Fair Work Ombudsman v More Than Skin Pty Ltd
[2022] FedCFamC2G 1006
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v More Than Skin Pty Ltd [2022] FedCFamC2G 1006
File number(s): SYG 2344 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 14 November 2022 Catchwords: INDUSTRIAL LAW – 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) – failure to comply with Court orders – failure to file Notices of Address for Service – general unwillingness to cooperate or comply –respondents in default – applicant entitled to the relief sought Legislation: Fair Work Act 2009 (Cth) ss 536, 545, 547, 550, 716
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Fair Work Regulations2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.03, 6.01, 6.04, 9.04, 13.04, 13.05, 13.06
Cases cited: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
Australian Competition and Consumer Commission (ACCC) v Dateline Imports Pty Ltd (2014) 143 ALD 136
Australian Competition and Consumer Commission v Yellow Page Marketing BV and Anor (No 2) (2011) 195 FCR 1
Fair Work Ombudsman v IE Enterprises Proprietary Limited [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: 68 Date of hearing: 14 November 2022 Place: Sydney Solicitor for the Applicant: Australian Government Solicitor The Second Respondent: In person The First and Third Respondents: No appearance ORDERS
SYG 2344 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MORE THAN SKIN PTY LTD (ACN 135 402 345)
First Respondent
LILA STOJCEVSKI
Second Respondent
LUPCO STOJCEVSKI
Third Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
14 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to r 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:
(a)the respondents' failure to give an address for service pursuant to rr 6.01(1) and 9.04 of the Rules, and in contravention of orders of the Court made on each of:
(i)11 February 2022;
(ii)12 April 2022;
(iii)15 June 2022; and
(iv)12 August 2022.
(b)the respondents' failure to file and serve a response to the application within 28 days after service of the application in accordance with r 4.03(3) of the Rules;
(c)the respondents' failure to comply with an order of the Court in the proceeding, being order 4 made on 12 April 2022;
(d)the respondents' failure to comply with an order of the Court in the proceeding, being order 5 made on 15 April 2022; and
(e)in light of the above defaults, the respondents' failure to defend the proceeding with due diligence for the purposes of r 13.05(2)(c)(vii).
2.Upon the admissions which the respondents are taken to have made, consequent upon default pursuant to r 13.04(2) of the Rules, the Court declares that:
(a)the first respondent has contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with each of:
(i)the compliance notice dated 3 March 2021 relating to Ms Silva (the Silva Compliance Notice);
(ii)the compliance notice dated 22 April 2022 relating to Ms Effoudou (the Effoudou Compliance Notice); and
(iii)the compliance notice dated 20 May 2022 relating to Ms Monika (the Monika Compliance Notice); and
(b)the first respondent has contravened s 536(1) of the FW Act by failing to give pay slips one working day of paying an amount to Ms Effoudou and Ms Monika in relation to the performance of work, or at all.
(c)the second respondent was involved, within the meaning of s 550(2) of the FW Act, in the contraventions by the first respondent of s 716(5) of the FW Act (in respect of the Silva Compliance Notice and the Monika Compliance Notice) and s 536(1) of the FW Act declared in orders 2(a)(i), 2(a)(iii) and 2(b).
(d)the third respondent was involved, within the meaning of s 550(2) of the FW Act, in the contravention by the first respondent of s 716(5) of the FW Act (in relation to the Monika Compliance Notice) declared in order 2(a)(iii).
3.Pursuant to s 545(1) of the FW Act, the first respondent must take the steps required by each of the Silva Compliance Notice, the Effoudou Compliance Notice and the Monika Compliance Notice within 28 days from the date of this order, by:
(a)calculating and paying the outstanding amounts it was required to pay to Ms Silva, Ms Effoudou and Ms Monika in respect of each of the entitlements and for the periods specified in the Silva Compliance Notice, the Effoudou Compliance Notice and the Monika Compliance Notice;
(b)calculating and paying into each of Ms Silva, Ms Effoudou and Ms Monika's respectively nominated superannuation funds any additional superannuation contributions required to be paid on the outstanding entitlements ordered in order 3(a) as required by cl 22.2 of the Restaurant Industry Award 2022; and
(c)preparing and producing to the applicant, a schedule outlining its calculations of the outstanding entitlements and additional superannuation contributions required to be paid to Ms Silva, Ms Effoudou and Ms Monika, and providing proof that the outstanding entitlements and additional superannuation contributions were rectified as set out in orders 3(a) and 3(b) above.
4.Pursuant to s 547(2) of the FW Act the first respondent must pay to each of Ms Silva, Ms Effoudou and Ms Monika interest on the amounts owed to them pursuant to order 3(a) above within 28 days of this order.
5.The matter is adjourned to 10.15am on 22 February 2023 before Judge Given for further hearing in respect of civil pecuniary penalties sought by the applicant in respect of the contraventions declared at order 2 above.
6.The first respondent must appoint a legal representative and file a Notice of Address for Service in accordance with rr 6.01 and 9.04 of the Rules by 28 November 2022.
7.The second and third respondents must file and serve Notices of Address for Service which comply with r 6.01 of the Rules by 28 November 2022.
8.Until such time as orders 6 and 7 are complied with, pursuant to r 6.04(a) of the Rules, service upon each of the first, second and third respondents may be effected by sending a copy of the documents to each of the following email addresses:
(b)[email protected]; and
9.The applicant file and serve evidence and submissions on the issue of penalty by no later than 21 days prior to the date of the penalty hearing referred to in order 5 above.
10.The respondents file and serve evidence and submissions on the issue of penalty by no later than 14 days prior to the date of the penalty hearing referred to in order 5 above.
11.The applicant file and serve any reply evidence or submissions on the issue of penalty by no later than 7 days prior to the date of the penalty hearing referred to in order 5 above.
12.The applicant is to serve a sealed copy of this order on the respondents by 5:00pm on 15 November 2022.
13.The parties have liberty to apply on 3 days’ notice.
THE COURT NOTES THAT:
A.The hearing referred to in Order 5 above will occur in person at court 13.1 level 13, 80 William Street, Woolloomooloo.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
I have before me an application in a proceeding filed on 14 September 2022 for the applicant (default judgment application).
These proceedings were commenced by the Fair Work Ombudsman (applicant), in relation to alleged contraventions of the Fair Work Act 2009 (Cth) (Act) after the first respondent failed to comply, pursuant to s 716(5) of the Act, with each of the following compliance notices:
(a)The compliance notice dated 3 March 2021 relating to Ms Ligi Guelfi Letang Silva (Silva Compliance Notice).
(b)The compliance notice dated 22 April 2022 relating to Ms Maeva Effoudou (Effoudou Compliance Notice).
(c)The compliance notice dated 20 May 2022 relating to Ms Natalia Monika Tyburczy (Monika Compliance Notice).
In addition, it is alleged that the first respondent contravened s 536(1) of the Act by failing to give payslips within one working day of paying an amount to each of Ms Effoudou and Ms Monika in relation to the performance of work or at all. The second respondent is said to have been involved within the meaning of s 550(2) of the Act, in the contraventions by the first respondent in relation to s 716(5) of the Act in respect of the Silva Compliance Notice and the Monika Compliance Notice, and s 536(1) of the Act declared in Orders 2(a) and 2(b) (see the Orders above) and the s 536 contravention.
The third respondent is said to have been involved within the meaning of s 550(2) of the Act in the contravention by the first respondent of s 716(5) of the Act in relation to the Monika Compliance Notice referred to at [2(c)] above. In respect of the default judgment application, the applicant relies on the following documents:
(a)the amended statement of claim filed on 15 June 2022;[1]
(b)the Affidavit of Miles Robert Bayliss made 14 September 2022 (September Bayliss Affidavit); and
(c)the Affidavit of Miles Robert Bayliss made on 28 October 2022 (October Bayliss Affidavit).
[1] The present proceedings were commenced by the applicant on 20 December 2021. The amended statement of claim had the effect, inter alia, of updating the particulars of the compliance notices upon which it relied, certain of them having been re-issued, which accounts for why the compliance notices referred to at [2] above, post-date the commencement of the proceedings.
At the commencement of the hearing of the default judgment application, in addition to the documents before me on the Court file, a number of documents were tendered for the applicant. Those are as follows:
(a)a company extract dated 9 November 2022 relating to the first respondent, which was marked as Exhibit “1A”;
(b)a bundle of correspondence dated 1 November 2022 from the applicant’s solicitors to the second and third respondents as in the capacity as directors of the first respondent, which was marked Exhibit “2A”; and
(c)an Australia Post tracking extract which indicated delivery of the document which forms Exhibit “2A” which was marked Exhibit “3A”.
Upon the second respondent’s eventual appearance at the hearing, she sought to tender a lease in relation to premises in Glebe which was marked Exhibit “1R” and an email chain which relates to the signing of that lease, and the occupation by the first respondent of the premises the subject of the lease. This email chain was marked Exhibit “2R”.
Relief sought
The applicant primarily seeks orders for default judgment based on the respondents’ failure to comply with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), together with declarations of contravention and consequential orders on default pursuant to r 13.05(2)(c) of the Rules.
The applicant alleges that the respondents contravened various provisions of the Act, as set out at [5] and [21] of the amended statement of claim (see [55]-[61] below).
The relevant principles in relation to default judgment are conveniently summarised in a decision of this Court in Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882 per Judge O’Sullivan. In that decision at [19] his Honour considered the various principles emanating from an array of decisions of the Federal Court of Australia in relation to the entry of default judgment. I have had regard to these principles.
In relation to the principles relevant to the making for an order on default, the Court generally has regard to the following:
(a)the power which the Court has in order to enter default judgment is a discretionary power and the discretion should be used generally with caution;
(b)the discretionary power is enlivened by an applicant making an application to the Court for an appropriate order; and
(c)in the absence of such an application, the power cannot be invoked.
I am satisfied that the summary judgment application made on 14 September 2022 by the applicant is such an application.
Rule 13.05(2)(c) of the Rules relevantly provides that:.
(2) If a respondent is in default, the Court may:
…
(c) 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; or
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 relief sought by an applicant on the face of their statement of claim.
It is well established that the Court does not need to be satisfied by way of evidence to prove the matters set out in the statement of claim or, in the present case, in the amended statement of claim: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3], cited in Luna Park v Bose [2006] FCA 94 at [20].
Significantly, in this matter, attention was drawn to the decision of Fair Work Ombudsman v IE Enterprises Proprietary Limited [2020] FCA 848, in which Judge Anderson said the following at [20]:
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) 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.
An application under r 13.05(2)(c) is determined, as mentioned above, on the facts pleaded in the statement of claim alone. Rule 13.04(2)(b) of the Rules provides that, for the purposes of r 13.05, the following are defaults by a respondent who has not satisfied the applicant’s claim and fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
Rule 13.06(2) of the Rules provides that:
If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.
That is relevant in the present case because there is no appearance for the first respondent and no appearance by or for the third respondent.
Procedural background
On 20 December 2021 the applicant commenced the present proceedings against the respondents by an application and a statement of claim for alleged contraventions of the Fair Work Act. On 11 February 2022 the matter was listed for a directions hearing before me using the Microsoft Teams platform due to ongoing COVID-19 precautions. On that occasion, there was no appearance by or for the respondents (including, in relation to the first respondent, pursuant to r 9.04 of the Court Rules) and I made orders for the conduct of the matter including that Notices of Address for Service be filed and for substituted service until such filing occurred. The substituted service was to be effected by service to certain email address (Email Addresses).
At no time in the proceedings have any of the respondents filed a Notice of Address for Service. At the first court date, the matter was adjourned to 12 April 2022, at which time the individual respondents appeared by telephone. At the next directions hearing on 15 June 2022 only the second respondent appeared by telephone. On that date, I made the following orders (June orders):
1.The Second and Third Respondents must file and serve a Notice of Address for Service by 22 June 2022.
2.The First Respondent must file and serve a Notice of Address for Service by a legal representative in accordance with rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) by 22 June 2022.
3.The Applicant has leave to file an Amended Statement of Claim in the form Annexed to the Application in a Proceeding filed on 3 June 2022.
4.The Applicant file and serve the Amended Statement of Claim by 22 June 2022 in the manner pursuant to order 2 of the orders of Judge Given dated 11 February 2022.
5.The First, Second and Third Respondents file and serve a Response and Defence to the Amended Statement of Claim on or by 27 July 2022.
6.The Applicant file and serve any Reply on or by 3 August 2022.
7.If the Respondents do not comply with any of Orders 1, 2 or 5 above, the Applicant be given leave to file and serve an Application in a Proceeding seeking default judgment.
8.The matter be listed for further directions before Judge Given on 10 August 2022 at 9.30am.
9.The parties have liberty to apply on three (3) days’ notice.
The matter was next due before the Court on 10 August 2022. There was no appearance for any party before me and I adjourned the matter for two days. On 12 August 2022 the applicant was represented but there was no appearance by or for any of the respondents.
On 12 August 2022, this Court made (inter alia) the following Orders (August Orders) by consent:
1.The first respondent must file and serve a Notice of Address for Service by a legal representative in accordance with r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) by 19 August 2022; and
2.The first, second and third respondents must file and serve a Response and Defence to the Amended Statement of Claim on or by 9 September 2022.
From the September Bayliss Affidavit it is apparent that the applicant served a copy of the August Orders on the respondents by:
(a)causing a copy to be sent by express post to the registered office of the first respondent, being Level 1, 106 Queens Road, Five Dock NSW 2046 (Registered Office); and
(b)sending a copy by email, on 15 August 2022, to the second and third respondents at the email addresses (see Annexure “MRB-1” of the September Bayliss Affidavit).
As at 14 September 2022 (being the date on which the September Bayliss Affidavit was affirmed and filed in support of the default judgment application), the first respondent had not:
(a)filed and served a Notice of Address for Service as required by Order 1 of the August Orders (see [22] above); or
(b)filed and served a Response and Defence to the Amended Statement of Claim as required by order 2 of the August Orders.
Further, as at the date of the affirming of the September Bayliss Affidavit, neither the second nor third respondent had:
(a)filed and served a Notice of Address for Service as required by Order 1 of the June Orders; or
(b)filed and served a Response or Defence to the Amended Statement of Claim as required by Order 2 of the August Orders.
In addition to the above, none of the respondents has complied, either partially or wholly, with previous orders of the Court made on 11 February 2022 or 12 April 2022.
On 22 August 2022, the solicitor for the applicant caused a letter to be sent to the second and third respondents in respect of the status of the proceedings (August letter). The August letter was sent by email to each of the Email Addresses as well as by Express Post to the first respondent’s registered office (Annexure “MRB-2” September Bayliss Affidavit).
When the solicitor for the applicant sent the aforementioned emails, he said that he requested “read receipts” from the respondents, which were returned from the second respondent on 22 August 2022 and from the third respondent on 23 August 2022 (see Annexure “MRB-3” of the September Bayliss Affidavit).
The August letter set out the requirements of the August Orders and noted that the first respondent must seek leave to apply to be represented by someone other than a legal practitioner. The August letter also stated that the applicant intended to apply for default judgment if the respondents failed to comply with the August Orders, and also requested that the respondents notify the applicant’s solicitor if they anticipated they would require additional time to comply with the August Orders. A reply was requested by 9 September 2022. No reply was received to the August letter from any of the respondents on that date, or at all.
From Exhibit “1A”, I am satisfied that at the present time the current registered office of the first respondent as reflected in the records of ASIC is level 1/106 Queens Road, Five Dock, New South Wales 2046. From the Bar table, the second respondent claimed that despite the content of Exhibit “1A” the address within it was not the current office of the first respondent. The second respondent said that paperwork had been completed six months ago for the purposes of updating ASIC’s records, and that paperwork had been given to the first respondent’s accountant. Various explanations were given as to why the accountant had not lodged the paperwork. If it is the case that, as a matter of fact, the current office of the first respondent is not that which is registered with ASIC (and therefore recorded in the company extract which forms Exhibit “1A”), then that is a matter for the first respondent (and to the extent that the second and third respondents are the controlling minds of that company for them also).
The applicant was entitled to rely upon the records that ASIC has as being the most current. I am satisfied that that address recorded in Exhibit “1A” as being the current registered office is the appropriate address for service for the purposes of serving the first respondent under the Rules.
On 14 September 2022 the default judgment application was filed. From the October Bayliss Affidavit, it is apparent that the default judgment application and the September Bayliss Affidavit were served on the respondents by email to the relevant Email Addresses, and also forwarded to the first respondent at its registered office. Even though not formally required pursuant to the Rules, the applicant has also provided “read receipts” referred to at [28] above which indicate that each of the emails sent to the respective Email Addresses of the individual respondents were not only received at the Email Addresses, but also opened.
On 23 September 2022 I made orders listing the default judgment application for hearing before me on 31 October 2022 using Microsoft Teams. On 28 October 2022, the Court sent to the parties, (including to the relevant email addresses) the Microsoft Teams link for the hearing.
On 31 October 2022 only the third respondent appeared (by telephone). There was no appearance for the first respondent and no appearance by or for the second respondent. On that occasion, the third respondent, as I indicated, attended but by telephone and due to the poor quality of reception and the fact he said he was in hospital but would be leaving that day, I considered it appropriate to adjourn the matter in order that the respondents could appear in person. On that occasion, the following orders were made, together with a notation (emphasis in original) (October Orders):
1.The second and third respondents must file and serve a Notice of Address for Service on or by 7 November 2022.
2.The first respondent must file and serve a Notice of Address for Service by a legal representative in accordance with r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) on or by 7 November 2022.
3.The Application in a Proceeding filed for the applicant on 14 September 2022 is adjourned for hearing before Judge Given at 2:15pm on 14 November 2022.
4.Pursuant to r 6.14(2) of the Rules, by close of business on Wednesday, 2 November 2022, a sealed copy of this Order is to be served by the applicant on the respondents.
THE COURT NOTES THAT
The hearing referred to in order 3, is to occur in person at Court 13.1, Level 13 80 William Street Woolloomooloo.
It will be observed that the October Orders clearly bore a note regarding the fact that today’s hearing would be in person. Additionally, the first respondent was ordered to file, once more, a Notice of Address for Service and therefore to obtain legal representation.
From Exhibit “3A” I am satisfied that Exhibit “2A” was served on the first respondent on 1 November 2022, in accordance with the orders of the Court made on 31 October 2022 which has the effect that the company was on notice of today’s hearing. Further, from each of the June, August and September Orders, together with annexures “MRB-1” to “MRB-5” (inclusive) of the October Bayliss Affidavit, and together with the October Orders, I am satisfied that all of the respondents were aware of today’s hearing from a number of sources and methods and that the third respondent and the first respondent, for whatever reasons, have chosen not to attend. This is generally in keeping with their conduct throughout the proceedings.
Events on the day of hearing
This morning at 11:39am, the Court began to receive emails by, and for, the respondents.
The first of those emails came from a person who is not a party to these proceedings. That email said that the third respondent was suffering from a medical condition and that medical certificates were forthcoming. However, no such certificates were received by the Court. The email also said that the second respondent was at the hospital taking care of the third respondent and that, because the third respondent could not speak, he had asked for the second respondent to appear “via dial in”.
Later emails contained adjournment requests and requests to appear by telephone by the second respondent. The Court responded to say that, in accordance with the October orders, the matter would continue in person. At the commencement of the hearing this afternoon, there was no appearance by, or for, any of the respondents. I had the matter called outside the courtroom, and that also yielded no response. The second respondent attended Court at approximately 2:25pm.
The applicant was represented throughout by a solicitor.
Various statements have been made by the second respondent from the Bar table in relation to the third respondent’s medical condition. However, as I noted, at no time in these proceedings has any evidence been filed to suggest that any of the individual respondents is not well enough, or is otherwise unable for medical reasons to attend or participate in the Court hearing. At one juncture of the hearing there was a suggestion made by the second respondent that the third respondent requires a tutor. This is also not the subject of any evidence before the Court.
During the hearing, the second respondent sought an adjournment so that she could prepare for the matter. The second respondent also indicated that the respondents wished to have a referral made under the Court’s Rules for pro bono assistance. The only basis that seems to have underpinned that application is that the respondents themselves are not financially able to obtain legal representation. That is not the sole purpose of a pro bono referral under the Court’s Rules.
In the many emails that were sent to my chambers today, one attached certificate for such pro bono assistance, which had been completed by someone with the intention that my Associate would sign it, thereby making that referral on my behalf. At my direction, my Associate responded to indicate that the appropriate method by which any application to this Court should be made in General Federal Law proceedings was by an application in a proceeding, and the prescribed form for doing so was sent to the second respondent. As at the hearing today, no applications in a proceeding have been filed for the respondents, seeking leave to have the company represented other than by a lawyer for the purposes of r 9.04 of the Rules or seeking to have the matter adjourned, or on any other basis.
The second respondent also asked that the Court dismiss the entirety of the proceedings on the basis that the respondents dispute them. If the respondents wished to dispute the proceedings, they ought to have engaged with them.
Basis of default
A default judgment may be entered where a party’s participation in the proceedings indicates an inability or unwillingness to cooperate with the Court and the applicant within an acceptable period, and that there is non-compliance which continues to occasion unnecessary delay and expense (see [15] above).
I agree that the demeanour of the respondents in these proceedings has been one of obfuscation and a general unwillingness to participate.
A number of explanations were proffered today as to why. Some of those explanations were given for the first time today. No evidence has been advanced at any time to support them, or any other explanations given previously. The applicant also seeks to emphasise that, as a Federal regulator, it is publically funded, as is the Court. The time that is occupied by these proceedings when a party does not engage in proceedings or if a matter is not ready for hearing causes a flow-on effect which has a cost. That cost is not only financial but can be measured in a wasting of time and resources which could otherwise be used by parties who are ready to participate in their proceedings before this Court. In this respect, regard should also be had to the overarching purpose of the Court’s civil practice and procedures, as set out in ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act).
There has been limited engagement by the respondents with the applicant, as set out in both of the Bayliss Affidavits and the alleged defaults of the respondents in relation to the Court’s Orders are, objectively, extant.
The applicant relies upon what are said to be contraventions of r 13.04(2)(b)(i), (ii), (iii) and (iv).
Each of the respondents has relevantly failed to provide a Notice of Address for Service, pursuant to r 6.01(1) of the Rules, and in the case of the first respondent, pursuant to r 9.04 of the Rules, which provides that a corporation must be represented by a lawyer except with leave of the Court. No leave application has been made as I noted in respect of the first respondent at any time. The failure to provide an address for service before the time by which it is required to be given is an express default under the Rules (see r 13.04(2)(b)(i)). In this regard, the respondents are each in default. It can also be said that failure to file an appearance is also a failure to file and serve a document in accordance with the Rules for the purposes of r 13.04(2)(b)(iv) to comply with an order of the Court, pursuant to r 13.04(2)(b)(iii), and also to defend the proceeding with due diligence.
I also find the following matters constitute default:
(a)the respondents’ respective failures to file and serve a response to the application within 28 days after service of it in accordance with r 4.03(3) of the Rules, which is default for the purposes of the Rules (see r 13.04(2)(b)(ii), (iii) and (iv));
(b)the failure of all three respondents to comply with each of the orders directed to them made at directions hearings, other than those already addressed in relation to the failure to file and serve a Notice of Address for Service. In this regard, I note that there have been at least six directions hearings and one return of the application in a proceeding before today; and
(c)that all of the aforementioned defaults individually and cumulatively constitute a failure to defend the proceedings with due diligence, which is, itself, a default pursuant to r 13.04(2)(b)(vii) of the Rules.
In relation to the failure of the first, second and third respondents to file a Notice of Address for Service, it was claimed from the Bar table by the second respondent that she had experienced technical difficulties in uploading documents to the Court’s electronic portal for filing.
No evidence has been provided of these alleged difficulties. These proceedings have been on foot since December 2021. The first court date in this matter was 11 February 2022. Today is the first time that any difficulty with the Court’s Portal has been asserted as being the basis upon which documents were not able to be lodged. In the absence of any evidence and given that this is the first time that it is raised, I do not accept that any technical difficulty explains why the respondents have failed to properly engage with these proceedings and in particular, to file Notices of Address for Service since the inception of the proceedings. As I also noted, various medical issues have been cited although with non-specific periods of time, which seem to expand and contract depending on the default in question.
Again, no medical evidence has been filed at any time during these proceedings and the only matters that have been given is that the respondents have been variously hospitalised. In relation to the explanations given for why it is that the respondents have not properly defended these proceedings, I am not persuaded that these explanations explain the wholesale failure to engage in, and defend, these proceedings.
Entitlement to relief
On the face of the matters outlined in the amended statement of claim the applicant says it has an entitlement to relief. The relevant parts of the amended Statement of Claim indicate as follows.
Fair Work Inspector (FWI) Kim O’Connell is and was at all relevant times a Fair Work Inspector within the meaning of s 700 of the Act. In or around November 2020, FWI O’Connell commenced investigations into the first respondent in respect of two employees, Ms Silva and Ms Monika (Silva and Monika Investigation).
In or around March 2021, FWI O’Connell commenced a second investigation into the first respondent in relation to Ms Effoudou (Effoudou Investigation). As a result of the Silva and Monika Investigation and the Effoudou Investigation, FWI O’Connell formed a belief that:
(a)the first respondent employed:
(i)Ms Silva at the Business from 28 October to 8 November 2020 (Silva Contravention Period); and
(ii)Ms Monika at the Business from 10 to 31 October 2020 (Monika Contravention Period); and
(iii)Ms Effoudou at the Business from 27 September 2020 to 12 December 2020 (Effoudou Contravention Period);
(b)each of Ms Silva, Ms Monika and Ms Effoudou was a casual employee;
(c)the Restaurant Industry Award 2020 (Award), a modern award under the Act, covered and applied to the first respondent in respect of the employment of Ms Silva, Ms Monika and Ms Effoudou;
(d)during the Silva Contravention Period, Ms Silva:
(i)performed work on Mondays to Fridays, Saturdays and Sundays;
(ii)was paid an hourly rate of $22.00 for all hours of work performed on Mondays to Fridays which was insufficient to cover the required wage under the Award for those hours; and
(iii)was paid an hourly rate of $25.00 for all hours of worked performed on Saturdays and Sundays, which was insufficient to cover the required wage under the Award for those hours.
(e)during the Monika Contravention period, Ms Monika performed work on Saturdays and Sundays, and was paid an hourly rate of $25.00 for all hours of work performed, which was insufficient to cover the required wage under the Award for hours on Saturdays and Sundays; and
(f)during the Effoudou Contravention period, Ms Effoudou performed work on Saturdays and Sundays and a public holiday on 5 October 2020, and was paid an hourly rate of $25.00 for all hours of work performed, which was insufficient to cover the required wage under the Award for hours on Saturdays, Sundays and public holidays.
By reason of the matters referred to in the preceding paragraph, FWI O’Connell formed a reasonable belief pursuant to s 716(1) of the Act that the first respondent had contravened the following terms of the Award:
(a)in respect of Ms Silva:
(i)cl 11.2 (and cl 18.1) in respect of casual minimum wage; and
(ii)cl 24.2(b) in respect of Saturday and Sunday casual penalty rates;
(Silva Contraventions)
(b)in respect of Ms Monika, cl 24.2(b) in respect of Saturday and Sunday casual penalty rates (Monika Contraventions); and
(c)in respect of Ms Effoudou:
(i)cl 11.2 in respect of casual loading; and
(ii)cl 24.2(c) in respect of Saturday, Sunday and Public Holiday casual penalty rates (collectively, Effoudou Contraventions)
On 3 March 2021, FWI O’Connell gave the first respondent the Silva Compliance Notice pursuant to s 716(2) of the Act in respect of the Silva Contraventions. The Silva Compliance Notice required the first respondent to take certain actions to remedy the direct effects of the Silva Contraventions by 25 March 2021 and produce reasonable evidence to the applicant of its compliance with the Silva Compliance Notice by 7 April 2021. The first respondent did not do so in time or at all.
On 22 April 2021, FWI O’Connell gave the first respondent the Effoudou Compliance Notice pursuant to s 716(2) of the Act in respect of the Effoudou Contraventions. The Effoudou Compliance Notice required the first respondent to take certain actions to remedy the direct effects of the Silva Contraventions by 17 May 2021 and produce reasonable evidence to the applicant of its compliance with the Effoudou Compliance Notice by 24 May 2021. The first respondent did not do so in time or at all.
On 20 May 2021, FWI O’Connell gave the first respondent the Monika Compliance Notice pursuant to s 716(2) of the Act in respect of the Monika Contraventions. The Monika Compliance Notice required the first respondent to take certain actions to remedy the direct effects of the Monika Contraventions by 3 June 2021 and produce reasonable evidence to the applicant of its compliance with the Monika Compliance Notice by 10 June 2021. The first respondent did not do so in time or at all.
By the failures referred to in [59] to [61] above, the first respondent contravened s 716(5) of the FW Act in respect of each of the Silva Compliance Notice, the Effoudou Compliance Notice and the Monika Compliance Notice. Each of those failures gives rise to contraventions of the Act and the Fair Work Regulations2009 (Cth) by the respondents, the second and third respondents having been involved in the first respondent’s contraventions within the meaning of s 550(2) of the Act.
The Court has power to make orders that it considers appropriate if it satisfied of a contravention under the Act, including:
(a)declarations pursuant to s 141 of the Court Act;
(b)remedial and compensatory orders under s 545 of the Act (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157); and
(c)pecuniary penalties pursuant to s 546 of the Act.
The Court’s power to make declarations involves a wide discretion and the Court is empowered to make declarations based on admissions which are taken to have been given consequent upon default: see Australian Competition and Consumer Commission (ACCC) v Dateline Imports Pty Ltd (2014) 143 ALD 136 and Australian Competition and Consumer Commission v Yellow Page Marketing BV and Anor (No 2) (2011) 195 FCR 1 at [66] to [69]). In particular, if the case involves issues of public interests, such as enforcing compliance with terms and conditions of employment.
I am satisfied that the applicant has standing to bring these proceedings. On the basis of the matters set out in the amended statement of claim, the applicant says that it has an entitlement to the relief sought.
In relation to the entitlement to relief sought, the second respondent sought to rely on the lease document and emails contemporaneous to the signing of that lease. I accepted the tender of those documents subject to relevance. In my view, those documents do nothing to undermine the applicant’s entitlement to relief as it is presently pleaded on the face of the amended Statement of Claim. The second respondent says that the significance of the lease is that it demonstrates that it was only from December 2020 onwards that the first respondent took possession of the relevant premises. However, even if that is accurate it does not exclude the prospect that there was an earlier lease nor does it inform any question relating to the employment status of the persons who were the subject of the compliance notices. The inferences urged on the Court by the second respondent were not open on the basis of Exhibits “1R” and “2R”.
There is a utility in making the orders sought and also in making the declarations which are sought by the applicant.
Further there is, I think, a public interest in doing so (see Yellow Page (No 2) supra at [79]). By order 8 sought in the minutes of order, which forms Annexure “B” to the application in a proceeding, the applicant seeks a separate hearing in respect of penalty together with consequential orders for the service of submissions and evidence for all parties. I am of the view that this is a sensible course and I will also make orders to that effect.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 December 2022
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