Fair Work Ombudsman v Greenan
[2017] FCCA 1453
•28 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v GREENAN | [2017] FCCA 1453 |
| Catchwords: PRACTICE AND PROCEDURE – power of Federal Circuit Court of Australia to grant declaratory relief on an interlocutory default judgment application – review of authorities DECLARATORY RELIEF – review of history to grant |
| Legislation: Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), ss.535(1), 566, 567, 568, 716(5) Fair Work Regulations 2009 (Cth), regs.3.32, 3.40 |
| Cases cited: ACCC v 1Cellnet LLC [2005] FCA 856 Kanaga Dharmananda & Anthony Papamatheos, Perspectives on Declaratory Relief (The Federation Press, 1st ed, 2009) |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | LEONARD GREENAN |
| File Number: | MLG 122 of 2017 |
| Judgment of: | Judge Wilson |
| Hearing date: | 14 June 2017 |
| Date of Last Submission: | 14 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Solicitor for Fair Work Ombudsman |
| No appearance on behalf of the respondent |
I DECLARE THAT -
Based on the admissions which the respondent is deemed to have made by reason of his default, pursuant to rule 13.03A(2) of the
Federal Circuit Court Rules 2001 (Cth) (“FCCR”), the respondent contravened -(a)s.716(5) of the Fair Work Act 2009 (Cth) (“FWA”) by failing to comply with a compliance notice dated 26 July 2016 (compliance notice) which required the respondent to pay
Mr Waseem Adil (“Mr Adil”) the amount of $7,066.49 (gross) by 26 August 2016 and provide evidence of the same to the applicant by 2 September 2016; and(b)s.535(1) of the FWA by failing to make and keep, for a period of seven years, employee records of the kind prescribed by regulations 3.32 and 3.40 of the Fair Work Regulations 2009 (Cth) in respect to Mr Adil.
I ORDER THAT -
Default judgment is entered for the applicant against the respondent pursuant to rule 13.03B(2)(c) of the FCCR.
Pursuant to ss.545(1) and 547(2) of the FWA -
(a)the respondent comply with the terms of the compliance notice by paying compensation of $7,066.49 to the applicant, within
14 days of the Court's order;(b)within 14 days of receipt of the compensation referred to at
order 3(a) above, the applicant will pay Mr Adil the amount as set out in the compliance notice; and(c)in the event that the applicant cannot locate Mr Adil,
the Applicant will pay the applicable amount due to him to the Consolidated Revenue Fund of the Commonwealth within a further 7 days.Pursuant to s.547(2) of the FWA the respondent is to pay interest in the sum of $156.33 calculated at the pre-judgment interest rate from 18 January 2017 on the amount outlined at order 3(a) above.
Pursuant to s.545(1) of the FWA, the respondent is to -
(a)within two months of the date of this order, register
with the applicant's "My Account" portal at " and complete the profile including the Award options;(b)within a further month after the period at order 5(a) above, provide to the applicant his "My Account" registration number; and
(c)within a period of two months, register with the
applicant's Online Learning Centre at " and complete all education courses designed for employers and provide the applicant with evidence of completion of those courses within a further one month.The applicant's claim for pecuniary penalties to be imposed on the respondent pursuant to s.546(1) of the FWA is to be determined on the papers in Chambers.
The applicant file and serve its evidence and submissions on the issue of penalty by 4.00 p.m. on 26 July 2017.
The respondent file and serve his evidence and submissions on the issue of penalty by 4.00 p.m. on 9 August 2017.
The parties have liberty to apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 122 of 2017
| FAIR WORK OMBUDSMAN |
Applicant
And
| LEONARD GREENAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The application in a case filed by the applicant (“FWO”) on
4 May 2017 raised a point not presently the subject of a considered decision, namely the power of the Federal Circuit Court of Australia (“FCCA”) to grant a declaration on an interlocutory application where the respondent had not participated in the proceeding at all.
FWO sought declaratory relief in this case as the prelude to its application for the imposition of penalties. The application was brought in the absence of a contradictor, in the absence of evidence and in the absence of as much as an address for service by the respondent.
While a practice in this court is routinely applied in acceding to FWO’s requests for interlocutory default judgements for declaratory relief,
so far as I am aware the jurisprudential basis for the FCCA making any such order has not yet been considered.
In these reasons I have done just that.
Synopsis
For the reasons that follow, in my judgment FWO is entitled to the interlocutory declarations in default as I have pronounced earlier in this judgment.
Relevant factual setting
On 19 January 2017 FWO commenced this proceeding seeking relief under the Fair Work Act 2009 (Cth) (“FWA”). FWO filed a statement of claim at the same time as it filed its application to commence this proceeding. In the statement of claim FWO asserted that the respondent had contravened various provisions of the FWA by failing to comply with a compliance notice and by failing to keep employee records as required by the Fair Work Regulations 2009 (Cth) (“FWR”). FWO also sought orders directing the respondent to pay the sum of $7,066.49 to FWO plus interest plus such pecuniary penalty as may be hereafter ordered.
Importantly for present purposes, FWO sought declarations that the respondent contravened –
a)s.716(5) of the FWA by failing to comply with a compliance notice; and
b)s.535(1) of the FWA by failing to keep records prescribed by regulations 3.32 and 3.40 of the FWR.
The declarations sought were in addition to the other orders sought under ss.545(1), 547(2), 546(1) and 546(3) of the FWA.
Underpinning FWO’s application to this court was a claim that Waseem Adil, an employee over a three-month period between
January and March 2016 with a motor vehicle retailer, had not been adequately paid. In the statement of claim FWO alleged that the respondent was the proprietor of the labour hire business that provided labour in the motor vehicle retailing repair industry. FWO also alleged that the respondent held a labour hire contract with
Sterling Consolidated Pty Ltd, the trustee of the Sterling Trust that traded as “Melbourne City Renault”.
In the statement of claim FWO contended that the respondent employed Mr Adil as a casual employee as a mechanic on terms incorporating the Vehicle Manufacturing, Repair, Services and Retail Award 2010. FWO further alleged that the respondent failed to pay
Mr Adil the sum of $7,066.49 and that in consequence of that failure, on 26 July 2016 FWO served a compliance notice on the respondent requiring him to make good that failure. FWO alleged the respondent failed to comply with the compliance notice. FWO also alleged that the respondent did not keep records relating to Mr Adil as the FWR required.
The respondent has not participated in this proceeding in any shape or form. When this proceeding was first before me on 9 March 2017,
at the request of FWO’s solicitor then appearing I made orders that permitted process to be served on the respondent by registered post and by leaving a copy of all relevant documents at the respondent’s last known address in Mount Martha in the State of Victoria. FWO duly instructed a process server to effect service at that address. It seemed that the respondent had rented that premises and had been evicted from it. But the process server obtained the landlord’s telephone details. According to his affidavit sworn 18 April 2017, George Raptis,
the solicitor at FWO handling this case, telephoned the landlord and obtained email details of the respondent’s wife to which Mr Raptis emailed, among other documents, the initiating application,
the statement of claim, my order of 9 March 2017 and a letter from FWO dated 14 March 2017.
According to Mr Raptis, on 29 March 2017 he arranged for those documents to be sent to the Mount Martha address again.
On 21 April 2017 this proceeding came before me for a second time. Mr Raptis appeared. The respondent did not. Orders were made permitting service to be effected by emailing them to the landlord.
Mr Raptis did that on 8 May 2017.
On 21 April 2017 I also ordered FWO to file and serve its foreshadowed application for default judgement by 28 April 2017. Somehow, the second page of the application in a case filed on
1 May 2017 was missing. That was remedied and a complete version was filed on 4 May 2017. FWO served it on the landlord’s email address.
Nothing in the way of documentation has been filed by the respondent. Unsurprisingly, FWO was keen to move for judgment.
The power to order declaratory relief
Pursuant to s.8(3) of the Federal Circuit Court of Australia Act 1999 (Cth), the FCCA is a court of record and is a court of law and equity.
So far as the original jurisdiction of the FCCA is concerned, s.10(1)(a) of the Federal Circuit Court of Australia Act provides as follows –
(1)The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:
(a) by express provision
…
Under the FWA, original jurisdiction is conferred on the FCCA under several provisions. Section 566 of the FWA states as follows –
Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.
Section 567 of the FWA is in the following terms –
Jurisdiction conferred on the Federal Circuit Court under
section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if:(a)an application is made to the Federal Circuit Court under this Act; or
(b)an injunction is sought under section 15 of the
Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or(c)a declaration is sought under section 16 of the
Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or(d)proceedings in relation to a matter arising under this Act are transferred to the Federal Circuit Court from the Federal Court; or
(e)the High Court remits a matter arising under this Act to the Federal Circuit Court.
Under the heading “No limitation on Federal Circuit Court’s powers” immediately above s.568 of the FWA, the body of s.568 of the FWA is in the following terms –
To avoid doubt, nothing in this Act limits the Federal Circuit Court's powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999 .
That then invites attention to ss.14, 15 and 16 of the Federal Circuit Court of Australia Act.
Section 14 is in the following terms –
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b)on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.
Section 15 provides as follows –
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a)make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
Section 16 is expressed in the following manner –
(1)The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2)A proceeding is not open to objection on the ground that a declaratory order only is sought.
From that cursory survey of the legislation it is readily apparent that –
a)the FCCA as a court of law and equity has power to grant declaratory relief in cases within its original jurisdiction;
b)matters under the FWA are within the FCCA’s original jurisdiction in respect of which nothing in the FWA limits the powers of the FCCA to, among other things, grant declaratory relief including interlocutory declaratory orders; and
c)
section 567(c) of the FWA specifically confers power on
the FCCA to grant a declaration pursuant to s.16(1) of the
Federal Circuit Court of Australia Actin relation to a matter arising under the FWA.
Ordinarily, declaratory relief is granted after a full ventilation of the subject, usually after a trial. This application raised a different question however. In this application FWO sought to invoke the Federal Circuit Court Rules 2001 (Cth) (“FCCR”) relating to default judgment. Accordingly, it is necessary to turn to those rules.
Default judgment in the FCCA
In three different circumstances a party is entitled to seek judgment under the FCCR where there has been default.
The first is FCCR 13.07. When applied to an applicant, an order under that rule is premised on there being evidence that the opposing party, ordinarily the respondent, has no answer to the claim. Rule 13.07 appears in Division 13.3 of the FCCR, headed “Summary disposal and stay”. In state courts, it has a parallel with summary judgment applications.
The second situation entitling a party to default judgement is set out in rule 13.03C(1)(c) of the FCCR. That rule applies in circumstances where a party is absent from the hearing. If the absent party is the applicant, under this rule the court is empowered to dismiss the entire proceeding. No comparable power is expressed in that rule to give judgment in favour of the applicant if the absent party is the respondent.
The rule that addresses default by the respondent is rule 13.03B of the FCCR. The rule is headed “Orders on default”. It applies in different ways where the default is by the applicant on the one hand or by the respondent on the other. However, the rule does not descend to the detail of identifying the nature of the default that must exist before the rule is enlivened. That is provided elsewhere in the FCCR.
Rule 13.03B simply speaks of either the applicant or the respondent being in default.
In this case Mr Raptis submitted that the respondent’s default related
to his failure to –
a)file and serve a notice of address for service in accordance with rule 9.01 of the FCCR;
b)file a response in accordance with rules 4.03 and 4.04 of the FCCR; and
c)
defend this litigation with due diligence as required by
rule 13.03A(2)(b)(vii) of the FCCR.
FWO contended that under rule 13.03B(2)(c) of the FCCR, the court is entitled to give judgment against a defaulting respondent where the proceeding was commenced by application supported by statement of claim. That was the situation in this proceeding. Thus, the entitlement of an applicant to apply for judgment under rule 13.03B(2)(c) was –
a)some default by the respondent; and
b)the proceeding having been commenced by application supported by statement of claim.
Where those two preconditions existed the court “may” (that was the word used in the rule, denoting a discretionary entitlement) give judgment against a respondent for the relief that the applicant appeared entitled to on the statement of claim and the court was satisfied that it had power to grant that relief.
The issue that vexed me most in this case was the element in
rule 13.03B(2)(c)(ii) namely “the court is satisfied it has power to grant” the declaratory relief. During argument Mr Raptis debated with me my concerns about whether FWO was, in stricto sensu, entitled to declaratory relief in the absence of evidence in this case, in the absence of a contradictor and in the absence of what appeared to me at first blush to be a “real issue” falling for the making by the court of a declaration in respect of competing contentions on that very issue.
In the passages below I have considered those concerns.
Having investigated the point in considerable depth after reserving my decision following argument advanced by Mr Raptis, I am now satisfied that it is appropriate to make the default orders for declaratory relief urged by Mr Raptis.
Default judgment for declaratory relief prior to 2004
Prior to commencement of the Federal Court Amendment Rules2004 (No 4) (28/2004), the ability of a party to obtain default judgment for declaratory relief was very limited. As long ago as 1894, Kekewich J held in Williams v Powell[1] that a declaration was a judicial act that ought not to be granted merely upon admission or by consent or in default of appearance or defence.
[1] [1894] WN 141.
In Forster v Jododex Australia Pty Ltd[2] (“Foster v Jododex”) Gibbs J (as the Chief Justice then was) referred to Lord Dunedin’s speech in Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd[3] and held that in general, before the discretion is exercised in favour of making a declaration –
a)the question must be real and not theoretical;
b)the person raising it must have a real interest to raise it; and
c)the person raising it must have a proper contradictor who has a proper interest to oppose the declaration sought.
[2] (1972) 127 CLR 421.
[3] [1921] 2 AC 438.
A strong line of authority existed to the effect that evidence to support the making of a declaration was essential. In Wallersteiner v Moir[4] Buckley LJ adopted the observations of Kekewich J in Williams v Powell. So did the Full Court of the Federal Court of Australia in
BMI Ltd v Federated Clerks Union of Australia (NSW) Branch.[5]
The rationale of the rule was said to have been that once a declaration had been uttered, it could not be recalled even though it was later negated.[6] To like effect was the rationale explained in Patten v Burke Publishing Co Ltd[7] (“Patten v Bourke Publishing”) where it was held that the court ought not to declare as fact that which might not have been proved to be such had the facts been investigated.
[4] [1974] 3 All ER 217.
[5] (1983) 51 ALR 401.
[6] PW Young QC, Declaratory Orders (Butterworths, 2nd ed, 1984) 601.
[7] [1991] 2 All ER 821, 823.
[8] (1960) 103 CLR 165.
Slightly earlier, in 1960 the High Court of Australia held in
Federal Commissioner of Taxation v Finn[8]that there was no presumption upon the default of the respondent about the correctness of an applicant’s claim.
The court’s reluctance to grant declarations on interlocutory applications stemmed from the desire to avoid rendering points
res judicatawithout hearing argument from both sides to the dispute. Two British decisions illustrate the point, namely New Brunswick Railway Company v British & French Trust Corporation Ltd[9] and
Kok Hoong v Leong Cheong Kweng Mines Ltd.[10] The court’s reluctance to grant declarations on default judgment applications also related to the court’s general refusal to address hypothetical questions, a concept propounded as long ago as 1921 in Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd.
[9] [1938] 4 All ER 747.
[10] [1964] AC 993.
Further, it is said time and again that all persons who appear to have a real interest in the application for the grant of declaratory relief should be before the court. An early exposition of that principle was given by Viscount Maugham in London Passenger Transport Board v Moscrop.[11] To that end, ordinarily courts are reluctant to grant declaratory relief without a proper contradictor, a point made by Ormrod J in Aldrich v Attorney-General.[12]
[11] [1942] AC 332, 345.
[12] [1968] P 281, 295.
In the leading English textbook on declarations, the following passage appears –
It can therefore be said that there is a substantial risk of the grant of a declaration being refused unless –
(a) there is a dispute between the parties;
(b)the dispute arises from specific facts which are already in existence;
(c) the dispute is still alive; and
(d)its determination will be of some practical consequence to the public.
That statement emanates from Zamir & Woolf, The Declaratory Judgment.[13] A repeat theme in it is the need for the court that is urged to grant the declaration to hear evidence and argument.
[13] (Sweet & Maxwell, 4th ed, 2011).
The above survey of cases has predominantly traced the UK position. But the Australian position was to the same effect. In 1996, Lockhart J of the Federal Court of Australia emphasised, among others things,
the need for a proper contradictor, the need for the party seeking the declaration to have a real interest to raise it and the need for the determination of a real legal controversy. That much was said in
Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation.[14] Somewhat earlier, in Forster v Jododex, Gibbs J (as the Chief Justice then was) made similar observations. A very useful collection of essays on the history, breadth and scope of declaratory relief is contained in the publication by Kanaga Dharmananda & Anthony Papamatheos, Perspectives on Declaratory Relief.[15]
[14] (1996) 68 FCR 406.
[15] (The Federation Press, 1st ed, 2009).
It should not be thought that an immutable rule of law exists to the effect that an applicant is unable to obtain a default judgment for declaratory relief. Any judicial statement about the availability of declaratory relief at an interlocutory stage, especially in default, is no more than the expression of a rule of practice, as was pointed out in Patten v Burke Publishing as well as in Williams, Civil Procedure Victoria.[16]
[16] (LexisNexis) 23.05.30.
[17] (2003) 216 CLR 53 at [90].
The dangers associated with making declarations by consent (inferentially, in the absence of findings of fact based on contested evidence) was highlighted by the High Court of Australia in
Rural Press Ltd v ACCC[17](“Rural Press”) (Gummow, Hayne and Heydon JJ). The decision in ACCC v Midland Brick Co Pty Ltd[18]
(Lee J) also involved an application for declarations by consent, where his Honour also referred to the cautionary words mentioned in
Rural Pressabout the dangers of making declarations by consent.
[18] [2004] FCA 693.
Understandably, in view of the above-stated short recitation of the English and Australian learning on point prior to 2004, when I first heard the application urged by Mr Raptis I was highly suspicious about FWO’s entitlement to the orders it sought.
The introduction of order 35A in the Federal Court of Australia
In ACCC v Dataline.Net.Au Pty Ltd[19] (“Dataline”) Kiefel J (then of the Federal Court of Australia prior to her Honour’s elevation to the
High Court of Australia) traced the history of events leading to the introduction in the Federal Court of Australia of order 35A of the Federal Court Rules 2011 (Cth). Order 35A(3)(c) largely, although not precisely, corresponds to rule 13.03B(2)(c) of the FCCR. Order 35A(2) largely corresponds with rule 13.03B(2) of the FCCR.
[19] [2006] FCA 1427.
Once it is recognised that the parallel between order 35A(3) and rule 13.03B(2) is very close indeed, the application of the authorities in the Federal Court of Australia about order 35A is almost irresistible.
It is as well to set out each so that the parallel is apparent.
Order 35A(2) is as follows –
(1) For this Order, an applicant is in default if the applicant:
(a)fails to comply with an order of the Court in the proceeding; or
(b) fails to attend a directions hearing; or
(c)fails to file and serve a pleading as required by
Order 11; or
(d)fails to serve a list of documents or an affidavit or other document, or does not produce a document as required by Order 15; or
(e)fails to do any act required to be done by these Rules; or
(f) fails to prosecute the proceeding with due diligence.
(2)For this Order, a respondent is in default if the respondent has not satisfied the applicant's claim and:
(a)the time for the respondent to enter an appearance has expired and the respondent has failed to enter an appearance; or
(b)the time for the respondent to file a defence has expired and the respondent has failed to file a defence; or
(c) the respondent fails to attend a directions hearing; or
(d)the respondent fails to comply with an order of the Court in the proceeding; or
(e)the respondent fails to file and serve a pleading as required by Order 11; or
(f)the respondent fails to serve a list of documents or an affidavit or other document, or does not produce a document as required by Order 15; or
(g)the respondent fails to do any act required to be done by these Rules; or
(h)the respondent fails to defend the proceeding with due diligence.
Rule 13.03A is as follows –
(1)For rule 13.03B, an applicant is in default if the applicant fails to:
(a)comply with an order of the Court in the proceeding; or
(b)file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2)For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant's claim; and
(b) fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
Order 35A(3) is as follows –
(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant, if the applicant does not take a step ordered by the Court in the proceeding in the time limited in the order.
(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 the debt or liquidated damages and, if appropriate:
(i) costs:
(A) in a sum fixed by the court; or
(B) to be taxed; and
(ii) interest; or
(c)if the proceeding was commenced 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 specified 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.
(3)If leave has been granted under paragraph (2)(b) and the applicant has
(a) an affidavit, or affidavits, proving:
(i) service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b)an affidavit in respect of the debt or liquidated damages in accordance with Form 46C;
the Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in the leave given under paragraph (2)(b), without giving notice, or further notice, to the respondent.
(4)Unless the Court otherwise orders, if a respondent to a cross‑claim is in default, a judgment (including a judgment by default or by consent), or decision (including a decision by consent), on any claim, question or issue in the proceeding on the originating process, or any other cross‑claim in the proceeding, is binding as between the cross‑claimant and the respondent to the cross‑claim so far as the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross‑claim.
(5)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give such directions, and specify such consequences for non‑compliance with the order, as the Court thinks just.
Rule 13.03B is as follows –
(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(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 commenced 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.
(3)The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i) service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b)an affidavit for the debt or liquidated damages in accordance with the approved form.
(4)Unless the Court otherwise orders, if a respondent to a cross-claim is in default:
(a)a judgment or decision on any claim, question or issue in the proceeding on the originating process; or
(b) any other cross-claim in the proceeding;
is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.
(5) In subrule (4):
decision includes a decision by consent.
judgment includes a judgment by default or by consent.
(6)The Court may make an order of the kind mentioned in subrule (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 thinks just.
An early consideration of order 35A was given by Heerey J in
Arthur v Vaupotic Investments Pty Ltd.[20] There, His Honour held that the requirements of order 35A(3)(2)(c) were satisfied and as the proceeding was commenced by application supported by statement of claim his Honour was empowered to give judgment. His Honour added that the rule did not require proof by way of evidence of the applicant’s claim – rather, it required on the face of the statement of claim that there was a claim for the relief sought and, of course, that the court had jurisdiction to grant that relief.
[20] [2005] FCA 433.
It may be said that his Honour’s comments were general and of no particular application to a claim for declaratory relief as his Honour granted an injunction and made orders for delivery up for destruction of various licence plate covers. Yet the decision is presently relevant as it pronounced upon the absence of the need for evidence about the matters pleaded.
The decision of Nicholson J in ACCC v 1Cellnet LLC[21] also addressed order 35A in the context of injunctions. The court granted liberty to apply for orders by way of declaratory relief. In Luna Park Sydney Pty Ltd v Bose[22] Jacobson J dealt with an application for default judgment under order 35A but the case did not involve declaratory orders.
[21] [2005] FCA 856.
[22] [2006] FCA 94.
In Dataline, Kiefel J specifically considered declaratory relief based on deemed admissions, the power of the Federal Court of Australia to grant declarations and the notion of the court refusing declaratory relief in case of default being based on a rule of practice rather than a rule of law. Her Honour said the following –
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’.[23][23] [2006] FCA 1427 at [59].
An appeal from that decision was dismissed in ACCC v Dataline.Net.Au Pty Ltd[24] (“ACCC v Dataline”).
[24] [2007] FCAFC 146.
The procedure under order 35A was used in Humphries v Halifax Vogel Group Pty Ltd[25] where the applicant sought default judgment for delivery up of a particular product that infringed the applicant’s patents and for an account of profits. Other than as an illustration of the flexible operation of the order 35A procedure and the type of case to which it can be applied, that authority is of limited utility for the purposes of the present analysis.
[25] [2008] FCA 569.
Similarly, Gordon J adopted the order 35A procedure in connection with a trademark in several cases including Nokia Corporation v Yu(No 2)[26] and Chanel Ltd v Donoghue.[27] Even a proceeding under the Corporations Act 2001 (Cth) was properly the subject of an application of the order 35A procedure, as was held in Turner; In the matter of L.A. Technologies Pty Ltd (in liq).[28]
[26] [2008] FCA 1088.
[27] [2008] FCA 1643.
[28] [2009] FCA 805.
In ACCC v Powerballwin.com.au Pty Ltd,[29] Tracey J addressed declaratory relief and made highly pertinent observations about the circumstances of the court making declarations where proceedings involved a matter of public interest (as is this case). However, his Honour was not concerned with the default judgment application.
[29] [2010] FCA 378.
Gordon J dealt with an order 35A application in the context of default judgment for negligent advice in Quatre-Bornes Pty Ltd v John H Walker & Associates[30] although her Honour did not make declaratory orders.
[30] [2010] FCA 492.
[32] [2011] FCA 1227.
Her Honour was concerned with declaratory orders under order 35A in ACCC v Yellow Page Marketing BV(No 2).[31] Her Honour reviewed an array of authorities and considered it appropriate to exercise her Honour’s discretion under order 35A. Regrettably, the report of the decision in (2011) 195 FCR 1 did not reveal whether her Honour adopted the suggestion of Kiefel J in Dataline to express the declarations as being based on deemed admissions. Yet in
Speedo Holdings B.V. v Evans (No 2)[32]Flick J pointed out that by reason of the observations of the Full Court in ACCC v Dataline the facts alleged in the statement of claim are deemed to have been admitted by the respondent. Flick J did not make declarations.
[31] [2011] FCA 352.
In an extremely helpful decision about declaratory relief generally, ACCC v MSY Technology Pty Ltd,[33] the Full Court of the Federal Court of Australia addressed issues relating to the availability of declaratory relief in the absence of a proper contradictor. The Full Court held that the primary judge was not bound to refuse to grant the declaratory relief sought on the basis of the absence of proper contradictor.
That case did not involve the order 35A procedure, however.
[33] [2012] FCAFC 56.
The last of the cases surveyed by me was a case under the FWA that involved default declaratory relief. It is of particular relevance to this case. In Fair Work Ombudsman v Al Hilfi,[34] Besanko J made orders in the terms urged in this case by FWO.
[34] [2015] FCA 313.
Thus, a direct binding factual and legal parallel exists in this case for me to accede to the request advanced by Mr Raptis.
Drawing the threads together
Based on the foregoing, it seems to me that the proposition set out below emerge from the legislation and from the decided cases surveyed above.
First, the FCCA is seized of statutory power to grant declaratory relief generally and also specifically under the FWA.
Second, the FCCA has power to grant default judgment, including the power to grant, among other remedies, default judgment for declaratory relief.
Third, no longer is there a rule of practice requiring the contradictor or evidence, a real and not theoretical question to be resolved or even a person with a real interest to raise the point for declaratory relief.
Fourth, order 35A of the rules of the Federal Court of Australia has such correspondence of detail with rule 13.03B of the FCCR that the cases decided in relation order 35A should be applied to cases that raise issues touching upon s.13.03B of the FCCR.
In all the circumstances I am satisfied that it is appropriate to make orders in terms for which FWO contended in this case and I so make those orders.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 28 June 2017
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