Fair Work Ombudsman v Greenan

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GREENAN [2017] FCCA 1453

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) – allegations of non-payment of wages – allegations of failures to keep proper wages records

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
Federal Circuit Court of Australia Act 1999 (Cth), ss.8(3), 10(1)(a), 14, 15, 16
Federal Circuit Court Rules 2001 (Cth), rr.4.03, 4.04, 9.01, 13.03A, 13.03B, 13.03C(1)(c), 13.07
Federal Court Amendment Rules 2004 (No 4) (28/2004)
Federal Court Rules 2011 (Cth), order 35A

Cases cited:

ACCC v 1Cellnet LLC [2005] FCA 856
ACCC v Dataline.Net.Au Pty Ltd [2006] FCA 1427
ACCC v Dataline.Net.Au Pty Ltd [2007] FCAFC 146
ACCC v Midland Brick Co Pty Ltd [2004] FCA 693
ACCC v MSY Technology Pty Ltd [2012] FCAFC 56
ACCC v Powerballwin.com.au Pty Ltd [2010] FCA 378
ACCC v Yellow Page Marketing BV(No 2) [2011] FCA 352
Aldrich v Attorney-General [1968] P 281
Arthur v Vaupotic Investments Pty Ltd [2004] FCA 693
Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation (1996) 68 FCR 406
BMI Ltd v Federated Clerks Union of Australia (NSW) Branch (1983) 51 ALR 401
Chanel Ltd v Donoghue [2008] FCA 1643
Fair Work Ombudsman v Al Hilfi [2015] FCA 313
Federal Commissioner of Taxation v Finn (1960) 103 CLR 165
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Humphries v Halifax Vogel Group Pty Ltd [2008] FCA 569
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
London Passenger Transport Board v Moscrop [1942] AC 332
Luna Park Sydney Pty Ltd v Bose [2006] FCA 94
New Brunswick Railway Company v British & French Trust Corporation Ltd [1938] 4 All ER 747
Nokia Corporation v Yu (No 2) [2008] FCA 1088
Patten v Burke Publishing Co Ltd [1991] 2 All ER 821
Quatre-Bornes Pty Ltd v John H Walker & Associates [2010] FCA 492
Rural Press Ltd v ACCC (2003) 216 CLR 53
Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227
Turner; In the matter of L.A. Technologies Pty Ltd (in liq) [2009] FCA 805
Wallersteiner v Moir [1974] 3 All ER 217
Williams v Powell [1894] WN 141

Kanaga Dharmananda & Anthony Papamatheos, Perspectives on Declaratory Relief (The Federation Press, 1st ed, 2009)
PW Young QC, Declaratory Orders (Butterworths, 2nd ed, 1984)
Williams, Civil Procedure Victoria (LexisNexis)
Zamir & Woolf, The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2011)
Applicant: FAIR WORK OMBUDSMAN
Respondent: LEONARD GREENAN
File Number: MLG 122 of 2017
Judgment of: Judge…
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Details
Case
[2017] FCCA 1453
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman (the applicant) brought proceedings against Mr. Greenan (the respondent) alleging contraventions of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth), specifically concerning the non-payment of wages and failures to keep proper wages records. The matter came before Wilson J in the Federal Circuit Court of Australia.

The central legal issue before the Court was the power of the Federal Circuit Court to grant declaratory relief on an interlocutory application for default judgment, particularly in light of the Federal Court Rules (specifically Rule 13.03B). The Court was required to consider the historical development and application of rules governing default judgments and the circumstances under which such relief could be granted.

Wilson J's reasoning focused on the interpretation of Rule 13.03B. The Court noted that where a respondent is in default, the Court may grant judgment for the relief to which the applicant appears entitled on the statement of claim, provided the Court has the power to grant that relief. This interpretation aligns with previous authorities, such as *Arthur v Vaupotic Investments Pty Ltd*, which held that the rule does not necessitate evidence proving the applicant's claim, but rather requires that the statement of claim, on its face, demonstrates a claim for the relief sought and that the Court possesses jurisdiction to grant it.

The Court ultimately granted default judgment in favour of the Fair Work Ombudsman, finding that the applicant had established a case for the relief sought based on the pleadings and that the Court had the jurisdiction to grant such relief.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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