Fair Work Ombudsman v Lobos

Case [2022] FedCFamC2G 596

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Lobos [2022] FedCFamC2G 596

File number(s): SYG 504 of 2022
Judgment of: JUDGE GIVEN
Date of judgment: 15 July 2022
Catchwords: 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 Act2009 (Cth) ss 545, 546

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, 6.01, 13.04, 13.05, 13.06
Cases cited:

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433

Australian Building and Construction Commissioner & 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: 38
Date of hearing: 15 July 2022
Solicitor for the Applicant: Ms M Zhang of the Fair Work Ombudsman
The Respondents: No appearance

ORDERS

SYG 504 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

MARIANO EZEQUIEL LOBOS

First Respondent

JAMIE LOBOS

Second Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

15 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 the failure of:

(a)the Second Respondent to file a Notice of Address for Service as ordered or at all and pursuant to rule 13.04(2)(b)(i);

(b)each of the Respondents to file a Response as ordered or at all;

(c)each of the Respondents to file a Defence as ordered or at all;

(d)each of the Respondents to defend the proceeding with due diligence pursuant to rule 13.04(2)(b)(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 given to the First Respondent on 14 September 2021 (Compliance Notice) in respect of Kaleb Larkin (Employee); 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.Pursuant to section 545(1) of the FW Act that the First Respondent, within 28 days of this order, take the steps required by…

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AGLC
Fair Work Ombudsman v Lobos [2022] FedCFamC2G 596
Case
[2022] FedCFamC2G 596
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Fair Work Ombudsman initiated proceedings against Lobos, involving alleged contraventions of the Fair Work Act 2009. The Court was tasked with determining whether it could proceed with a default judgment in the absence of the respondents, despite the requirement for personal service of the originating documents. The case centred on whether the Court could exercise its discretion under Rule 13.06 of the Federal Circuit and Family Court of Australia Rules, given the respondents' absence from the hearing and their failure to comply with procedural orders.

The central issue was whether the Court could make a default judgment despite the respondents' non-appearance, and whether the applicant had effectively served the originating documents on the respondents. The Court had to consider the rules governing service of documents and the respondents' awareness of the proceedings, particularly in light of the email correspondence that had taken place. The Court also had to assess whether the respondents' absence and non-compliance with procedural orders justified the granting of a default judgment.

The Court found that the applicant had served the originating documents on the first respondent, and that the second respondent had constructive notice of the proceedings through email correspondence. The Court held that the non-appearance of the respondents and their failure to comply with procedural orders justified the granting of a default judgment. The Court emphasised that the decision to proceed with a default judgment was not solely based on the absence of the respondents but also on the substantive default claimed. The Court concluded that the applicant had satisfied the requirements for a default judgment, and the respondents' absence and non-compliance warranted such an order.

The Court ordered that judgment be entered in favour of the applicant and against the respondents for the relief claimed in the Statement of Claim, including pecuniary penalties and costs. The Court also directed that the applicant prepare and lodge a draft orders document within 14 days, to be served on the respondents.

Orders

Orders of the court

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Background

Background to the litigation

Rule 13.06 of the Rules provides that if a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.05(2). Notwithstanding the fact that there has been no appearance for the respondents today, the Court is empowered to proceed to make orders for default judgment in circumstances where the respondents are not present. However, I note that the applicant does not proceed simply on the basis that there is no appearance on behalf of the respondents, but, rather, in relation to the substantive default claimed.Background On 5 April 2022, the applicant commenced these proceedings against the respondents by an application and the Statement of Claim for alleged contraventions of the Act. On 29 April 2022, the matter was listed for a first Court date directions hearing before me, which was held using the Microsoft Teams platform due to ongoing COVID-19 precautions. On that occasion, there was no appearance for the first respondent. The second respondent appeared by audio, but not by video. The Affidavit of Gavin Bellamy made on 10 May 2022 deposes to having effected personal service on the first applicant of both the application and the Statement of Claim. By her attendance at the first Court date, I was equally satisfied that originating documents had come to the attention of the second respondent. Accordingly, I dispensed with the need to effect service on her. At the first Court date, I made orders which included that the respondents file and serve a Notice of Address for Service by 6 May 2022 and a Response and Defence by 27 May 2022, together with consequential orders for a Reply from the applicant. At the first Court date, the proceeding was relisted before me for further directions at 9.30 am on 10 June 2022. On 6 May 2022, the first respondent filed a Notice of Address for Service, but nothing else. No Notice of Address for Service was filed for the second respondent at that time or at any other time, including up to today. By that Notice of Address for Service, an email address was provided for the first respondent. That email address appears to belong to, or at least be in the name of, the second respondent and it is from that email address that all correspondence by email in this matter has gone between the respondents and the applicant. To the extent that the applicant has been corresponding with that email address, I am satisfied that all correspondence and service of any documents, therefore, has been properly effected on the first respondent by virtue of r 6.01(6) of the Rules. I am satisfied, also that, given that the email address appears to belong to the second respondent, and that she is, in fact, the correspondent from that email address, she has had constructive notice of those matters, even though the email address is not formally an address for service provided for her because of her own election to not file a Notice of Address for Service, despite twice being ordered to do so.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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