Fair Work Ombudsman v Klinsic Constructions Pty Limited
[2022] FedCFamC2G 622
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Klinsic Constructions Pty Limited [2022] FedCFamC2G 622
File number(s): SYG 273 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 20 July 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – application in a proceeding for default judgment pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – respondents in default – applicant entitled to the relief sought Legislation: Fair Work Act 2009 (Cth) ss 545, 546, 550
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 141
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.03, 9.03, 9.04, 13.04, 13.05, 13.06, 16.01
Cases cited: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Building and Construction Commissioner v CFMEU (2018) 262 CLR 157
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352
Luna Park Sydney Pty Limited v Bose [2006] FCA 94
Tyco (Australia) Pty Ltd t/as ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 20 July 2022 Place: Sydney Solicitor for the Applicant: Mr A Morris of the Fair Work Ombudsman The Respondents: No appearance on behalf or by the respondents ORDERS
SYG 273 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: KLINSIC CONSTRUCTIONS PTY LIMITED
First Respondent
JOHN KLINSIC
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 JULY 2022
THE COURT ORDERS THAT:
(1)Pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) judgment is entered for the Applicant by reason of:
(a)the Respondents’ failure to give an address for service pursuant to Rules 6.01(1) and 9.04 of the Rules;
(b)the Respondents’ failure to file and serve a response to the application within 28 days after service of the application in accordance with rule 4.03(3) of the Rules;
(c)the First Respondent’s failure to comply with an order of the Court in the proceeding, being orders 1 and 4 made on 31 May 2022;
(d)the Second Respondent’s failure to comply with an order of the Court in the proceeding, being orders 2 and 4 made on 31 May 2022; and
(e)in light of the above defaults, the Respondents’ failure to defend the proceeding with due diligence for the purposes of rule 13.05(2)(c)(vii).
(2)Upon the admissions which the Respondents are taken to have made, consequent upon default pursuant to Rule 13.04(2) of the Rules, the Court declares that:
(a)the First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued on 9 December 2021 (Compliance Notice) within the time required for that compliance; and
(b)the Second Respondent was involved, within the meaning of section 550(2) of the FW Act, in the First Respondent’s contravention of section 716(5) of the FW Act referred to in paragraph 2(a)above and therefore contravened section 716(5) of the FW Act.
(3)Pursuant to section 545(1) of the FW Act that the First Respondent, within 28 days of this order, take the steps required by the Compliance Notice by:
(a)calculating and paying into Mr Blake Sim’s nominated superannuation fund any additional superannuation contributions it was required to pay with respect to the contraventions of the Building and Construction General On-site Award 2010 and the Building and Construction General On-site Award 2020 set out in the Compliance Notice; and
(b)preparing and producing to the Applicant a schedule of calculations in respect of any additional superannuation contributions, and evidence that these additional superannuation contributions have been rectified.
(4)The matter is adjourned to 10.15am on 28 October 2022 before Judge Given for further hearing in respect of civil pecuniary penalties sought by the applicant in respect of the contraventions declared at order 2 above.
(5)The First Respondent appoint a legal representative in accordance with Rules 6.01 and 9.04 of the Rules by 17 August 2022.
(6)The Second Respondent file and serve a Notice of Address For Service which complies with rule 6.01 of the Rules by 17 August 2022.
(7)Until such time as orders 5 and 6 are complied with, pursuant to rule 6.04(a) of the Rules, service upon each of the First and Second Respondents may continue to be effected by email transmission to the address: [email protected].
(8)The Applicant file and serve evidence and submissions on the issue of penalty by no later than 21 days prior to the date of the penalty hearing referred to in order 4 above.
(9)The Respondents file and serve evidence and submissions on the issue of penalty by no later than 14 days prior to the date of the penalty hearing referred to in order 4 above.
(10)The Applicant file and serve any reply evidence or submissions on the issue of penalty by no later than 7 days prior to the date of the penalty hearing referred to in order 4 above.
(11)A copy of these sealed Orders be served on the First Respondent and Second Respondent by sending to them at the email address identified in order 7 above.
(12)The parties have liberty to apply on 3 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
I have before me an application in a proceeding filed on 8 July 2022. This was filed outside of the time provided in the grant of leave which I made on 31 May 2022 which was made consequent upon the non-appearance of the respondents at a directions hearing on that date.
However, notwithstanding the fact that the application in a proceeding has been filed later than the time I provided, I am satisfied that there is a sufficient reason for that having occurred; namely, that between the dates of 13 May 2022 and 11 June 2022, the second respondent was corresponding with and engaging with the Fair Work Ombudsman (applicant) in relation to rectification payments being made to the employee and, in those circumstances, the applicant took extra time before reaching the decision to file the application in a proceeding.
These proceedings were commenced by the applicant, in relation to alleged contraventions of the Fair Work Act 2009 (Cth) (FW Act) after the first respondent failed to comply with a compliance notice which was issued to it on 9 December 2021 (compliance notice).
The compliance notice was issued in relation to failure to pay sums to an employee, Blake Sim (the employee) including wages, a redundancy entitlement, and a payment in lieu of notice of termination and also superannuation amounts.
The second respondent is alleged to have been involved for the purposes of s 550(2) of the FW Act in the first respondent’s contraventions.
In respect to the default judgment application, the applicant relies on the following documents:
(a)the statement of claim filed on 25 February 2022 (Statement of Claim);
(b)the Affidavit of Renee Katherine Karakinos made 22 March 2022 (Karakinos Affidavit of Service);
(c)the Affidavit of Eirinn Johanna O’Meara Hayes affirmed 8 July 2022 (Hayes Affidavit), and
(d)the Affidavit of Eirinn Johanna O’Meara Hayes affirmed 19 July 2022 (Hayes Affidavit of Service).
The applicant seeks primarily orders for default judgment based on the respondents’ failure to comply with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) together with declarations of contravention and orders on default pursuant to r 13.05(2)(c) of the Rules.
The applicant alleges that the respondents contravened various provisions in the FW Act which are set out, along with the relief sought, in paragraphs [13] to [18] of the Statement of Claim (footnote added):
13. By reason of the matters pleaded in paragraphs 5 to 12 above, Klinsic[1] contravened section 716(5) of the FW Act.
[1] Singular references to “Klinsic” in the Statement of Claim are references to the first respondent company
C. ACCESSORIAL LIABILITY OF SECOND RESPONDENT
14. By reason of the matters pleaded in paragraph 4 above, at all material times Mr Klinsic was reasonable for ensuring that Klinsic complied with the Compliance Notice.
15. By reason of the matters pleaded in paragraphs 4, 8(b) and 11 above, Mr Klinsic:
(a) had actual knowledge that the Compliance Notice was given to Klinsic, including the requirement that Klinsic comply with the Compliance Notice within the timeframe specified;
(b) had actual knowledge that Klinsic failed to comply with the Compliance Notice; and
(c) was an intentional participant in Klinsic’s failure to comply with the Compliance Notice.
16. By reason of the matters pleaded in paragraphs 14 and 15 above, Mr Klinsic:
(a) was involved, within the meaning of section 550(2)(c) of the FW Act, in the contravention of Klinsic of section 716(5) of the FW Act; and
(b) by reason of section 550(1) of the FW Act, is taken to have contravened section 716(5) of the FW Act in relation to the Compliance Notice.
D. RELIEF SOUGHT
17. The Applicant seeks a declaration that:
(a) Klinsic contravened section 716(5) of the FW Act by failing to comply with the Compliance Notice; and
(b) Mr Klinsic was involved, within the meaning of section 550(2) of the FW Act, in Klinsic’s contravention of section 716(5) of the FW Act referred to in paragraph 17(a) above and therefore contravened section 716(5) of the FW Act within the meaning of section 550(1) of the FW Act.
18. The Applicant seeks orders that:
(a) pursuant to section 545(1) of the FW Act, Klinsic take the steps that were required by the Compliance Notice within 28 days of this order, by:
(i) calculating and paying to the Employee any outstanding amount with respect to the Ordinary Time Hourly Rate of Pay Entitlement based on the Employee’s hours of work throughout the Relevant Period;
(ii) calculating and paying to the Employee the amount that should have been paid in respect of the Industry Specific Redundancy Entitlement;
(iii) calculating and paying to the Employee the amount that should have been paid in respect of the Payment in Lieu of Notice Entitlement;
(iv) calculating and paying into the Employee’s nominated superannuation fund, any additional superannuation contributions it was required to pay with respect to the entitlements referred to in paragraphs 18(a)(i) and 18(a)(iii) above; and
(v) preparing and producing to the Applicant a schedule of calculations, and evidence that the outstanding entitlements, as set out in paragraphs 18(a)(i) and 18(a)(iv) above, have been rectified;
(b) pursuant to section 547(2) of the FW Act, Klinsic pay interest at the applicable pre-judgment rate, within 28 days of this order, to:
(i) the Employee on the amounts owed to the Employee referred to in paragraphs 18(a)(i) to 18(a)(iii) above; and
(ii) the Employee’s nominated superannuation fund for the additional superannuation contributions referred to in paragraph 18(a)(iv) above;
(c) pursuant to section 546(1) of the FW Act, Klinsic pay a pecuniary penalty to the Commonwealth with respect to the contravention by Klinsic declared in paragraph 17(a) above;
(d) pursuant to section 546(1) of the FW Act, Mr Klinsic pay a pecuniary penalty to the Commonwealth for the contravention declared at paragraph 17(b) above within 28 days of this order;
(e) the Applicant have liberty to apply on seven days’ notice in the event that any of the above orders are not complied with; and
(f) such further order or orders as the Court considers appropriate.
In relation to the relevant principles, r 13.05(2)(c) of the Rules provides as follows:
(2) If a respondent is in default, the Court may:
…
(c) if the proceeding was started 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 …
In essence, orders for default judgment can be made pursuant to r 13.05(2)(c) of the Rules if the Court is satisfied that there is a sufficient basis for the relief sought by an applicant on the face of their Statement of Claim. It is well-established that, in being so satisfied, the Court does not require proof by way of evidence: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3], cited in Luna Park Sydney Pty Limited v Bose [2006] FCA 94 at [20]; Tyco (Australia) Pty Ltd t/as ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615 at [5] and Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352 (ACCC v Yellow Page (No 2)) at [14].
An application under r 13.05(2)(c) is determined on the face of the facts pleaded in the Statement of Claim. Rule 13.04(2) also provides the following:
(2) For the purposes of rule 13.05, 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.
Rule 13.06(2) of the Rules provides that the Court may make an order of the kind in sub-rule 13.05(2) of the Rules if a party to a proceeding is absent from a hearing. This morning, notwithstanding the absence of the respondents, the applicant seeks that the substantive relief sought in the application in a proceeding be made.
By that application in proceeding, the applicant seeks orders for default judgment based on each of rr 13.04(2)(b)(i), (ii), (iii), (iv), (vi) and (vii) by reason of:
(a)the respondents’ failure to give an address for service pursuant to r 16.01(1) of the Rules, to which I would also add r 9.04 of the Rules;
(b)the respondents’ failure to file and serve a Response to the application within 28 days after service of it, in accordance with rule 4.03 of the Rules, which, by reference to the Karakinos Affidavit, appears to be 28 February 2022 for the purpose of calculating the date of service;
(c)the first respondent’s failure to comply with an order of the Court in the proceeding, namely, orders 1 and 4 made by me on 31 May 2022;
(d)the second respondent’s failure to comply with orders that I made on 31 May 2022, namely, orders 2 and 4; and
(e)what is said to be a failure to defend the proceeding with due diligence, taking into account the other defaults which I have just outlined.
The background to the matter is as follows: on 25 February 2022, the applicant commenced the present proceedings against the respondents by an application and a Statement of Claim for the alleged contraventions of the FW Act.
By the Karakinos Affidavit of Service, I am satisfied that the application and the Statement of Claim were served and that, on 28 February 2022, Ms Karakinos received an email response from the second respondent which confirmed that he had received the documents.
On 12 April 2022, the matter was listed for a directions hearing before me using the Microsoft Teams platform due to ongoing COVID-19 precautions. On that occasion, while there was no formal appearance for the first respondent pursuant to r 9.04 of the Rules, the second respondent appeared using the Microsoft Teams platform.
At that first Court date I was asked to make orders which were premised on a notation that the respondents intended to make admissions to all matters alleged in the Statement of Claim and consented to the relief sought subject to the quantum of penalties. Timetabling orders were made to ensure that the first respondent appoint a lawyer and that the second respondent file a Notice of Address for Service each by 29 April 2022. Orders were also made for the filing of a joint Statement of Agreed Facts on or by 17 May 2022. The matter was, on that occasion, listed for a further directions hearing before me on 31 May 2022.
On 29 April 2022, a Notice of Address for Service was filed for the respondents. No joint Statement of Agreed Facts was forthcoming by the date ordered or at all.
On 30 May 2022, my Associate wrote to the parties to notify that the directions hearing was to be heard this time in person.
An email in reply was sent by the solicitor for the respondents, the content of which was as follows (errors in original):
We refer to your email below and advise that we have been dismissed by Klinsic Constructions Pty Limited and John Klinsic and were forced to terminate the services Ms Vanja Bulut (Barrister) who was to appear before Judge Given on our behalf at the directional hearing on 31 May 2022.
Mr Klinsic refused our advise, became uncooperative and refused to pay any further legal costs in this matter, leading to us being dismissed by Mr Klinsic as his legal representative on 13 May 2022.
Accordingly we are unable to attend in this matter as we no longer represent Klinsic Constructions Pty Limited nor John Klinsic as clients.
From annexure “EH-2” to the Hayes Affidavit, it appears that the solicitor had considered himself as having either terminated his representation himself of the respondents as at 13 May 2022 although there is no evidence that he served a Notice of Intention of Withdraw as Lawyer for the purposes of the Rules by that time.
From annexure “EH-3” to the Hayes Affidavit, being an email sent only hours after the email, which forms annexure “EH-2” was sent, it appears that the second respondent may, in fact, have terminated the retainer. From 13 May 2022 onwards, the applicant returned to corresponding with the second respondent directly. However, from that time onwards, it was also the case that the first respondent was not properly represented in the proceedings.
The termination of the solicitor for the respondents’ engagement was, as I have just noted, not brought to the Court’s attention for a further two weeks until the day before the directions hearing was to take place before me.
Between 13 May 2022 and 30 May 2022, it appears that the second respondent made additional payments to the employee and I now have, by reference to the Hayes Affidavit, the following before me:
(a)on 13 May 2022, a payment was made to the employee in the sum of $7,791.52;
(b)on 15 May 2022, a payment was made from the first respondent to the employee in the sum of $6,978.32; and
(c)a final payment was made on 6 June 2022 from the first respondent to the employee in the sum of $3,283.60.
All told, the applicant concedes that by these payments, the first respondent has paid to the employee the amount of $18,053.44 which was the amount required by reference to the compliance notice less an adjustment which was made in respect of a period during which the employee was the subject of workers compensation arrangements.
When the matter next came before me on 31 May 2022 there was no appearance for or by either of the respondents. I made orders in their absence as follows (emphasis in original):
1. The first respondent appoint a legal representative in accordance with rules 6.01 and 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) by 7 June 2022.
2. The second respondent file and serve a Notice of Address For Service which complies with rule 6.01 of the Rules by 7 June 2022.
3. Until such time as orders 1 and 2 are complied with, pursuant to rule 6.04(a) of the Rules, service upon each of the first and second respondents may be effected by email transmission to the address: [email protected].
4. The Respondents file and serve a response to the statement of claim filed by the Applicant by no later than 14 June 2022.
5. The Applicant is to file and serve any Reply by no later than 28 June 2022.
6. If the Respondents do not file and serve a response in accordance with order 1 above, the Applicant has leave to file and serve an application in a proceeding on or before 21 June 2022 seeking orders of judgement by default pursuant to rule 13.05(2)(c) of the Rules.
7. If the Applicant files an application in a proceeding in accordance with order 3 above, the Respondents are to file and serve any response and/or evidence in relation to the application in a proceeding on or before 5 July 2022.
8. The matter be listed at 9.30am on 20 July 2022 for a hearing of any application in a proceeding filed by the Applicant in accordance with order 3 above, or otherwise for a case management hearing.
9. The parties have liberty to apply on three days’ clear notice.
The applicant, as I note, concedes that, as at 11 June 2022, they were notified that rectification of certain amounts sought by the compliance notice, as adjusted, had been made. However, there remained outstanding superannuation payments in respect of portions of the amount of $18,053.44, which have been made to the employee and no evidence or confirmation of those superannuation calculations or payments have been forthcoming from the first or second respondents.
As noted earlier, on 8 July 2022 the application in a proceeding seeking default judgment was filed with the Court outside of the grant of leave. However, given the reasons for that delay, I am prepared to hear the application despite the late filing.
From the Hayes Affidavit of Service, it is apparent that the application in a proceeding, and the Hayes Affidavit, was served on the respondents by email to the Yahoo address in accordance with the order that I made to that effect on 31 May 2022.
On 13 July 2022, presumably upon receipt of the application in a proceeding and Hayes Affidavit, together with the covering correspondence from Ms Hayes, which informed the respondents of the time, date and place for today’s hearing, the Court registry received an email from the second respondent which stated (errors in original):
Dear Sir Madam,
The Hearing date set by ? was not consulted with Klinsic and we can not attend due to following reasons.
1. Klinsic is currently working in Regional NSW - Rylstone. Klinsic's are now only one person, and leaves his residence on Sunday of each week and returns back on Friday. As a result of that we can't attend your Hearing date, because we loose a whole week of productivity, unless we are compensated .
2. Klinsic's fulfilled all of the requirements, that were forced upon them, by Unfair Work Ombudsman.
3. We will not be destroyed by Unfair Legal System.
Please consult with all parties prior to setting a Hearing date.
Kind Regards
John Klinsic
From annexure “EH-17” to the Hayes Affidavit of Service, I can see that the Court forwarded that email to the applicant.
On 15 July 2022, the applicant wrote to the second respondent to request that he not correspond ex parte with the Court but also to provide him with relevant links to apply for the matter to be heard by some electronic means given his indication that he was not going to attend the hearing in person.
No formal adjournment application has been made by or for the respondents and no request has been made to the Court for the matter to be heard electronically by the respondents in a formal sense despite receipt of the correspondence on 15 July 2022.
The matter was listed before me at 9.30am this morning at which time the respondents were not present. I had the matter called outside the courtroom at 9.35am when I ascended the bench and there was also no appearance at that stage. The time is now 10.07am and there is still no appearance by or for the respondents.
From the 31 May 2022 orders, the face of the application in a proceeding itself, and annexures “EH-16” and “EH-17” to the Hayes Affidavit of Service, I am satisfied that the respondents are aware of today’s hearing from a number of sources and methods and have, for whatever reason, chosen not to attend.
In terms of engagement with the applicant, as set out in the Hayes Affidavit, there has been sporadic engagement between the second respondent and the applicant and there have been a number of rectification payments which satisfy the outstanding amounts to the employee directly in respect of the compliance notice as adjusted. However, as noted previously, there still remain outstanding superannuation payments to be paid in respect of the employee.
It is open to infer that the respondents take the view that, having engaged in the rectification payments in relation to the employee, their work here is somehow done and perhaps there was a hope that the remainder of the proceedings would simply go away. However, the state of affairs is not so simple.
In terms of defaults by the respondents, the following defaults are objectively extant. The respondents have relevantly failed to give an address for service pursuant to rr 6.01 and 9.04 of the Rules. While a Notice of Address for Service was filed by the solicitor who briefly represented them on 29 April 2022, the solicitor’s services appear to have ceased and also potentially have been terminated by the clients in mid-May 2022.
Part 9 of the Rules provides for the circumstances and manner in which a lawyer withdraws their representation in relation to the proceedings. In circumstances where the lawyer withdraws and a new lawyer is not appointed, these circumstances are dealt with by r 9.03 of the Rules. In the event that the lawyer wishes to withdraw their services, they are required to serve a Notice of Intention to Withdraw on the party and then, in not less than seven days, they may then, thereafter, file a notice of ceasing or a Notice of Withdrawal without the leave of the Court. That did not occur in this case. However, as I note, it does appear that the services were terminated by the client.
In those circumstances, the second respondent ought to have indicated that the lawyer’s services were no longer being utilised by filing a Notice of Address for Service for the purposes of providing an address for service under r 6.01(1) of the Rules. However, in respect of the first respondent, pursuant to r 9.04 of the Rules, it being a corporation, another lawyer was required to be appointed and this did not occur.
Rule 9.04 of the Rules provides that, except as provided under an Act or Regulations, or with the leave of the Court, a corporation may not start or carry on proceedings otherwise than by a lawyer. No application has ever been made in respect of the first respondent seeking the Court’s leave to proceed without legal representation.
By the time the matter came before me on 31 May 2022, on the understanding that the solicitor’s services had been terminated and so that the proceeding could proceed in an orderly fashion, I made orders for the method by which the respondents could be served pending them rectifying the lack of an address for service which, at least by r 6.01(1) of the Rules, is mandatory.
There has since been no compliance with that order despite the fact that I can see from the Hayes Affidavit there have been many reminders to the respondents that they must so comply. The failure to provide an address for service before the time by which it is to be given is an express default under the Rules: see r 13.04(2)(b)(i) of the Rules. That is also a default for the purposes of r 13.04(b)(iv) of the Rules, namely, to file and serve a document in accordance with the Rules, and a failure to comply with an order of the Court for the purposes of r 13.04(2)(b)(iii) and also, arguably, to defend the proceeding with due diligence for the purposes of r 13.04(2)(b)(vii) of the Rules.
I also find the following matters to constitute default:
(a)the respondents’ joint failure to file and serve a Response to the application within 28 days after service of the application in accordance with r 4.03(3) of the Rules, which is a default for the purposes of rr 13.04(2)(b)(ii), (iii) and (iv) of the Rules;
(b)the failure of the first respondent to comply with orders 1 and 4 which I made on 31 May 2022, which is a default for the purposes of rr 13.04(2)(b)(ii), (iii) and (iv) of the Rules;
(c)the failure of the second respondent to comply with orders 2 and 4, which I made on 31 May 2022, which is a default for the purposes of rr 13.04(2)(b)(ii), (iii) and (iv) of the Rules; and
(d)that the aforementioned defaults individually and cumulatively constitute a failure to defend the proceeding with due diligence which is, in itself, a default pursuant to the Rules: see r 13.04(2)(b)(vii) of the Rules.
On the basis of the matters I have just set out, I find the respondents to be in default for the purposes of r 13.05 of the Rules.
In relation to the entitlement to relief, the facts summarised above, and which have been taken from the Statement of Claim, give rise to contraventions of the FW Act by the respondents as pleaded in the Statement of Claim notwithstanding that some payments have been made which would satisfy parts of paragraph [18(b)] of the Statement of Claim.
The Court has power to make orders it considers appropriate if it is satisfied of a contravention under the FW Act including declarations pursuant to s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), remedial and compensatory orders, pursuant to s 545 of the FW Act and also pecuniary penalties pursuant to s 546 of the FW Act: see also Australian Building and Construction Commissioner v CFMEU (2018) 262 CLR 157.
The Court’s power to make declarations also involves a wide discretion: ACCC v Yellow Page (No 2). The Court is empowered to make declarations based on admissions which can be taken to have been made consequent upon a default: see Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 and ACCC v Yellow Page (No 2), in particular, if the case involves issues of public interest such as enforcing compliance of the terms and conditions of employment.
On the basis of the parts of the Statement of Claim which deal with the issuance of the compliance notice consequent upon the investigation, I am satisfied that the applicant has standing to bring the proceeding. On the basis of the matters set out in the Statement of Claim, the applicant says that it has an entitlement to the relief sought, having made out that case for relief as well as pursuant to r 13.05(2)(c).
I take the view that there is utility in making the orders sought and also in making the declarations sought by the applicant and that there is a public interest in so doing: see ACCC v Yellow Page (No 2).
By orders 3(b) to (g) sought by the application in a proceeding, the applicant requests a separate hearing in respect of penalty together with consequential orders for the service of submissions and evidence in that regard. I am of the view that this is a sensible course and, accordingly, I will also make orders to that effect.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 4 August 2022
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