the outstanding entitlements the Respondent was required to pay to the Employee as specified in the Compliance Notice;
ii.calculating and paying superannuation contributions into the employee’s nominated superannuation fund for the additional superannuation contributions required to be paid on the outstanding entitlements referred to in paragraph 4.a.i above;
iii.preparing and producing to the Applicant a schedule outlining the First Respondent’s calculations of the outstanding entitlements and the additional superannuation contributions referred to in paragraphs 4.a.i and 4.a.ii above; and
iv.providing evidence to the Applicant that the outstanding entitlements and additional superannuation contributions as set out in paragraphs 4.a.i and 4.a.ii above have been reflected;
a. pursuant to section 545(1) of the FW Act, the First Respondent pay interest calculated in accordance with the applicable pre-judgement interest rate prescribed by the Federal Court of Australia to:
i.the Employee on the amounts owed pursuant to paragraph 4.a.i above; and
ii.the Employee’s nominated superannuation fund on the additional superannuation contributions required to be paid pursuant to paragraph 4.a.ii above;
within 28 days of this order;
b. the Applicant serve a copy of these orders on the Respondents within 7 days by sending it by way of:
i.express post to the First Respondents address at 1716 Mount Cotton Road, Burbank, Queensland, 4156; and
ii.email to:
1.the email address ‘[email protected]’ under cover of an email marked to the attention of the Second Respondent; and
2.the email address ‘[email protected]’ under cover of an email marked to the attention of Melinda Davis, where such correspondence includes a request that Melinda Davis bring these orders made by the Court to the attention of the Second Respondent;
c. pursuant to section 546(1) of the FW Act:
i.the First Respondent pay a pecuniary penalty of an amount to be determined by the Court to the Commonwealth for the contravention declared at paragraph 2 above: and
ii.the Second Respondent pay a pecuniary penalty of an amount to be determined by the Court to the Commonwealth for the contravention declared at paragraph 3 above;
5.The Applicant shall file and serve written submissions as to penalties in the manner set out in paragraphs 4(c) hereof forthwith.
6.The matter be listed for a penalties hearing at 9:45am AEST on 26 September 2022.
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
On 16 March 2022, the Court ordered that default judgement be entered in favour of the applicant against the first respondent and the second respondent pursuant to r. 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
On that occasion, the Court was not satisfied that coherent written submissions were before it, so as to justify the making of other declarations and orders sought by the applicant. The applicant was given the opportunity to file and serve written submissions in support of the orders sought in paragraphs 2, 3 and 4 of the Application in a Case filed on 9 December 2021.
On 23 March 2022, the applicant caused such submissions to be filed. The Court is satisfied that, pursuant to order 3 made on 16 March 2022, the respondents have been duly served with the said written submissions.
The Court accepts that the affidavit material before the Court has established that the first respondent contravened the provisions of s. 716(5) of the Fair Work Act 2009 (Cth) (FWA), namely that there was non-compliance with a compliance notice given to the first respondent on 26 November 2020.
The Court further accepts that the second respondent was involved, within the meaning of s. 550(2) of the FWA, in the contravention by the first respondent of s. 716(5) of the FWA, and that the second respondent is thereby taken to have contravened such provision.
On the question as to whether declarations ought to be made, based upon the deemed admission of the allegations contained in the Statement of Claim filed on behalf of the applicant, by reason of the failure of the respondents to either appear in the proceeding or file a Response within time, Kiefel J (as Her Honour then was) in ACCC v Dataline.net.au Pty Ltd [2006] FCA 1427 at [52] – [59] inclusive said as follows:
“[52]Phonographic Performance v Maitre and other cases recognise that a rule such as r 3(2)(c) may extend to equitable relief and relief which involves the exercise of a discretion. This is in addition to the discretion given by the rule itself to the making of orders of any kind. The fourth and seventh respondents did not submit that O 35A r 3(2)(c) could never apply to discretionary remedies, but rather that it could do so only if the facts pleaded establish something that could be characterised as an ‘entitlement’. An example given was an order for specific performance of a contract, where there was an assumption of a prima facie entitlement, at least where no defences barring the remedy were raised.
[53] The preferable course may be to view the ‘entitlement’, of which the rule speaks, as distinct from the particular relief which might be considered appropriate to it. What the rule requires is that there be shown, on the face of the statement of claim, a right to some form of relief. The matters alleged in the statement of claim must permit the conclusion that some relief may be possible, even if the grant of it is subject to other considerations. Such a conclusion is at least possible in cases where declarations and injunctions are sought. An applicant may establish some right or legal interest or legal conclusion capable of resolving a controversy, which might properly be expressed in the form of a declaration, or establish the infringement of a right or a standard set by a statute. Subject to considerations which might weigh against the grant of relief of those kinds, the applicant may be said to have an ‘entitlement’. It does not have to be absolute for the purposes of the rule, which is discretionary in nature in any event.
[54] The application of the rule to a claim for a declaration would, however, have the consequence that the declaration is made upon deemed admissions. The courts have in the past expressed the view that it may be inappropriate to make declarations where there is a default in pleadings. Zamir and Woolfe in ‘The Declaratory Judgment,’ 2nd edn Sweet and Maxwell, 1993 at par 7.30 refer to the courts’ reluctance to make declarations as being based upon a desire to avoid making points res judicata without having heard argument. This was the view expressed in New Brunswick Railway Co v British and French Trust Corporation Limited (1939) AC 1 at p 22, and see Metzger v Department of Health and Social Security[1977] 3 All ER 444 at p 451; GPI Leisure Corp Ltd v Yuill, unreported decision of Young J, New South Wales Supreme Court Equity Division 6 August 1997, BC 970 4052.
[55]There is another concern of the courts, which was explained by Buckley LJ in Wallersteiner v Moir (at p 1029):
‘...It has always been my experience and I believe it to be a practice of very long standing, that the Court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v Powell [1894] W.N.141, where Kekewich J, whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence. If declarations ought not to be made on admissions or by consent, a fortiori they should not be made in default of defence, and a fortissimo, if I may be allowed the expression, not where the declaration is that the defendant in default of defence has acted fraudulently. Where relief is to be granted without trial, whether on admission or by agreement or in default of pleading, and it is necessary to make clear upon what footing the relief is to be granted, the right course, in my opinion, is not to make a declaration but to state that the relief shall be on such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation.’
[56] In Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC
955 Young J observed that the courts are always particularly careful, when making declaratory orders, not to make the order merely on admissions because otherwise the agreement between the parties will assume the dignity of the solemn adjudication by the Court. His Honour said:‘The reason for this is that even if the declaration only binds the parties as a matter of res judicata, other members of the community may consider that it is the view of the court and the declaration "will have effects on the community that extend far beyond the interests of the original plaintiff and defendant".’
[57]In the present case the first mentioned difficulty is not present. Submissions have been made as to the declarations sought. The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the Court on the facts and the declarations may give the impression that there has.
[58] The power to grant declarations (s 21 Federal Court of Australia Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2).
[59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 where justice to the plaintiff required it. The order however operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made ‘upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court’.
Having been satisfied that it is appropriate in the due administration of justice that declarations be made in accordance with paragraphs 2 and 3 of the Application in a Case, and consonant with the reasoning of Her Honour at [59] of Dataline, such declarations shall be proceeded by the words “Upon the deemed admission of the allegations contained in the Statement of Claim filed on behalf of the Applicant on 19 July 2021 by reason of the failure by the First Respondent and the Second Respondent to comply with Orders of the Court.”
The Court is further satisfied that consequential orders ought to be made pursuant to paragraph 4 (a)–(d) inclusive of the Application in a Case.
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: 9 May 2022
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