Fair Work Ombudsman v Hickey
[2021] FedCFamC2G 79
•24 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Hickey [2021] FedCFamC2G 79
File number(s): BRG 1072 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 24 September 2021 Catchwords: PRACTICE AND PROCEDURE – application to set aside default orders Legislation: Crimes Act 1914 (Cth), s 4AA
Fair Work Act 2009 (Cth), ss 539(2), 546(2), 557(1)
Cases cited: Australian Building and Construction Commissioner v CFMMEU [2020] FCA 549
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
CFMMEU v ABCC (2018) 264 FCR 155
Commonwealth of Australia v Director of the FWBII (2015) 258 CLR 482
Fair Work Ombudsman v Port Douglas Investments As Trustee For The Theo Sourlos Family Trust & Anor [2018] FCCA 488
Fair Work Ombudsman v WCH Services Pty Ltd & Anor [2018] FCCA 1878
Smerff Electrical v Jordan Lamacq [2019] FWCFB 1767
Division Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 17 September 2021 Date of hearing: 17 September 2021 Place: Brisbane Counsel for the Applicant: Mr McKechnie Solicitor for the Applicant: Office of the Fair Work Ombudsman The Respondent: Self-represented ORDERS
BRG 1072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: SIMON JOHN HICKEY
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
24 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application in a case filed on 4 August, 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 JARRETT:
By his application in a case filed on 4 August, 2021 the respondent Simon Hickey seeks an order that the orders and judgment given by me on 18 June, 2021 and amended on 5 July, 2021 be set aside to pursuant to r. 16.05(2)(a) of the Federal Circuit Court Rules 2021 (which were in force at the time of the application) because those orders were made in his absence. He seeks a further order that the application be reheard and the date postponed until after May, 2023.
To succeed on his application, Mr Hickey must persuade the Court to exercise its discretion to set aside the orders. The discretion provided for in FCCR 16.05(2)(a) is unfettered, but must be exercised judicially bearing in mind the public interest in there being an end to litigation.
The orders and declarations made on 18 June, 2021 (as amended on 5 July, 2021) are as follows:
THE COURT DECLARES THAT:
1. The respondent contravened the following civil remedy provisions:
a. Section 405 of the Fair Work Act 2009 (‘FW Act’) by contravening a term of the Fair Work Commission Order failing to pay compensation of $11,400 (taxed according to law) to Mr Lamacq by 4 February 2019 or at all;
b. Section 45 of the FW Act by failing to pay $1,283.92 in minimum wages to Mr Lamacq as required by clause 16.2 of the Electrical Award;
c. Section 45 of the FW Act by failing to pay $267.14 in industry allowance to Mr Lamacq as required by clause 17.2(a) of the Electrical Award;
d. Section 45 of the FW Act by failing to pay $2,086.62 in casual loading to Mr Lamacq as required by clause 10.3(b) of the Electrical Award;
e. Section 45 of the FW Act by failing to pay $1,866.66 in overtime to Mr Lamacq as required by clause 26.1(a) of the Electrical Award; and
f. Section 45 of the Act by failing to pay $482.93 to Mr Lamacq’s nominated superannuation fund as required by clause 23.2 of the Electrical Award.
THE COURT ORDERS THAT:
2. Pursuant to s.545(2) of the FW Act, the respondent, within 28 days of the date of these orders, pay:
a. The sum of $16,904.34 to the applicant; and
b. The sum of $482.93 to Mr Lamacq’s nominated superannuation fund.
3. Pursuant to s.547(2) of the FW Act that the respondent pay interest to the applicant at the applicable pre-judgment rate on the amount in paragraph 1(a) 2(a) within 28 days’ of the date of these orders.
4. The applicant distribute the amounts referred to in paragraphs 1(a) and 2 2(a) and 3 to Mr Lamacq within 28 days of receipt.
5. On or before 7 July, 2021, the applicant file and serve any evidence and submissions upon which it seeks to rely on the question of penalty.
6. On or before 21 July, 2021, the respondent file and serve any evidence and submissions upon which he seeks to rely on the question of penalty.
7. On or before 28 July, 2021, the applicant file and serve any evidence or submissions in reply.
8. The matter be heard on the papers on the question of penalty.
Those orders were made in his absence. I accept that the discretion provided for in FCCR 16.05(2)(a) is enlivened.
Ordinarily, an applicant for the exercise of the discretion should provide evidence that demonstrates that there is a reasonable explanation for their absence at the relevant court event, that material arguments are available that might reasonably lead to the making of an order different to that sought to be set aside and that no prejudice will befall the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
Mr Hickey provides a reasonable explanation for his failure to attend the hearing at which the default orders were made. He was incarcerated. He swears that he was taken into custody by the New South Wales police on 30 May, 2021 and has been in custody at Junee Correctional Centre ever since. His earliest release date is May 13, 2023. Because he was incarcerated he was unable to attend the court in Brisbane on 18 June, 2021. He gives no evidence of any attempt that he made to appear by telephone at the hearing on 18 June, 2021. He made arrangements to appear by telephone for the purposes of this application and so it is reasonable to assume that he might have made arrangements to appear by telephone on 18 June, 2021. Notwithstanding that, I am prepared to accept that Mr Hickey has established an explanation for his failure to appear on 18 June, 2021.
I am not satisfied, however, that there are material arguments available to Mr Hickey that might reasonably lead to the making of an order different to that sought to be set aside. The orders that were made related to contraventions of the Fair Work Act 2009 (Cth) by Mr Hickey. One of those contraventions was a failure to comply with an order made by the Fair Work Commission made under that Act. Mr Hickey is legally obliged to comply with that order. He appealed the making of the order but it was confirmed by a Full Bench of the Fair Work Commission. It is difficult to envisage any material arguments that he might now make which would mean that the applicant is not entitled to the orders that I made on 18 June, 2020 concerning this contravention of the Act.
The other contraventions were wage related payment contraventions. Contemporaneous with these reasons for decision, I have also published reasons for decision on penalty in respect of the contraventions the subject of the default orders made against Mr Hickey. Those reasons explain the nature and extent of the contraventions committed by Mr Hickey.
A number of matters are relevant consideration of whether material arguments are available to Mr Hickey which might reasonably lead to the making orders different to the default orders.
These proceedings have been conducted on pleadings. The Fair Work Ombudsman filed a statement of claim when it commenced this application. Mr Hickey filed a defence to the statement of claim. As part of the management of the application, directions were made on 23 May, 2020 for the parties to file and serve affidavits of evidence in chief of any witnesses upon which they intend to rely at a trial of the proceedings. Mr Hickey was to file his evidence by 4:00pm on 1 October, 2020. Mr Hickey only filed one affidavit on 1 October, 2020. That was filed in support of an application by Mr Hickey for an order that the application be heard in the small claims jurisdiction of the Court and that the final hearing be adjourned because the police had confiscated Mr Hickey’s business equipment and records. The affidavit did not deal with his evidence in chief of the hearing but rather said this (errors in the originals):
1. I request that Federal Circuit Court matter 2072 / 2019 be heard under the small claims rules because the amount sought is less than $20,000
2. All the material that I need to rely on to verify my claim and defence against the claims made by Australian Government Solicitor is contained on computers, files and materials currently held by Queensland police who have refused to return it despite a Magistrates court order to do so.
3. The order was made in Richlands magistrates court in June 2019 as part of a deal where Queensland police subsequently broke every aspect of the agreement.
4. The equipment should be returned in 2021 when court matters have been finalised
5. I cannot present any evidence or material without access to those machines.
The application was heard and determined by me on 16 October, 2020. For the reasons I delivered on that day, I refused Mr Hickey’s application. I made a further order that he file and serve affidavits of any witnesses which he intended to rely upon at the trial of the application no later than 4:00pm on 18 December, 2020.
Further directions were made on 21 December, 2020 at which time I ordered the parties to file outlines of their arguments for the final hearing which I fixed for 24 March, 2021. As matters turned out, the trial could not proceed in March and it was adjourned to 18 June, 2021.
Notwithstanding Mr Hickey’s incarceration in May, 2021 he had not filed any evidence in support of his defence to the application nor an outline of his argument in opposition to the orders sought by the applicant. He offered no explanation for that other than to say that the police had his records. He did not suggest what those records would show.
The arguments that he put about his access to material which would enable him to prove wrongdoing on the part of Mr Lamacq were dealt with by me on 16 October, 2020. Indeed, Mr Hickey’s evidence on that occasion was that a Magistrates Court had made an order directed to the police to return his equipment to him. There is no explanation as to why Mr Hickey has not sought compliance with the order or attempted to enforce it. It would seem extraordinary that despite an order being made by the Court, the police continue to refuse to return his equipment to him. There is no basis in the material before me to accept such a proposition is true.
Mr Hickey’s argument seems to be that the employee the subject of these proceedings stole from him by doing cash jobs and using company equipment to carry out those jobs. Mr Hickey has not provided one shred of evidence that would suggest that those allegations could be made out. He also suggests that the amounts the Fair Work Ombudsman claim on behalf of Mr Lamacq have been wrongly calculated by reference to inappropriate parts of the relevant award. However no particulars of those arguments have been given and no evidence has been put before me by Mr Hickey to suggest that there is any substance to those claims.
I am not satisfied that there are material arguments available to Mr Hickey that might reasonably lead to the making of an order different to that sought to be set aside.
There will be prejudice to the applicant if the orders are set aside. That prejudice can be counted in wasted time and expenditure. Mr Hickey will be prejudiced if the orders are not set aside because he will not have the opportunity to defend the proceedings in the way he wished to do so. In circumstances where he has no reasonable prospect of establishing that different orders ought to be made, the significance of that prejudice is reduced.
Having regard to the above matters, and notwithstanding that Mr Hickey has a reasonable explanation for his absence from the hearing on 18 June, 2021, I decline to set aside the orders made on that day. His application in a case filed on 4 August, 2021 will be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Dated: 24 September 2021
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