Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.1)
[2013] FCCA 1926
•31 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v JAYCEE TRADING PTY LTD & ANOR (No.1) | [2013] FCCA 1926 |
| Catchwords: INDUSTRIAL LAW – PRACTICE & PROCEDURE – Default judgment – no appearance by the first or second respondent – application proceeded ex parte – default judgment entered against the respondents. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.13.03A, 13.03B. |
| Australian Competition and Consumer Commission v Yellow Page Marketing BV and Yellow Publishing Limited (No 2) (2011) 195 FCR 1 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | JAYCEE TRADING PTY LTD |
| Second Respondent: | RENEE MARTIN |
| File Number: | SYG 1416 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 31 October 2013 |
| Date of Last Submission: | 31 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr James Robertson (Fair Work Ombudsman) |
| No appearance by or on behalf of the Respondent. |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1416 of 2013
| FAIR WORK OMBUDSMAN |
Applicant
And
| JAYCEE TRADING PTY LTD |
First Respondent
| RENEE MARTIN |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an ex parte application by the applicant for default judgment to be entered against the respondents in terms of the orders sought in the Statement of Claim filed on 24 June 2013. Those orders are as follows:
“24. An order pursuant to section 545 of the [Fair Work Act 2009 (Cth)] directing the first respondent to comply with the terms of the Compliance Notice.
25. An order that, in the event the first respondent is unable to locate any of the Employees set out in Annexure A, the first respondent is to pay the amounts as set out in Annexure A to the Consolidated Revenue of the Commonwealth pursuant to subsection 559(1) of the FW Act, within the time provided by these orders.”
The application also seeks declarations in the following terms:
“22. A declaration that the first respondent contravened the following civil remedy provisions:
(a) subsection 716(5) of the FW Act, by failing to comply with the Compliance Notice; and
(b) subsection 712(3) of the FW Act, by failing to comply with each of the First NTP and Second NTP.
23. A declaration that the second respondent was involved in (within the meaning of subsection 550(2) if the FW Act) the first respondent’s contraventions set out in paragraph 22 above.”
Rule 13.03A(2) of the Federal Circuit Court Rules 2001 (Cth) provides
“ (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.” (emphasis added)
The applicant and the respondents were represented before me at a directions hearing on 4 September 2013, on which occasion the respondents were directed to file and serve a defence by 27 September 2013.
At a further directions hearing before me on 3 October 2013, time was extended to the respondents to file and serve a Defence by 11 October 2013. A further order was made on that occasion that in the event no Defence was filed by the respondent by 11 October 2013, the applicant had leave to file and serve an Application in a Case seeking default judgement. The respondents have failed to file a Defence in compliance with those orders.
The first respondent was represented by Mr Robertson, who read his affidavit, sworn and filed on18 October 2013, in support of the application this morning. That evidence, which I accept, is to the effect that the applicant’s Application in a Case, filed 18 October 2013, and affidavit in support were served on the respondents on 25 October 2013.
There is no evidence before this Court that the respondent has satisfied the applicant’s claim. In the circumstances, I am satisfied that the respondents are in default.
Given that the respondents are in default, the Court may, inter alia, make orders pursuant to r.13.03B of the Federal Circuit Court Rules2001 (Cth) that:
“2) If a respondent is in default, the Court may:
…
(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;”
In proceeding with the hearing of the applicant’s default judgment application this afternoon, the applicant read the affidavit of James Gregory Robertson, sworn 30 October 2013. Based on that evidence, I am satisfied that the respondents have been properly served with the Application in a Case, filed on 18 October 2013, and the evidence in support in accordance with the Federal Circuit Court Rules 2001 (Cth).
The Statement of Claim pleads, essentially, three contraventions by the first respondent, being:
i)a breach of s.716(5) of the Fair Work Act2009 (Cth);
ii)a failure by the first respondent to comply with a compliance notice dated 22 May 2012; and,
iii)two contraventions of s.712(3) of the Fair Work Act2009 (Cth), being further failures of the first respondent to comply with Notices to Produce issued on 6 March 2012 and 18 September 2012.
I am informed that as at the date of today’s hearing, there has been no compliance with any of those orders. I should note that there was a failure to comply with the Notices to Produce within the timeframe specified in the notices to produce.
The relief sought by the applicant in the statement of claim is as follows:
“22. A declaration that the first respondent contravened the following civil remedy provisions:
(a) subsection 716(5) of the FW Act by failing to comply with the Compliance Notice; and
(b) subsection 712(3) of the FW Act, by failing to comply with each of the first NTP and Second NTP.
23. A declaration that the second respondent was involved in (within the meaning of subsection 550(2) of the FWA) the first respondent’s contraventions set out in paragraph 22 above.
24. An order pursuant to section 545 of the FW Act directing the first respondent to comply with the terms of the Compliance Notice.
25. An order that, in the event that the first respondent is unable to locate any of the Employees set out in Annexure A, the first respondent is to pay the amounts as set out in Annexure A to the Consolidated Revenue of the Commonwealth pursuant to subsection 559(1) of the FW Act, within the time provided by these orders.
26. An order that the first respondent pay penalties pursuant to subsection 546(1) of the FW Act for the contraventions of the FW Act alleged in paragraph 22 above.
27. An order that the second respondent pay penalties pursuant to subsection 546(1) of the FW Act in respect of her involvement (within the meaning of subsection 550(2) of the FW Act) in each of the contraventions outlined in paragraph 22 above.
28. An order pursuant to subsection 546(3)(a) of the FW Act that all pecuniary penalties imposed be paid into the Consolidated Revenue Fund of the Commonwealth.
29. An order that any penalties imposed by the Court and payment of any monies to the Employees as a result of the Compliance Notice ordered be paid within twenty-eight days of order for payment.
30. An order that the applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.”
The Statement of Claim has particularised the relevant Compliance Notice and the Notices to Produce the subject of the contraventions.
The applicant also seeks relief against the second respondent as a person involved in the contraventions by the first respondent referred to above. The accessorial liability of the second respondent is also particularised in the Statement of Claim.
In the circumstances, I am satisfied that the applicant appears entitled on the Statement of Claim to the relief sought. Further, I am satisfied that the Court has power to grant the relief sought. I note in particular the comments of Gordon J in Australian Competition and Consumer Commission v Yellow Page Marketing BV and Yellow Publishing Limited (No 2) (2011) 195 FCR 1 at [14] (“Yellow Page Marketing”), that:
“An order for judgment in default… does not require proof of the claim by evidence, but only requires that - on the face of the statement of claim - there is a claim for the relief sought; and the claim must fall within the jurisdiction of the Court.”
In the circumstances, I am of the view that it is appropriate to make the orders sought by the applicant in the Application in a Case, filed on 18 October 2013. Those order should be as follows:
“1. Default judgment be entered for the Applicant against the Respondents pursuant to sub-rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
2. The First Respondent is to comply with the Compliance Notice issued by Fair Work Inspector Evan Brownell on 22 May 2013 within 14 days, pursuant to section 545 of the Fair Work Act 2009 (Cth) (FW Act) , by:
(a) making the following payments to the following persons, less any payment of taxation that would ordinarily be deducted:
(i) $410.04 to Jason McFarlane;
(ii) $6,138.70 to Piotr Antkowiak;
(iii) $671.69 to Lily Ketteringham;
(iv) $1,314.07 to Adam James Walker;
(v) $900.70 to Nicole Lynn Wilson;
(vi) $806.13 to Amanda Kerslake;
(vii) $341.28 to Matthew William Love;
(viii) $940.45 to Melissa Kate Poolman; and
(ix) $655.75 to Nicole Louise Martin; and
(b) providing written documentation to the Applicant confirming the amounts that the First Respondent has paid (gross and net) to the persons listed in sub-order 4(a) above.”
In relation to the applicant’s application for declarations referred to above, such relief is discretionary. In Yellow Page Marketing at [67], Gordon J stated as follows:
“67. Consistent with that line of authority, it is necessary to identify considerations relevant to the exercise of the discretion to grant or not grant declarations in a case such as the present. Considerations include:
1. whether the declaration will have any utility;
2. whether the proceeding involves a matter of public interest;
3. whether the circumstances call for the making of the Court’s disapproval of the contravening conduct,
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 83; (1993) 41 FCR 89 99-100; Australian Competition and Consumer Commission v Powerballwin.com.au Pty Ltd [2010] FCA 378 at [41] and Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 at 437-438.”
I propose to stand over the issue of the declarations sought together with the issue of penalty until a later date.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 31 October 2013
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