Fair Work Ombudsman v Ella Group (NSW) Pty Ltd
[2024] FedCFamC2G 1207
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Ella Group (NSW) Pty Ltd [2024] FedCFamC2G 1207
File number(s): SYG 397 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 19 September 2024 Catchwords: INDUSTRIAL LAW – Application in a proceeding for default judgment pursuant to r 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to file documents – cumulative failure to defend proceedings with due diligence Legislation: Fair Work Act 2009 (Cth) ss 539, 545, 546, 547, 550, 716
Federal Circuit and Family Court of Australia Act 2001 (Cth), s 141, 211
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth), rr 9.04, 13.04, 13.05, 13.06
Cases cited: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006)236 ALR 665
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) FCR 1
Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848
Fair Work Ombudsman v Lohr [2018] FCA 5
Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882
Luna Park v Bose [2006] FCA 94
Division: General Federal Law Number of paragraphs: 51 Date of hearing: 19 September 2024 Place: Sydney Solicitor for the Applicant: Ms R Miguntenna, Fair Work Ombudsman The First Respondent: No appearance The Second Respondent: No appearance ORDERS
SYG 397 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: THE ELLA GROUP (NSW) PTY LTD (ACN 625 545 520)
First Respondent
LOUISE RAMONA YAACOUBIAN
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 13.05(2)(c) of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), default judgment is entered for the applicant against the first and second respondents, by reason of their failure to take each of the following steps:
(a)file and serve a Notice of Address for Service as required by rule 6.01 of the Rules;
(b)file and serve a Response and any Defence within 28 days of service as required by rr 4.03(3) and 4.04(3)(a) of the Rules;
(c)comply with an order of the Court in the proceedings, being orders 3 and 4 of the orders of the Court dated 13 June 2024, orders 4 to 6 of the orders of the Court dated 11 July 2024 and orders 3 to 5 of the orders of the Court dated 5 September 2024, in accordance with r 13.04(2)(b)(ii) of the Rules;
(d)attend the directions hearings on 13 June 2024, 11 July 2024 and 5 September 2024; and
(e)in light of the above, defend the proceedings with due diligence in accordance with r 13.04(2)(b)(vii) of the Rules.
2.Upon admissions taken to have been made by reason of the first respondent’s and second respondent’s default, declarations be made that:
(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 on 27 February 2023 (Compliance Notice); and
(b)the second respondent was involved, within the meaning of s 550(2)(c) of the FW Act, in the first respondent’s contravention of s 716(5) of the FW Act, referred to in paragraph 2(a) above and, by reason of s 550(1), is taken to have contravened s 716(5) of the FW Act.
3.Orders that:
(a)pursuant to ss 545(1) and 545(2)(d) of the FW Act, the first respondent take the steps required by the Compliance Notice within 28 days of the order by:
(i)calculating and paying to the applicant the outstanding entitlement it was required to pay to the Employee under the Compliance Notice (Outstanding Amount);
(ii)calculating and paying the additional superannuation contributions to the Employee’s nominated superannuation account as required by cl 20.2 of the Children’s Services Award 2010 in respect of the Outstanding Amount; and
(iii)preparing and producing to the Applicant a schedule outlining its calculations of the amounts required to be paid pursuant to the orders in paragraphs 3(a)(i) and (ii) above, and providing the Applicant evidence of compliance with the order in paragraph 3(a)(ii) above;
(iv)pursuant to s 547(2) of the FW Act, within 28 days of this order, the first respondent pay interest to the applicant on the Outstanding Amount at the applicable pre-judgment interest rate prescribed by the Federal Court of Australia;
(v)the applicant distribute to the Employee the amounts paid pursuant to the orders in paragraphs 3(a)(i) and (b) above within 60 days of the payments being made;
(vi)the applicant file and serve evidence and submissions relating to penalty no later than 28 days prior to the date of the hearing fixed pursuant to order 4 below;
(vii)the first and second respondents file and serve evidence and submissions relating to penalty no later than 14 days prior to the date of the hearing fixed pursuant to order 4 below; and
(viii)the applicant file and serve evidence and submissions in reply relating to penalty no later than 7 days prior to the date of the hearing fixed pursuant to order 4 below.
4.The proceedings are listed for hearing on the issue of penalty before Judge Given at 10:15am on 21 November 2024, in person at Court 13.1 level 13, 80 William Street, Woolloomooloo.
5.The parties have liberty to apply on 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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
I have before me an application in a proceeding which was filed for the applicant, who is the Fair Work Ombudsman (FWO), on 30 August 2024 (default judgment application).
These proceedings were commenced by the FWO seeking orders, inter alia, for default judgment on 8 March 2024 alleging contraventions of the Fair Work Act 2009 (Cth) (Act), after the first respondent failed to comply with a compliance notice given to it by a Fair Work inspector (FWI) on 27 February 2023, pursuant to s 716(5) of the Act. The second respondent is said to have been involved, within the meaning of s 550(2) of the Act, in the contravention by the first respondent of s 716(5).
In respect of the default judgment, the applicant relies on the following documents:
(a)the Application and Statement of Claim (SOC) filed on 8 March 2024;
(b)an Affidavit of Joseph Khoury sworn on 19 April 2024 (first Khoury Affidavit);
(c)an Affidavit of Joseph Khoury sworn on 7 June 2024 (second Khoury Affidavit); and
(d)the Affidavits of Ruby Rashika Miguntenna filed on each of:
(i)12 June 2024 (first Miguntenna Affidavit);
(ii)10 July 2024 (second Miguntenna Affidavit);
(iii)20 August 2024 (third Miguntenna Affidavit); and
(iv)4 September 2024 (fourth Miguntenna Affidavit).
At the commencement of the hearing of the default judgment application today, there was no appearance for the first respondent, which is a corporation and therefore is required pursuant to r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (Rules), to be represented by a lawyer. There was also no appearance by, or for, the second respondent who is an individual. The matter was called outside the courtroom at 11:15am. I note that the matter was listed for hearing of the default judgment application at 10:15am, but due to a late running directions list, was not reached until an hour later. In those circumstances, I am reasonably satisfied that there is to be no appearance by either of those parties and the hearing commenced in their absence pursuant to r 13.06(1)(e) of the Rules.
BACKGROUND
The first respondent operates a childcare centre and employed Ms Amal Chami (employee) to perform work within the childcare centre.[1]
[1] SOC at [3(e)] and [6(a)]
In or around October 2022, the applicant commenced an investigation into the first respondent in respect of its employment of employee.[2]
[2] SOC at [5]
Based on that investigation, the Fair Work Inspector (FWI) deposes to having formed a belief that:
(a)the first respondent employed the employee on a casual basis from 4 November 2019 to 1 April 2022 (Employment Period);
(b)the Children’s Services Award 2010 (Award) covered and applied to the first respondent in respect of its employment of the employee;
(c)Ms Chami was classified as a Level 3.4 – Children’s Services Employee, as defined in Schedule B of the Award; and
(d)during the Employment Period, the first respondent failed to pay the employee the hourly rate payable for a full-time employee for the relevant classification in cl 14 of the Award, being Level 3.4, plus a casual loading of 25% for each ordinary hour worked.[3]
[3] SOC at [6]
By reason of the matters at [7] above, the FWI formed a reasonable belief that the first respondent contravened cl 10.5(a) of the Award (Contravention).[4]
[4] SOC at [7]
On 27 February 2023, the FWI gave the Compliance Notice to the first respondent.[5]
[5] SOC at [8]
The Compliance Notice required the first respondent to take steps to calculate and pay the amount due to the employee as a result of the Contravention and any additional superannuation contributions to the employee’s nominated superannuation accounts by 3 April 2023, and to provide reasonable evidence of compliance to the applicant by 12 April 2023.[6]
[6] SOC at [9]
The FWO alleges that the first respondent failed to take the actions required by the Compliance Notice and as a result, contravened s 716(5) of the Act.[7]
[7] SOC at [12] to [14]
The FWO alleges that the second respondent was responsible for ensuring that the first respondent complied with the steps referred to in [10] above, and:
(a)had actual knowledge that the Compliance Notice was given to the first respondent;
(b)had actual knowledge that the first respondent was required to comply with the Compliance Notice;
(c)had actual knowledge that the first respondent failed to comply with the Compliance Notice; and
(d)was an intentional participant in the first respondent’s failure to comply with the Compliance Notice.[8]
[8] SOC at [15] to [16]
By reason of the matters referred to in the paragraph immediately above, the second respondent is said to have been involved, within the meaning of s 550(2)(c) of the Act, in the first respondent’s contravention of s 716(5) of the Act and by reason of s 550(1) of the Act is taken to have contravened s 716(5) of the Act.[9]
[9] SOC at [17]
Proceedings in this Court
On 8 March 2024, the applicant commenced proceedings against the first and second respondents by filing its Application and SOC with the Court (Originating Documents).
The Originating Documents were served on the first respondent by express post to its registered office at Guardian Accounting Services, Suite 20, Level 3, 27 Hunter Street, Parramatta, NSW 2150 (Registered Office) on 19 March 2024,[10] together with a letter advising the first respondent of the requirement to file a Response and Defence within 28 days of service or to otherwise file and serve a Notice of Address for Service with the Court.[11]
[10] First Miguntenna Affidavit at [7] and Annexure “RRM-02”. As to the Registered Office address, see the first Miguntenna Affidavit at [6(a)] and Annexure “RRM-01”
[11] First Miguntenna Affidavit at [7] and Annexure “RRM-02”
Between March and June 2024, the FWO made several attempts to personally serve the second respondent with copies of the Originating Documents and to bring the Originating Documents to the attention of the second respondent.[12]
[12] First Khoury Affidavit and second Khoury Affidavit, first Miguntenna Affidavit at [8], [10] and Annexures “RRM-03” and “RRM-04”, second Miguntenna Affidavit at [14], [16], [17], [19] and [22] and Annexures “RRM-9”, “RRM-11”, “RRM-12”, “RRM-14” and “RRM-17”
First directions hearing
At the first directions hearing on 13 June 2024, there was no appearance by, or on behalf of, the first and second respondents. The Court made orders, amongst other matters, that:
(a)the first respondent appoint a legal representative in accordance with r 9.04 of the Rules who must file and serve a Notice of Address for Service by 10 July 2024; and
(b)the second respondent file and serve a Notice of Address for Service by 10 July 2024;
(13 June Orders).
Service of the 13 June Orders and notification of the second directions hearing
On 17 June 2024, a copy of the 13 June Orders, along with correspondence reiterating the requirement to file a Notice of Address for Service was sent by express post to the first respondent at the Registered Office and the second respondent at a particular address in Greenacre NSW (first Greenacre address).[13]
[13] Second Miguntenna Affidavit at [20] to [21]
Copies of the 13 June Orders, Originating Documents, the first Khoury Affidavit, second Khoury Affidavit and first Miguntenna Affidavit were also sent to the second respondent via email to a particular Outlook address (Outlook email address) on 14 June 2024 and 21 June 2024.[14]
[14] Second Miguntenna Affidavit at [19] and Annexure “RRM-14”
On 26 June 2024, the applicant telephoned the first respondent’s business (number provided in the evidence but not recorded here) and sought confirmation as to whether the Originating Documents were given to the second respondent and informed them of the next Court date being 11 July 2024.[15]
[15] Second Miguntenna Affidavit at [22] and Annexure “RRM-17”
On 9 July 2024, the applicant sent a copy of the proposed orders that the applicant intended to seek at the directions hearing on 11 July 2024, to the first respondent by post to the Registered Office.[16] A copy of the proposed orders was also sent to the Second Respondent by email to the Outlook email address on 9 July 2024.[17]
[16] Second Miguntenna Affidavit at [24] and Annexure “RRM-18”
[17] Second Miguntenna Affidavit at [24] and Annexure “RRM-18”
Second directions hearing
At the second directions hearing on 11 July 2024 there was no appearance by or on behalf of the first and second respondents.[18] The Court made, inter alia, the following orders (original emphasis, anonymisation added):
[18] Third Miguntenna Affidavit at [7]
1.Pursuant to rule 6.14(1) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) (Rules), personal service on the second respondent of the Originating Application and Statement of Claim filed with the Court on 8 March 2024 (Originating Documents) is dispensed with.
2.Pursuant to rule 6.14(3) of the Rules, the second respondent is deemed to have been served with the Originating Documents on 14 June 2024 by them having been:
a.sent by ordinary post to Guardian Accounting Services, Suite 20, Level 3, 2 Hunter Street, Parramatta, NSW 2150 on 19 March 2024;
b.emailed to [the Outlook email address] on 19 March 2024 and 14 June 2024; and
c.hand delivered and left at [the first Greenacre address] on 5 June 2024; and
d.posted to 59A Rawson Road, Greenacre, NSW 2190 on 6 June 2024
3.Pursuant to rule 6.14(2) of the Rules, until further order of the Court or until the second respondent gives an address for service in accordance with the Rules, service on the second respondent of any further documents filed in this proceeding is to be effected by:
a.sending copies to the email address [the Outlook email address]; and
b.sending copies by ordinary post to the second respondent at:
i.[the first Greenacre address]; and
ii.[the second Greenacre address][19].
4.The first respondent must appoint a legal representative in accordance with rule 9.04 of the Rules, and file a Notice of Address for Service by 4:00pm on 25 July 2024.
5.The second respondent must file and serve a Notice of Address for Service by 4:00pm on 25 July 2024.
…
8.The matter is listed for further directions before Judge Given in person at 9:30am on 5 September 2024 in Court room 13.1 Level 13, 80 William Street Woolloomooloo listing the matter for further directions on 5 September 2024;
(11 July Orders).
[19] See [23] below
On 11 July 2024, the applicant sent a letter to the first and second respondents by express post to the Registered Office, each of the first Greenacre address and a second, different Greenacre address (second Greenacre address) enclosing the 11 July 2024 Orders and informing them, amongst other matters, of the requirement to file a Notice of Address for Service, Response and Defence.[20] A copy of the letter was also sent to the second respondent by email to the Outlook email address.[21]
[20] Third Miguntenna Affidavit at [10] and Annexure “RRM-20”
[21] Third Miguntenna Affidavit at [13] and Annexure “RRM-22”
On 23 August 2024, the applicant sent a further letter to the first and second respondents by express post to the Registered Office, and to each of the first and second Greenacre addresses, setting out the actions required of them pursuant to the 11 July 2024 Orders and the Applicant’s intention to make an application for default judgment if it failed to take them.[22] A copy of the letter was also sent to the second respondent by email to the Outlook email address on 26 August 2024.[23]
[22] Third Miguntenna Affidavit at [14] and Annexure “RRM-23”
[23] Third Miguntenna Affidavit at [16] and Annexure “RRM-25”
Service of default judgment application
On 30 August 2024, the applicant filed the application for default judgment (default judgment application) and the third Miguntenna Affidavit.
On 30 August 2024, the applicant sent a letter enclosing unsealed copies of the default judgment application and third Miguntenna Affidavit:
(a)to the first and second respondents by express post to the Registered Office, as above; and;
(b)to the second respondent by email to the Outlook email address.[24].
[24] Fourth Miguntenna Affidavit at [8] and Annexure “RRM-27”, fourth Miguntenna Affidavit at [9] and Annexure “RRM-28”
On 2 September 2024, the applicant sent a letter enclosing sealed copies of the default judgment application and third Miguntenna Affidavit and informing them of the hearing listed for 5 September 2024:
(a)to the first and second respondents by express post to the Registered Office; and
(b)to the Second Respondent by email to the Outlook email address.[25]
[25] Fourth Miguntenna Affidavit at [11] and Annexure “RRM-30”, fourth Miguntenna Affidavit at [12] and Annexure “RRM-31”
The first and second respondents have not filed any Response or Defence or given an address for service.
RELEVANT PRINCIPLES
In terms of the relief sought, the FWO seeks orders for default judgment based on the respondent's failure to comply with the Rules, together with declarations of contravention and consequential orders on default pursuant to r 13.05(2)(c) of the Rules. The FWO alleges that the respondents contravened the relevant provision of the Act as set out at [12] and [17] of the SOC.
The relevant principles in relation to default judgment are conveniently summarised in a decision of this Court in Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882 per Judge O'Sullivan in which his Honour set out principles distilled from decisions from the Federal Court of Australia in relation to the entry of default judgment at [19]. I have had regard to those principles in reaching this decision.
While there are no prescribed considerations in relation to the making of an order for default judgment, the Court will generally have regard to relevant matters which include:
(c)the power of the Court to order default judgment, (being a discretionary power), and that the discretion should be used with an appropriate caution; and
(d)that the discretionary power of the Court is enlivened when an applicant makes an application of that kind to it.
I am satisfied that the default judgment application made by the FWO on 30 August 2024 is such an application.
Rule 13.05(2)(c) of the Rules provides as follows.
13.05 Orders on default
…
(2) If a respondent is in default, the Court may:
…
(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
Orders for default judgment can be made pursuant to r 13.05(2)(c) if the Court is satisfied that there is a sufficient basis for the relief sought by the applicant’s SOC.
The Court is not required to be satisfied by evidence as to the matters set out in the statement of claim: see Luna Park v Bose [2006] FCA 94 at [20] per Jacobson J, citing Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J. An application under r 13.05(2)(c) of the Rules is determined, as mentioned above, on facts pleaded in the statement of claim alone.
In Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 at [20], Anderson J observed that:
Default judgment may be entered where a party's participation in the proceedings is such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial in an acceptable period, or where non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the other party: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 per Wilcox and Gummow JJ; see also, as a recent example, Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt)[2020] FCA 552 at [44] per O'Callaghan J.
Rule 13.04(2)(b) of the Rules provides that for the purposes of r 13.05, the following are defaults by a respondent who has not satisfied an applicant’s claim and fails to:
(a)give an address for service before the time for the respondent to give an address has expired; or
(b)file a response before the time for the respondent to file a response is expired; or
(c)comply with an order of the Court in the proceedings; or
(d)file and serve a document required under the rules; or
(e)produce a document as required by part 14 of the rules; or
(f)do any act required to be done by the rules; or
(g)defend the proceedings with due diligence.
Rule 13.06(2) of the Rules provides the following:
13.06 Default of appearance of a party
…
(2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.
The above provision is relevant because there is no appearance for the first respondent and no appearance by, or for, the second respondent in the circumstances which already have been outlined above. In terms of the procedural background to the matter, having reviewed the Court file, I am satisfied that as set out above, the respondents were each properly served by the applicant with the originating documents. Since that time, I am also satisfied that the respondents have been informed (repeatedly) of:
(a)The requirements for them to file Notices of Address for Service (and in the case of the first respondent, to appoint a lawyer), a Response and a Defence;
(b)each of the various return dates of these proceedings including the first Court date; and
(c)the FWO’s intention that she would seek default judgment against the respondents if they failed to take the steps required of them in these proceedings.
I am also satisfied that since the date of service of the Originating Documents neither of the respondents has filed a Notice of Address for Service, as the Court file makes plain.
At the first Court date in this matter which was 13 June 2024, the Court adjourned the proceedings to 11 July 2024, on which date there was again no appearance by or for the respondents.
Accordingly, I am satisfied that each of the respondents are in default within the meaning of r 13.04(2) of the Rules on the basis of:
(a)the first respondent's failure to satisfy the FWO’s claim;
(b)the respective failures of the respondents to give an address for service as required by r 6.01 of the Rules, and specifically as ordered by the Court on each of 13 June 2024 and 11 July 2024. I am satisfied that these constitute individual defaults by each of the respondents pursuant to rr 13.04(2)(b)(i), 13.04(2)(b)(iii) and 13.04(2)(b)(iv) of the Rules;
(c)the respective failures of the respondents to file and serve a Response and Defence in relation to the originating documents as required by each of rr 4.03 and 4.04(3) of the Rules, and as specifically ordered by the Court of each of 13 June 2024 and 11 July 2024. I am satisfied that these constitute individual defaults by each of the respondents pursuant again to rr 13.04(2)(b)(i), 13.04(2)(b)(iii) and 13.04(2)(b)(iv) of the Rules; and
(d)by reason of each of the defaults referred to at subparagraphs (a) through to (c) above (inclusive), to defend these proceedings with due diligence, which in it of itself, is a separate default within the meaning of r 13.04(2)(b)(vii) of the Rules.
Entitlement to relief
On the face of the matters outlined in the SOC, the FWO says she has an entitlement to the relief sought.
A failure to comply with a compliance notice is a contravention of s 716(5) of the Act. The matters set out in [1] to [14] of the SOC give rise to the contravention of s 716(5) of the Act by the first respondent, in particular:
(a)the Compliance Notice was given to the first respondent;[26]
(b)the Compliance Notice required the first respondent to calculate and pay the outstanding entitlement by 3 April 2023 and to produce reasonable evidence of compliance with the Compliance Notice to the applicant by 12 April 2023 (Required Action);[27] and
(c)the first respondent did not take the Required Action within the time required by the Compliance Notice or at all.[28]
[26] SOC at [8]
[27] SOC at [9]
[28] SOC at [12]
The matters set out in [15] to [17] of the SOC, give rise to the second respondent’s contravention of s 716(5) of the Act by virtue of her involvement, within the meaning of s 550(2)(c) of the Act, in the first respondent’s contravention of s 716(5) of the Act which are referred to in the paragraph immediately above.
Section 716(5) of the Act is a civil remedy provision for the purpose of s 539 of the Act. Section 539 enables an inspector to apply to the Court for orders in relation to contraventions of civil remedy provisions (including s 716(5)).
The applicant therefore submits that she is entitled to the relief sought in the default judgment application and has made out a case for relief on the face of the SOC.
The Court’s power to make the declarations and orders sought
Pursuant to s 545(1) of the Act, the Court may make any orders it considers appropriate if it is satisfied that a person has contravened a civil remedy provision of the Act. These orders may include:
(a)declarations pursuant to s141(1) of the Federal Circuit and Family Court of Australia Act 2001 (Cth) (Court Act);
(b)pecuniary penalties, pursuant to s 546(1) of the Act;
(c)compensation, pursuant to s 545(2) of the Act; and
(d)interest, pursuant to s 547(2) of the Act and s 211 of the Court Act.
The Court has a wide discretionary power to make declarations.[29] The Court may make declarations based on admissions to be made consequent on default.[30] The FWO submits there is public interest in making the declarations sought, in that it will help educate employers about their obligations to comply with and the consequences of not complying with compliance notices and mark the Court’s disapproval of the contravening conduct and assist in achieving general deterrence.[31]
[29] Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) FCR at [66] to [69] per Gordon J
[30] Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006)
[31] ACCC v Yellow Page (No 2) at [69] per Gordon J
CONCLUSION
I am satisfied that the FWO has standing to have brought these proceedings on the basis of the matters set out in the SOC, and that the applicant has an entitlement to the reliefs sought. I am of the view that there is significant utility in making the orders sought and also in the making of the declaration sought by the applicant, and I am satisfied that there is a public interest in doing so.
The applicant also seeks a separate hearing in this matter in respect of penalty, together with any consequential orders for the service of submissions and evidence for the parties. I am of the view that that is a sensible course, and I will also make orders to that effect setting a further timetable for hearing on which occasion, the respondents are welcome to attend and to be heard in respect of the remaining matters for determination.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 November 2024
236 ALR 665 at [48] to [59] per Kiefel J, cited in Fair Work Ombudsman v Lohr [2018] FCA 5 at [19] per Bromwich J
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