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

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: [2022] FedCFamC2G 622
Decision Date

CaseChat Overview and Summary

The case of Fair Work Ombudsman v Klinsic Constructions Pty Limited was heard in the Federal Circuit and Family Court of Australia (Division 2). The Fair Work Ombudsman, as the applicant, sought a default judgment against Klinsic Constructions Pty Limited and John Klinsic, the first and second respondents respectively, for alleged contraventions of the Fair Work Act 2009 (Cth). The primary legal issue was whether the court should grant the applicant's request for a default judgment based on the respondents' failure to comply with the court's rules and their non-appearance at the scheduled hearing. The court found that the respondents were indeed in default, as they had failed to provide an address for service, file a response, comply with previous court orders, and defend the proceeding with due diligence. Based on the respondents' defaults and the applicant's entitlement to relief, the court made several orders, including declaring the contraventions, directing the first respondent to take specific steps to rectify the non-compliance, and scheduling a separate hearing for determining civil pecuniary penalties.

In its judgment, the court emphasised the importance of following procedural rules and the consequences of failing to do so. The court also highlighted the public interest in enforcing compliance with employment laws and the Fair Work Act. The decision serves as a reminder for parties involved in legal proceedings to comply with court rules and orders to ensure the proper administration of justice. The case also demonstrates the court's willingness to grant default judgments in appropriate circumstances, particularly when there is a public interest in enforcing compliance with employment laws.

Orders