Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2)
[2025] FedCFamC2G 176
•14 February 2025
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 for the performance of work.
4.Upon admissions taken to have been made by reason of the Second Respondent’s default, declarations that the Second Respondent was involved, within the meaning of s 550(2) of the FW Act, in the contravention by the First Respondent of:
(a)s 716(5) of the FW Act declared at Order 3.a above;
(b)s 323(1)(a) of the FW Act declared at Order 3.b above.
THE COURT ORDERS THAT
5.Pursuant to s 545(1) of the FW Act, the First Respondent pay to the Applicant the amount of $3,610 being the loss suffered by reason of the unauthorised deductions made for ‘food/coffee/drinks’ between 18 October 2021 and 26 March 2023 in contravention of s 323 of the FW Act (Repayment).
6.Pursuant to s 545(2) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice within 28 days from the date of this order, by:
(a)calculating the outstanding entitlements it was required to pay to Mr Sidhu (Outstanding Entitlements) in respect of the contraventions identified in the Compliance Notice (Contraventions) (including any Repayment amounts ordered to be paid to the Applicant pursuant to Order 5 above;
(b)paying the amount of the Outstanding Entitlements to Mr Sidhu in respect of the Contraventions, excluding any Repayment amounts ordered to be paid to the Applicant pursuant to Order 5 above;
(c)calculating and paying superannuation contributions into Mr Sidhu’s nominated superannuation fund for any additional superannuation contributions (Outstanding Superannuation) it was required to pay under clause 22.1 of the Restaurant Industry Award 2020 (Award) and;
(d)preparing and producing to the Applicant, a schedule outlining its calculation of the Outstanding Entitlements and Outstanding Superannuation, and providing evidence to the Applicant that the Outstanding Entitlements and Outstanding Superannuation were paid as ordered in Order 6.b and Order 6.c above.
7.Pursuant to subsection 547(2) of the FW Act within 28 days of this order, the First Respondent pay interest calculated in accordance with the applicable pre-judgment interest rates prescribed by the Federal Court of Australia to:
(a)the Applicant on the Repayment amount ordered to be paid pursuant to Order 5 above; and
(b)Mr Sidhu on the amount ordered to be paid pursuant to Order 6.b above.
8.The Applicant distribute to Mr Sidhu the amounts paid to it pursuant to Order 5 and Order 7.b above.
9.The Applicant file and serve written submissions, and any affidavit material on which it intends to rely, in respect of the pecuniary penalties it seeks, within 21 days of this order.
10.The First and Second Respondents file and serve written submissions in response, and any affidavit material on which they intend to rely, within 14 days of the Applicant’s filing of its submissions.
11.In the event that the respondents fail to comply with order 9 then the penalty hearing listed on 16 April 2025 will be vacated and the issue of the appropriate penalty will proceed undefended and be dealt with on the papers in Chambers.
12.The Applicant serve the respondents by the same means as in the orders dated 13 November 2024.
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
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 [email protected] 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 [email protected].
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.
The respondents have not complied with Court orders to file a notice of address for service and file a response and defence. Undeterred by this, the applicant filed an application in a proceeding for default judgment supported by an affidavit Joseph Okraglik affirmed on 5 February 2025. In his affidavit Mr Okraglik deposed to inter alia serving the respondents with the orders of 13 November 2024, telling the respondents when they hadn’t complied that the applicant would be making the application for default judgment and receiving email correspondence from the second respondent as recently 19 & 20 December 2024. Notwithstanding all of that there has not been compliance by the respondents with the above orders. The application in a proceeding was made returnable by the Registry on 14 February 2025.
THE HEARING
Today, when the matter was called Mr Rawson Solicitor, appeared on behalf of the applicant and there was no appearance by or on behalf of the first and second respondents.
The Court is satisfied that the respondents were on notice of the fact of these proceedings, afforded ample opportunity to participate and to understand the consequences of their failure to do so. Accordingly, the hearing this day proceeded in the face of the further default of the respondent to appear and pursuant to r.13.06(1)(e) of the Rules.
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 . . .
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.
Finally, in Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 at [20], Anderson J observed that:
Default judgment may be entered where a party's participation in the proceedings is such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial in an acceptable period, or where non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the other party: Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 at 396 per Wilcox and Gummow JJ; see also, as a recent example, Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552 at [44] per O'Callaghan J.
ORDERS SOUGHT BY THE APPLICANT
In the application in a proceeding the applicant sought the following orders:
1.Pursuant to Rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, 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.
2.Upon admissions taken to have been made by reason of the First Respondent’s default, declarations that the First Respondent:
a.contravened s 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 for the performance of work.
3.Upon admissions taken to have been made by reason of the Second Respondent’s default, declarations that the Second Respondent was involved, within the meaning of s 550(2) of the FW Act, in the contravention by the First Respondent of:
a. s 716(5) of the FW Act declared at Order 2.a above
b. s 323(1)(a) of the FW Act declared at Order 2.b above.
4.Pursuant to s 545(1) of the FW Act, the First Respondent pay to the Applicant the amount of $3,610 being the loss suffered by reason of the unauthorised deductions made for ‘food/coffee/drinks’ between 18 October 2021 and 26 March 2023 in contravention of s 323 of the FW Act (Repayment).
5.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 from the date of this order, by:
a.calculating the outstanding entitlements it was required to pay to Mr Sidhu (Outstanding Entitlements) in respect of the contraventions identified in the Compliance Notice (Contraventions) (including any Repayment amounts ordered to be paid to the Applicant pursuant to Order 4 above)
b.paying the amount of the Outstanding Entitlements to Mr Sidhu in respect of the Contraventions, excluding any Repayment amounts ordered to be paid to the Applicant pursuant to Order 4 above
c.calculating and paying superannuation contributions into Mr Sidhu’s nominated superannuation fund for any additional superannuation contributions (Outstanding Superannuation) it was required to pay under clause 22.1 of the Restaurant Industry Award 2020 (Award) and
d.preparing and producing to the Applicant, a schedule outlining its calculation of the Outstanding Entitlements and Outstanding Superannuation, and providing evidence to the Applicant that the Outstanding Entitlements and Outstanding Superannuation were paid as ordered in Order 5.b and Order 5.c above.
6.Pursuant to subsection 547(2) of the FW Act within 28 days of this order, the First Respondent pay interest calculated in accordance with the applicable pre-judgment interest rates prescribed by the Federal Court of Australia to:
a.the Applicant on the Repayment amount ordered to be paid pursuant to Order 4 above; and
b.Mr Sidhu on the amount ordered to be paid pursuant to Order 5.b above.
7.The Applicant distribute to Mr Sidhu the amounts paid to it pursuant to Order 4 and Order 6.b above.
8.The Applicant file and serve written submissions, and any affidavit material on which it intends to rely, in respect of the pecuniary penalties it seeks, within 21 days of this order.
9.The First and Second Respondents file and serve written submissions in response, and any affidavit material on which they intend to rely, within 14 days of the Applicant’s filing of its submissions.
10.Within 14 days of the Respondents filing their submissions, the Applicant file and serve any reply.
11.The matter be listed for hearing as to the imposition of any pecuniary penalties, no sooner than 14 days after the Applicant files its reply.
12. Such further orders as the Court considers appropriate.
WHAT ORDERS SHOULD BE MADE?
On the material before the Court the applicant has made out a basis for the Court to grant default judgment. 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 proceeding for default judgment this day.
The proceedings issued by the applicant are proceedings seeking that the Court deal with the respondents for failing to comply with a compliance notice and making unauthorised deductions such that employee wasn’t paid in full for work. 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. The respondents have failed to heed the warning such notices contain and have also breached s.323.
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. In particular I note the matters set out in the statement of claim, give rise to liability on the first respondent’s part and also the second respondent’s contraventions of ss. 323 & 716(5) of the FW Act by virtue in the latter’s case of his involvement, within the meaning of s 550(2) of the FW Act, in the first respondent’s contraventions.
Given the broad powers in section 545 of the FW Act conferred on the Court I am satisfied I can grant the relief sought as a result of a contravention of a civil remedy provision.
CONCLUSION
For these reasons the Court makes the declarations sought that the respondents has contravened the FW Act and the necessary consequential orders. I will require the applicant to serve the respondents with a copy of the orders made this day by the same means as set out in the orders of 13 November 2024 and I otherwise fix the matter for a penalty hearing on 16 April 2025, with the directions for that purpose.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 14 February 2025
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