Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2) [2025] FedCFamC2G 176

File number(s): MLG 3155 of 2024
Judgment of: JUDGE O'SULLIVAN
Date of judgment: 14 February 2025 
Catchwords: INDUSTRIAL LAW – application for declarations and orders due to failure to cleave to compliance notice and in failing to make payment in full for the performance of work  – application to proceed undefended – default by first and second respondents – orders on default by respondents  
Legislation:

Fair Work Act 2009 (Cth) ss 323, 545, 546, s547 550(2), 716,

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.04(2), 13.05

Cases cited:

Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433

Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848

Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882

Luna Park v Bose [2006] FCA 94
Division: Division 2 General Federal Law
Number of paragraphs: 22
Date of hearing: 14 February 2025 
Place: Melbourne
Solicitor for the Applicant: Mr Rawson, Fair Work Ombudsman
Appearance for the First Respondent: No appearance
Appearance for the Second Respondent: No appearance

ORDERS

MLG 3155 of 2024

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

FAIR WORK OMBUDSMAN

Applicant
AND:

MONACO WILLOWS PTY LTD (ACN 006 816 333)

First Respondent

FRANCIS PLACENTINO

Second Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

14 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Pursuant to Rule 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.

2.Pursuant to Rule 13.05(2)(c) of the Rules, default judgment is entered against the First and Second Respondents by reason of their default pursuant to rule 13.04(2) by each of their failure to take each of the following steps:

(a)file and serve a notice of address for service as required by rule 6.01 of the Rules;

(b)file and serve a response and any defence within 28 days of service as required by rules 4.03(3) and 4.04(3)(a) of the Rules;

(c)comply with an order of the Court in the proceedings, being orders 4 AND 5 of the Court dated 13 November 2024;

(d)attend the directions hearing on 13 November 2024; and

(e)in light of the above, defend the proceedings with due diligence.

THE COURT DECLARES THAT:

3.Upon admissions taken to have been made by reason of the First Respondent’s default, declarations that the First Respondent:

(a)716(5) of the Fair Work Act 2009 (‘FW Act’) by failing to comply with the Compliance Notice dated 13 September 2023 given by Fair Work Inspector Tran pursuant to s 716(2) of the FW Act to the First Respondent (the Compliance Notice);

(b)contravened s 323(1)(a) of the FW Act by failing to pay Mr Gurjant Sidhu in full…

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Details
Case
[2025] FedCFamC2G 176
Decision Date

CaseChat Overview and Summary

In this case, the Fair Work Ombudsman filed a proceeding against Monaco Willows Pty Ltd and Francis Placentino, seeking declarations, orders, and pecuniary penalties due to alleged contraventions of the Fair Work Act 2009. The primary dispute revolves around the first respondent’s failure to comply with a compliance notice issued under the Fair Work Act and the subsequent underpayment of a former employee. The second respondent, as the sole director, is also alleged to have been involved in these contraventions. The Federal Circuit and Family Court of Australia is the forum for this legal battle.

The legal issues before the Court involved whether the applicant was entitled to the relief sought based on the facts pleaded in the statement of claim. The Court had to consider the principles governing default judgments and whether the applicant met the necessary threshold to be granted the relief. This included verifying that the elements of the alleged contraventions were adequately pleaded and whether the applicant was entitled to the relief on the face of the statement of claim. The Court was also required to determine whether it could permit limited further evidence without altering the case as pleaded.

The Court found that the applicant had sufficiently pleaded the facts in the statement of claim to warrant a default judgment. It concluded that the elements of the relevant civil wrongs were properly and discretely pleaded, and the applicant appeared entitled to the relief claimed. The Court exercised its discretion to grant the relief based on the statement of claim alone, without requiring further evidence from the applicant. The Court was satisfied that the applicant had a sufficient basis for the relief sought and that each element of the relevant civil wrong was properly pleaded. Consequently, the Court found in favour of the applicant and granted the relief as sought in the statement of claim.

In light of the Court's findings, it made orders for default judgment against the first and second respondents, declaring that they had contravened the Fair Work Act and that the applicant was entitled to the relief sought. The Court also ordered pecuniary penalties for the alleged contraventions. The specific details of the relief and penalties were not fully set out in the provided text but would be detailed in the Court's final orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before the Court is an application in a proceeding filed 5 February 2025 by the Fair Work Ombudsman (‘the applicant’) for default judgment against Monaco Willows Pty Ltd (ACN 006 816 333) (‘the first respondent’) and Francis Placentino (‘the second respondent’). Before dealing with the present application in greater detail it is convenient to briefly set out the background to the proceedings.BACKGROUND In mid-April 2023, the applicant commenced an investigation into the first respondent’s compliance with the Fair Work Act 2009 (Cth) (‘the FW Act’). As a result of that investigation, the applicant formed the belief that a former employee of the first respondent (who operated a café/bar trading as Tusk in the Melbourne suburb of Windsor) had been underpaid and therefore caused to be issued a compliance notice under s.716 of the FW Act. There was no compliance by the first respondent with that notice. In the face of this on 16 September 2024 the applicant commenced these proceedings. In its statement of claim the applicant sought declarations the first respondent had contravened s.716 and s323 of the FW Act and that the second respondent (the sole director) was involved in those contraventions within the meaning of s.550(2) of the FW Act. In the prayer for relief the applicant sought orders, under s.545, s546 and s.547 of the FW Act, along with pecuniary penalties for the alleged contraventions. After serving the first respondent with the initiating process in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the GFL Rules”) the applicant encountered difficulties personally serving the second respondent. The applicant filed an application in a proceeding on 7 November 2024 seeking orders dispensing with the requirement for personal service on the second respondent. On 13 November 2024, and for the reasons set out in Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218, the following orders were made:1.Pursuant to Rule 6.06(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’), the requirement for personal service on Francis Placentino (‘the Second Respondent’) pursuant to Rule 6.06(1) of the following documents be dispensed with:(a)the Originating Application filed in this matter on 17 September 2024; and(b) the Statement of Claim filed in this matter on 17 September 2024.2.That service of the Court Documents is taken to have been effected on the Second Respondent pursuant to rule 6.14(3) of the Rules by way of the email to the Second Respondent at fplacentino@bigpond.com on 28 October 2024.3.Until further order or such time that the Second Respondent identifies an address for service within an appropriate form filed with this Court, service of any documents may be effected on the Second Respondent pursuant to rule 6.14 of the Rules by emailing the documents to fplacentino@bigpond.com.4.The Respondents file and serve a Notice of Address for Service by 22 November 2024.5.The Respondents file and serve any Response and Defence by 13 December 2024.6.The Applicant file and serve any Reply by 20 December 2024.7.The proceeding be adjourned for directions in the Federal Circuit and Family Court of Australia at Melbourne on 14 February 2025 at 10.30 am.8.The parties have liberty to apply.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 . . .APPROACH TO DEFAULT JUDGMENT The principles in relation to default judgment have been summarised in Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882 at [16] – [18]. Orders for default judgment can be made pursuant to r 13.05(2)(c) if the Court is satisfied that there is a sufficient basis for the relief sought by the applicant’s statement of claim. The Court is not required to be satisfied by evidence as to the matters set out in the statement of claim: see Luna Park v Bose [2006] FCA 94 at [20] per Jacobson J, citing Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J. An application under r 13.05(2)(c) of the Rules is determined, on facts pleaded in the statement of claim alone. In Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882 it was noted:19. The principles relevant to the making of an order for default judgment have previously been summarised in, amongst other decisions, Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [19]–[26] per Flick J, Maylord Equity Management Pty Ltd v Parazelsus Ltd [2014] FCA 979 at [10]–[14] per Gleeson J and Ferraro v DBN Holdings Aust Pty Ltd T/As Sports Auto Group [2015] FCA 1127; 246 FCR 138 at [20] per Besanko J. The key principles may be summarised as follows:(a) the power afforded to the Court is discretionary. The discretion should generally be exercised with caution; (b) the discretionary power to enter a judgment by default is enlivened when an applicant makes application to the Court for an appropriate order. In the absence of such an application, the power cannot be invoked; (c) there is a difference in the terms by which the limits of the power conferred by former O 35A r 3(2)(c) are expressed and the wording of the current r 5.23(2)(c). Notwithstanding that difference in language, the requirement imposed is not that an applicant prove by way of evidence the claim which is sought to be advanced. The requirement is that the Court needs to be satisfied on the face of the Statement of Claim that the applicant is entitled to the relief claimed. The facts as alleged in the Statement of Claim are deemed to have been admitted by the respondent in default; (d) in order to be satisfied that an applicant is entitled to the relief claimed in the Statement of Claim, the Court needs to be satisfied that each element of the relevant civil wrong involved is properly and discretely pleaded in the Statement of Claim; and (e) in addition to the facts alleged in the Statement of Claim, the Court may permit recourse to limited further evidence. However, it may not admit evidence which would alter the case as pleaded.

Ratio Decidendi

Legal Principle Established

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