Fair Work Ombudsman v Hickey - [2021] FedCFamC2G 79

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FedCFamC2G 79
Decision Date: 24 September 2021

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by the Fair Work Ombudsman to set aside default orders against Simon John Hickey, who had failed to respond to the initial application. The primary dispute involved allegations of unfair dismissal and underpayment of wages, with the Fair Work Ombudsman seeking relief on behalf of aggrieved employees. The Court was tasked with determining whether the default orders should be set aside, allowing Hickey to respond to the allegations, or upheld, resulting in a final decision in favour of the Ombudsman. The central legal issue before the Court was whether there were sufficient grounds to set aside the default orders that had been entered against Hickey due to his failure to respond to the initial application. This required consideration of the procedural fairness and the merits of Hickey's application to vacate the default orders.

Judge Jarrett, in delivering the decision, examined the principles of procedural fairness and the appropriate circumstances under which default orders may be set aside. The Court found that Hickey had not demonstrated a sufficient excuse for his failure to respond, nor had he presented a viable defence to the allegations. As such, the Court held that there were no grounds to set aside the default orders. The decision underscored the importance of timely responses in legal proceedings and the consequences of failing to do so. The Court ultimately dismissed the application, affirming the default orders against Hickey, and no further orders were made beyond the dismissal.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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