Fair Work Ombudsman v L.E.C Builders & Designers Pty Ltd
[2022] FedCFamC2G 96
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v L.E.C Builders & Designers Pty Ltd [2022] FedCFamC2G 96
File number(s): MLG 568 of 2021 Judgment of: JUDGE O'SULLIVAN Date of judgment: 16 February 2022 Catchwords: INDUSTRIAL LAW – Application for declarations and orders as a result of underpayments and breaches of applicable award – breach of a civil remedy provision – application for default judgment – default by first and second respondents – orders made on default by respondents. Legislation: Fair Work Act 2009 (Cth), ss.550, 545, 546, 547, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr.13.04, 13.05
Building and Construction Industry General On-site Award 2010Cases cited: Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626
Macquarie Bank Limited v Seagle [2005] FCA 1239
Macquarie Bank Limited v Seagle [2008] FCA 1417
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited [2006] FCA 1427
Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 16 February 2022 Place: Melbourne (via Microsoft Teams) Counsel for the Applicant: Ms Sears Solicitor for the Applicant: Fair Work Ombudsman Appearance for the First Respondent: No appearance Appearance for the Second Respondent: No appearance ORDERS
MLG 568 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: L.E.C BUILDERS & DESIGNERS PTY LTD
First Respondent
LUKE JOHN ELLIOT
Second Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to Rules 13.05(2)(c) and 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Law) Rules 2021 (‘the Rules’), the applicant have leave to proceed on an undefended basis for default judgment this day.
THE COURT DECLARES THAT:
2.Upon the admissions which the Respondents are taken to have made, consequent upon default by the Respondents pursuant to Rule 13.04(2) of the Rules that:
(a)the First Respondent contravened section 716(5) of the Fair Work Act 2009 (‘the FW Act’) by failing to comply with the Compliance Notice dated 12 December 2020; and
(b)the Second Respondent was involved, within the meaning of section 550(2)(c) of the FW Act, in the First Respondent’s contravention of section 716(5) of the FW Act by failing to comply with the Compliance Notice.
THE COURT ORDERS THAT:
3.Pursuant to s.545(1) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice within 28 days of this order, by:
(a)calculating and paying to Brian Wilson (Employee) the outstanding entitlements it was required to pay under the Compliance Notice (‘Outstanding Entitlements’);
(b)calculating and paying to the chosen Superannuation Fund of the Employee the additional superannuation contributions it was required to pay under the Compliance Notice;
(c)preparing and producing to the Applicant a schedule outlining its calculation of the Outstanding Entitlements and additional superannuation contributions; and
(d)producing to the Applicant evidence that the Outstanding Entitlements and superannuation contributions were paid as required in subparagraphs (a) and (b) above.
4.Pursuant to section 547(2) of the FW Act that the First Respondent pay interest, within 28 days of this order:
(a)to the Employee on the amounts required to be paid in accordance with paragraph 3(a) above;
(b)to the Employee’s chosen Superannuation Fund on the amounts required to be paid in accordance with paragraph 3(b) above.
5.The applicant serve a copy of these orders within 7 days:
(a)on the first respondent by posting it to the first respondent at its registered office and principal place of business;
(b)on the second respondent by email to [email protected]
6.The matter is adjourned to 13 May 2022 commencing at 10.00am at the Federal Circuit and Family Court of Australia in Melbourne for a further hearing in respect of the Applicant’s claim for penalties to be imposed on the Respondents for the contraventions declared at paragraph 2 above and;
(a)evidence in chief on the question of penalty be by way of affidavit;
(b)the Applicant file and serve evidence and submissions relating to penalty by no later than 35 days prior to the date of the hearing;
(c)the Respondents file and serve evidence and submissions relating to penalty no later than 21 days prior to the date of the hearing.
7.The Applicant have liberty to apply on seven days’ notice in the event that any of the above orders are not complied with.
8.In the event that the Respondents fail to comply with order 6(c) then the penalty hearing listed on 13 May 2022 will be vacated and the issue of the appropriate penalty will be dealt with on the papers in Chambers.
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).
REASONS FOR JUDGMENT
INTRODUCTION
On 29 March 2021, the Fair Work Ombudsman (‘the applicant’) commenced proceedings against L.E.C Builders and Designers Pty Ltd (‘the first respondent’) and Luke John Elliot (‘the second respondent’).
By application and statement of claim filed on 29 March 2021 the applicant sought declarations the first respondent had contravened s.716 of the Fair Work Act 2009 (Cth) (‘the FW Act’) and that the second respondent was involved in that contravention within the meaning of s.550(2)(c) of the FW Act. The applicant also sought a number of orders, under s.545, s.546 and s.547 of the FW Act, against the respondents including that the Court impose a pecuniary penalty on them for the alleged contraventions.
The application and the statement of claim were served on the respondents on 19 April 2021. When the proceedings came before the Court for the first time on 30 July 2021, the following orders were made (when all parties were before the Court):
1.The Respondents file and serve Notices of Address for Service on or before 6 August 2021.
2.The Respondents file and serve Responses and/or Defences on or before 13 August 2021.
3.The Applicant file any Reply on or before 20 August 2021.
4.In the event that order 2 is not complied with, the Applicant file and serve any application for default judgment on or before 27 August 2021.
5.The matter be adjourned to 12 November 2021 at 10.00 am for directions at the Federal Circuit Court of Australia at Melbourne.
6.The parties have liberty to apply.
As matters transpired the respondents did not comply with orders 1 and 2 above. However, the applicant failed to file an application for default before the time provided for in those orders. Accordingly, on 29 October 2021, the parties were advised that the date of 12 November 2021 would be vacated, the matter would be relisted to 16 February 2022 and any interlocutory application that may be filed would be made returnable on the adjourned date.
Later the same day the applicant filed an application in a proceeding under Chapter 1, Part 4, Division 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the GFL Rules’) for default judgment supported by an affidavit of Maddison Grace Sears, a lawyer from the applicant affirmed on 28 October 2021.
The applicant’s application in a proceeding was made returnable by the Registry on 16 February 2022 and all parties were advised on 13 December 2021 and again on 7 February 2022 by email of this and that in the event that either of the respondents failed to appear, the matter could proceed in their absence.
BACKGROUND
Before turning to the hearing on 16 February 2022, it is timely to set out the factual background in the proceedings.
In June 2020, the applicant, through one of its inspectors, commenced an investigation into the first respondent’s compliance with the FW Act and associated industrial instruments. As a result of that investigation, the Fair Work Inspector formed the belief that Mr Brian Wilson who worked for the first respondent between May 2019 and June 2020 had been underpaid his entitlements under the Building and Construction Industry General On-site Award 2010.
In December 2020, the applicant caused to be issued a compliance notice under s.716 of the FW Act to the first respondent. There was no compliance by the first respondent with that notice (which the second respondent, as the sole director of the first respondent, was aware of). Accordingly, the applicant subsequently commenced the proceedings referred to earlier, making the allegations against the respondents as outlined above.
THE ORDERS SOUGHT BY THE APPLICANT
In the application in a proceeding filed on 29 October 2021, the applicant sought the following orders:
1.An order that default judgment be entered against the Respondents pursuant to Rule 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Law) Rules 2021 (FCFCOA Rules).
2.Upon the admissions which the Respondents are taken to have made, consequent upon default by the Respondents pursuant to Rule 13.04(2) of the FCFCOA Rules, declarations that:
(a)the First Respondent contravened section 716(5) of the Fair Work Act 2009 (FW Act) by failing to comply with the Compliance Notice dated 12 December 2020; and
(b)the Second Respondent was involved, within the meaning of section 550(2)(c) of the FW Act, in the First Respondent’s contravention of section 716(5) of the FW Act by failing to comply with the Compliance Notice.
3.An order pursuant to section 545(1) of the FW Act that the First Respondent take the steps that were required by the Compliance Notice within 28 days of this order, by:
(a)calculating and paying to Brian Wilson (Employee) the outstanding entitlements it was required to pay under the Compliance Notice (Outstanding Entitlements);
(b)calculating and paying to the chosen Superannuation Fund of the Employee the additional superannuation contributions it was required to pay under the Compliance Notice;
(c)preparing and producing to the Applicant a schedule outlining its calculation of the Outstanding Entitlements and additional superannuation contributions; and
(d)producing to the Applicant evidence that the Outstanding Entitlements and superannuation contributions were paid as required in subparagraphs (a) and (b) above.
4.An order pursuant to section 547(2) of the FW Act that the First Respondent pay interest, within 28 days of this order:
(a)to the Employee on the amounts required to be paid in accordance with paragraph 3(a) above;
(b)to the Employee’s chosen Superannuation Fund on the amounts required to be paid in accordance with paragraph 3(b) above.
5.An order pursuant to section 546(1) of the FW Act that within 28 days of this order, the First Respondent pay a pecuniary penalty to the Commonwealth for the contravention declared at paragraph 2(a) above.
6.An order pursuant to section 546(1) of the FW Act that within 28 days of this order, the Second Respondent pay a pecuniary penalty to the Commonwealth for the contravention declared at paragraph 2(b) above.
7.An order that the Applicant have liberty to apply on seven days’ notice in the event that any of the above orders are not complied with; and
8.Such further order or orders as the Court considers appropriate.
The affidavit of Ms Sears filed in support of the application in a proceeding for default judgment set out the various attempts that the applicant had made to engage the respondents in the proceedings:
1. I am a lawyer employed by the Office of the Fair Work Ombudsman (FWO).
2. I am authorised to make this affidavit on the Applicant’s behalf.
3.I have had primary carriage of this matter on behalf of the Applicant since on or around 15 February 2021.
4.Except where I say otherwise, I make this affidavit from my knowledge and from reference to the FWO’s files. Where I make a statement based on information provided to me by others, I believe that information to be true and correct to the best of my knowledge, information and belief.
Contact details for the Respondents
5.The mobile phone number I have used to contact the Second Respondent, Mr Elliot, during the course of this proceeding is 0418354431. Mr Elliot spoke to other employees of the FWO on this number during the course of the investigation that resulted in this proceeding. I also spoke to Mr Elliot on this mobile number on 29 July 2021, after the commencement of this proceeding.
6.On the occasions referred to in paragraph 15 below where I called Mr Elliot’s mobile number and went to voicemail, the voicemail message contained words to the effect: “Hi this is Luke, please leave a message”.
7.The email address I have used to contact Mr Elliot during the course of this proceeding is ‘[email protected]’. Mr Elliot communicated with other employees of the FWO from this address during the investigation. I received communications from Mr Elliot at this email prior to and after the commencement of these proceedings.
Directions Hearing and Orders
8.At the directions hearing in this matter on 30 June 2021, the honourable Judge O’Sullivan made orders (Orders) including:
(a)the Respondents file and serve Notices of Address for Service on or before 6 August 2021; and
(b)the Respondents file and serve Responses and/or Defences on or before 13 August 2021.
9.On 11 August 2021, I sent an email to Mr Elliot attaching a sealed copy of the Orders. The email, amongst other things, reminded Mr Elliot of the requirement to file and serve Notices of Address for Service as well as Responses and/or Defences on behalf of the Respondents, in accordance with the Orders. Annexed and marked ‘MGS-1’ is a copy of my email correspondence (without attachments) to Mr Elliot dated 11 August 2021.
10.On 12 August 2021, I received an email from Mr Elliot in which he stated, “I will get a defence back to you tomorrow”. Annexed and marked ‘MGS-2’ is a copy of the email correspondence sent by Mr Elliot dated 12 August 2021.
11.On 13 August 2021, I received an email from Mr Elliot, requesting a copy of the Court’s defence and response forms. Annexed and marked ‘MGS-3’ is a copy of the email correspondence sent by Mr Elliot dated 13 August 2021.
12.On the same date, I sent an email to Mr Elliot and attached copies of the relevant Federal Circuit and Family Law Court forms. Annexed and marked ‘MGS-4’ is a copy of my email correspondence (excluding attachments) to Mr Elliot dated 13 August 2021.
13.On 14 August 2021, Mr Elliot forwarded to me an email that he appeared to have sent to the email address ‘[email protected]’ on 13 August 2021. Attached to Mr Elliot’s email were photographs of a Notice of Address for Service, Response and Defence that had been completed on behalf of the Respondents. When I review the attachments, they were blurry and incomplete. Annexed and marked ‘MGS-5’ is a copy of the email correspondence and attachments sent by Mr Elliot dated 14 August 2021.
14.Following receipt of Mr Elliot’s 14 August email correspondence, I conducted a search on the Commonwealth Courts Portal and confirmed that no documents had been processed or electronically filed on the system.
Further attempts to contact the Respondents
15.Between 25 August 2021 and 8 October 2021, I attempted to contact Mr Elliot on the following occasions:
(a)On 25 August 2021, I telephoned Mr Elliot on his mobile number and left a voicemail message with words to the following effect: “this is Maddison from the FWO, I am calling you regarding the L.E.C. Builders court matter and the documents you sent me. Please call me back as soon as possible on 02 8293 4631”;
(b)On 26 August 2021, I telephoned Mr Elliot on his mobile number and left a voicemail message with words to the following effect: “this is Maddison from the FWO, I am calling you regarding the L.E.C. Builders court matter. Please call me back as soon as possible on 02 8293 4631”;
(c)On 30 August 2021, I sent an email to Mr Elliot which stated, amongst other things, that there is no record of the court documents being received and accepted for filing by the Court;
(d)On 14 September 2021, I telephoned Mr Elliot on his mobile number and left a voicemail message with words to the following effect: “this is Maddison from the FWO calling about the L.E.C. Builders matter. I’m calling to follow up on my email that I sent a few weeks ago. Could you please return my call as soon as possible on 02 8293 4631”;
(e)On 20 September 2021, I telephoned Mr Elliot on his mobile number and left a voicemail message with words to the following effect: “this is Maddison from the FWO, I am calling you regarding the L.E.C. Builders court matter. Please call me back as soon as possible on 02 8293 4631”; and
(f)On 8 October 2021, I sent an email to Mr Elliot, which requested that the Respondents provide a response to my correspondence by close of business on 15 October 2021.
Annexed and marked ‘MGS-6’ are copies of my email correspondence to and file notes relating to telephone calls to Mr Elliot between 25 August 2021 and 8 October 2021.
16.I did not receive a response to any of the communications set out in paragraph 15 above.
17. As at the date of this Affidavit:
(a)The Respondents have not filed Notices of Address for Service by 6 August 2021 in accordance with the Orders, or at all;
(b)The Respondents have not filed Responses and/or Defences by 13 August 2021 in accordance with the Orders, or at all; and
(c)Mr Elliot has not been in contact with the Applicant since 14 August 2021. (emphasis added)
The applicant also relied on the affidavit of Ms Sears filed on 10 February 2022 which sets out the applicant’s attempts to secure compliance by the respondents with the previous orders, reminded the respondents that they had not complied with the Court orders and that the matter was in Court today. It says the following:
1.I am a lawyer employed by the Office of the Fair Work Ombudsman (FWO).
2.I am authorised to make this affidavit on the Applicant's behalf. I previously made an affidavit in this matter, which was affirmed on 28 October 2021.
3.I have had primary carriage of this matter on behalf of the Applicant since on or around 15 February 2021.
4.Except where I say otherwise, I make this affidavit from my knowledge and from reference to the FWO's files. Where I make a statement based on information provided to me by others, I believe that information to be true and correct to the best of my knowledge, information and belief.
Contact details for the Respondents
5.I refer to paragraph 5 of my affidavit dated 28 October 2021. The mobile phone number I have used to contact the Second Respondent, Mr Elliot, during the course of this proceeding is 0418354431.
6.I refer to paragraph 7 of my affidavit dated 28 October 2021. The email address I have used to contact Mr Elliot during the course of this proceeding is '[email protected]'.
Further attempts to contact the Respondents
7.Between 2 November 2021 and 8 February 2022, I attempted to contact Mr Elliot on the following occasions:
(a)On 2 November 2021, I sent an email to Mr Elliot, which stated that the proceedings had been relisted to 16 February 2022at 10.30AM and forwarded a copy of the email correspondence sent to the Applicant on behalf of the Chambers of Judge O'Sullivan;
(b)On 3 November 2021, I sent an email to Mr Elliot attaching copies of the Applicant's application for default judgment, the affidavit in support as well as a cover letter dated 3 November 2021;
(c)On 3 December 2021, I sent a letter to Mr Elliot by email stating, amongst other things, that he and the First Respondent have failed to file Response and/or Defence, as required by the Court's orders dated 30 July 2021. The FWO stated that he should make arrangements for Responses and/or Defence to be properly filed to avoid potential order being made in these proceedings and recommended that he seek independent legal advice;
(d)On 19 January 2022, I sent a letter to Mr Elliot by email stating, amongst other things, that he and the First Respondent had still failed to file Responses and/or Defence so the Court may give judgment and make orders against Respondents; and
(e)On 8 February 2022, I telephoned Mr Elliot on his mobile number and left a voicemail message with words to the following effect: "this is Maddison from the FWO, I am calling you regarding the L.E.C. Builders court matter, which is listed next Wednesday 16 February 2022. Please call me back as soon as possible on 02 8293 4631".
Annexed and marked 'MGS-7' are copies of my email correspondence to and file notes relating to telephone calls to Mr Elliot between 2 November 2021 and 8 Februc;1ry 2022.
8.I did not receive a response to any of the communications set out in paragraph 7 above.
On 10 February 2022, the applicant also filed an affidavit of David Holland, a process server, which provided proof of service of the application in a proceeding on the second respondent.
THE HEARING
Today, when the matter was called via Microsoft Teams, Ms Sears, Solicitor, appeared on behalf of the applicant and there was no appearance by or on behalf of the first and second respondents.
THE APPLICANT’S SUBMISSIONS ON DEFAULT JUDGMENT
Ms Sears told the Court that given the above, she was instructed to press the Court to deal with the default judgment application. Ms Sears identified the material relied on and made concise submissions (by reference to the above material) in support of the orders set out in that application.
RELEVANT PROVISIONS OF THE RULES
The applicant in the application in a proceeding applies under r.13.05 of the GFL Rules for default judgment against the respondents.
Subrule 13.05(2) of the GFL Rules applies to a respondent who “is in default”. Under r.13.04(2) of the GFL Rules a respondent is in default if the respondent has not satisfied the applicant’s claim, and the respondent has failed to do one or more of the things identified in r.13.04(2)(b) of the GFL Rules. The things identified in r.13.04(2)(b) of the GFL Rules that are relevant to the application before me is the failure to attend Court, the failure to file a response or defence before the time for doing so has expired, comply with a Court order, and the failure to defend the proceeding with due diligence.
When a respondent is in default, or when a respondent is absent from a hearing, the Court may make one of the orders set out in r.13.05(2) of the GFL Rules. Relevant to the application before me is r.13.05(2)(c) of the GFL Rules which provides that the Court may:
..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 . . .
Rules 13.04 and 13.05 of the GFL Rules were adapted from, and are substantially similar to, the rules contained in O35A of the now repealed Federal Court Rules 1979 (‘the old FC Rules’); and r.13.05(2)(c) of the GFL Rules is almost identical to O35A, r.3(2)(c) of the old FC Rules. There are a number of principles that have been formulated in relation to O35A, r.(3)(2) of the old FC Rules which apply to r.13.05 of the GFL Rules. These include the following:
(a)first, r.13.05(2)(c) of the GFL Rules “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”.[1]
(b)second, before the Court may make an order under r.13.05(2)(c) of the GFL Rules it must be satisfied that the document, which the applicant has filed with the application, is in fact a “statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading.
(c)third, it follows from (b) that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”.[2]
(d)fourth, although r.13.05(2)(c) of the GFL Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought. It has been confirmed that it is permissible on an application for an order under O35A r 3(2)(c) of the old FC Rules to adduce evidence relevant to relief. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited, Kiefel J (as her Honour then was) said:[3]
It may be accepted that some further affidavit material may be accepted by the Court in relation to the relief sought….Evidence which would alter the pleaded case should not be admitted….
Regard should not be had to evidence of facts which could have been, but were not, pleaded concerning the conduct of the respondents.
(e)Finally, the Court retains a discretion not to make an order under r.13.05(2)(c) of the GFL Rules even if the preconditions for making an order are satisfied.[4]
This Court’s power to make an order under r.13.05(2)(c) of the GFL Rules is discretionary. As Flick J noted in Speedo Holdings BV v Evans (No 2), “[o]ther than necessarily recognising that the power must be exercised with caution, there is little detailed consideration as to how the discretion must otherwise be exercised”.[5]
WHAT ORDERS SHOULD BE MADE?
On the material before the Court the applicant has made a basis for the Court to grant default judgment. The proceedings issued by the applicant are proceedings seeking that the Court deal with the respondents for failing to comply with a compliance notice. A compliance notice is provided for in s.716 of the FW Act. The issuing of a compliance notice is a power given to the Fair Work Inspector which is designed to be a method by which non-compliance with obligations imposed by the FW Act can be enforced as an alternative to Court proceedings. Sadly, in this case the respondents have failed to heed the warning such notices contain.
The respondents have not satisfied the applicant’s claim. The respondents have not filed a notice of address for service, a response or affidavit, as required. The respondents have not complied with an order of this Court and, having regard to the provisions of the GFL Rules referred to earlier, the Court has the authority to give judgment or make any other order against both respondents. Given the defaults by the respondents and the material that the applicant has filed, I am satisfied that, pursuant to the relevant sections of the GFL Rules, that I am able to proceed with the application in a case for default judgment this day.
On the face of the material the applicant has filed that I have referred to, I am satisfied that the applicant has made out a sufficient basis on the face of the statement of claim for the relief sought. I am satisfied that I am able to make the requisite declarations in relation to the contraventions by both respondents of the FW Act. Section 545 of the FW Act confers on the Court broad powers to grant relief to a person(s) who have suffered as a result of a contravention of a civil remedy provision. By virtue of s 545(2) of the FW Act, the Court has the power to order a payment for compensation for loss that a person has suffered because of a contravention, as well as interest on that amount, which is provided for in s 547.
CONCLUSION
Therefore, and for the reasons set out above, I will make the requisite declarations that the respondents have contravened the relevant provisions of the FW Act referred to in the statement of claim and the necessary consequential orders. I require the applicant to serve the respondents with a copy of the orders made this day and I otherwise fix the matter for a penalty hearing, with the directions for that purpose.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 16 February 2022
[1] Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626, at [9] (Gordon J)
[2] Macquarie Bank Limited v Seagle [2005] FCA 1239, at [24] (Conti J); Macquarie Bank Limited v Seagle [2008] FCA 1417, at [20] (Jagot J)
[3] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited [2006] FCA 1427, at [50] and [51]
[4] See the authorities decided under O 35A of the Old FC Rules referred to by Flick J in Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227, at [20]
[5] Speedo Holdings BV v Evans (No 2) [2011] FCA 1227, at [21]. His Honour was speaking of r 5.23 of the Federal Court Rules 2011 (Cth), the equivalent rule to r 13.05(2) of the GFL Rules.
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