Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd

The proceedings were brought by the Fair Work Ombudsman against Mobile Food Vans & Trucks Pty Ltd and its manager, Yener Gelgel. The Ombudsman alleged that the company contravened section 716(5) of the *Fair Work Act 2009* (Cth) by failing to comply with a compliance notice issued by a Fair Work Inspector. This notice required the company to calculate and rectify underpayments to an employee, Mr Nilarumpar Gadjira, and provide evidence of compliance. The Ombudsman further alleged that Mr Gelgel was involved in the company's non-compliance within the meaning of section 550 of the Act, and therefore also contravened section 716(5).

The court was required to determine whether to grant default judgment against both respondents. This arose because neither the company nor Mr Gelgel had filed a notice of address for service, a response, or a defence, nor had they otherwise defended the proceedings with due diligence, despite being served with the originating application and statement of claim and subsequent court orders. The legal issue was whether the applicant had established an entitlement to the relief sought on the face of the statement of claim, as required for default judgment under rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).

The court reasoned that an application for default judgment under rule 13.03B(2)(c) is generally determined on the facts pleaded in the statement of claim alone, without requiring further evidence, provided there is a basis for the relief sought. The court noted that the respondents had been on notice of the proceedings since November 2020 and had failed to comply with court orders, including those made on 16 February 2021, which had granted them further opportunities to file necessary documents. The court found that the respondents were in default as defined by rule 13.03A(2) of the Rules. The court also considered that the declarations sought by the applicant served a public interest by marking disapproval of contravening conduct and educating employers about their obligations.

The court made orders granting default judgment against both respondents. These orders included declarations that Mobile Food Vans & Trucks Pty Ltd contravened section 716(5) of the *Fair Work Act 2009* (Cth) by failing to comply with the compliance notice, and that Yener Gelgel was involved in that contravention. The declarations were based on deemed admissions arising from the respondents' default.