Fair Work Ombudsman v Nagpal trading as Affordable Movers Brisbane (No 2)
[2021] FedCFamC2G 259
•12 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Nagpal trading as Affordable Movers Brisbane (No 2) [2021] FedCFamC2G 259
File number(s): BRG 305 of 2021 Judgment of: JUDGE EGAN Date of judgment: 12 November 2021 Catchwords: INDUSTRIAL LAW – FAIR WORK – Application for default judgment – failure by respondent to comply with orders of the Court – application granted. Legislation Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.04(2), 13.05(2)(c)
Fair Work Act 2009 (Cth), s 716(5)Cases Cited Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 10 November 2021 Date of hearing: 10 November 2021 Solicitor for the Applicant: Mr D. Welsh (Fair Work Ombudsman) Respondent: Mr Nagpal ORDERS
BRG 305 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: RAHUL NAGPAL TRADING AS AFFORDABLE MOVERS BRISBANE ABN 70 223 473 561
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
12 NOVEMBER 2021
IT IS ORDERED THAT:
1.Default judgment be entered against the Respondent 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), by reason of the Respondent's default (pursuant to rule 13.04(2) of the Rules) by his failure to:
a. give an address for service before the time for the Respondent to give an address had expired (r13.04(2)(b)(i));
b. file a response before the time for the Respondent to file a Response had expired (r13.04(2)(b)(ii));
c. comply with an order of the Court in the proceedings, being orders 2, 3, and 5 of the orders of the Court dated 7 September 2021 (r13.04(2)(b)(iii)); and
d. in light of the above, defend the proceedings with due diligence (r13.04(2)(b)(vii)).
2.Upon admissions taken to have been made by reason of the Respondent’s default, IT IS DECLARED that the Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with:
a. a compliance notice given to the Respondent on 25 February 2021 in respect of Mr Duart Salse Rodriguez; and
b. a compliance notice given to the Respondent on 25 February 2021 in respect of Mr Guillaume Coulon and Mr Jamie McCrea.
3.The matter be listed for final hearing at 9:45am AEST on 13 April 2022 for a further hearing in respect of the Applicant’s claim for pecuniary penalties to be imposed on the Respondent for the contraventions declared at paragraph 2 above.
4.The Applicant file and serve evidence and submissions relating to penalty by 4:00pm AEST on 23 March 2022.
5.The Respondent file and serve evidence and submissions relating to penalty by 4:00pm AEST on 30 March 2022.
6.The Applicant file and serve any reply submissions and / or any reply evidence relating to penalty by 4:00pm AEST on 6 April 2022.
7.Order 7 of the Orders made by Judge Egan on 7 September 2021 be set aside.
8.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
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
JUDGE EGAN:
On 20 July 2021, the applicant filed an Originating Application together with a Statement of Claim. The relief sought in the Statement of Claim was set out in paragraphs 19 and 20 thereof, and was as follows:
“C. Relief Sought
19. The Applicant seeks declarations that the Respondent:
(a) contravened section 716(5) of the FW Act by failing to comply with the Rodriguez Notice; and
(b) contravened section 716(5) of the FW Act by failing to comply with the Coulon and McCrea Notice.
20. The Applicant seeks orders that:
(a) pursuant to section 545(1) of the FW Act, the Respondent take the steps that were required by the Rodriguez Notice and Coulon and McCrea Notice within 28 days of the order, by:
(i) calculating and paying to the Applicant the outstanding entitlements the Respondent was required to pay to each of Mr Rodriguez, Mr Coulon, and Mr McCrea, as specified in the Rodriguez Compliance Notice and Coulon and McCrea Compliance Notices;
(ii) calculating and paying any superannuation contributions into each of Mr Rodriguez, Mr Coulon, and Mr McCrea’s’ nominated superannuation funds for additional superannuation contributions required to be paid on the outstanding entitlements referred to in paragraph 20(a)(i) above;
(iii) preparing and producing to the Applicant a schedule outlining the Respondent’s calculations of the outstanding entitlements it was required to pay to Mr Rodriguez, Mr Coulon, and Mr McCrea and any superannuation contributions required to be paid to the their nominated superannuation funds referred to in paragraphs 20(a)(i) and 20(a)(ii) above, and providing proof that the outstanding entitlements and additional superannuation contributions were rectified.
(b) pursuant to section 547(2) of the FW Act, the Respondent pay interest within 28 days of this order, to the Applicant on the amounts owed to Mr Rodriguez, Mr Coulon, and Mr McCrea pursuant to paragraph 20(a)(i) above;
(c) the Applicant distribute to Mr Rodriguez, Mr Coulon, and Mr McCrea the amounts paid to the Applicant pursuant to paragraphs 20(a)(i) and 20(a)(ii) within 90 days of the payments being made;
(d) pursuant to section 546(1) of the FW Act the Respondent pay pecuniary penalties to the Commonwealth for each of the contraventions declared and set out in paragraph 19 above;
(e) the Applicant have liberty to apply on seven days’ notice in the event that any of the orders are not complied with; and
(f) such further order or orders as the Court considers appropriate.”
An Affidavit of Service of a letter from the applicant to the respondent dated 22 July 2021, together with a copy of the Application and the Statement of Claim, was filed on 2 August 2021.
The matter came before the Court as a first return date on 7 September 2021. On 6 and 7 September 2021, email correspondence had been sent by, and received by, Judge’s Chambers, which correspondence relevantly disclosed that the respondent knew that the matter had been listed as a first return date on 7 September 2021. Exhibit 1 is a bundle of such email correspondence, together with a copy email of 26 August 2021 sent by the Associate to the applicant advising the applicant that the first return date was to be 7 September 2021.
On 7 September 2021, the Court made the following Orders:
“IT IS DECLARED THAT:
1. …
IT IS ORDERED THAT:
2.The Respondent shall file and serve a Notice of Address for Service on or before 4:00pm on 10 September 2021.
3.The Respondent shall file and serve a Defence on or before 4:00pm on 24 September 2021.
4.The Applicant shall file and serve a Reply on or before 4:00pm on 1 October 2021.
5.The parties are to each make, file and serve an affidavit of disclosed documents on or before 4:00pm on 11 October 2021.
6.The parties shall undertake mutual inspection of the opposing party’s disclosed documents on or before 4:00pm on 18 October 2021.
7.Pursuant to s. 34 of the Federal Circuit Court of Australia Act 1999 (Cth), and r. 30.14 of the Federal Circuit and Family Court Rules (Division 2) (General Federal Law) 2021 (Cth), this matter be referred to mediation before a Registrar of this Court, with such mediation to be held in Brisbane on a date to be fixed by the Registrar after:
a. 1 November 2021; and
b. Liaising with the parties as to their availability.
8.The matter be listed for directions on a date to be fixed following the mediation.
9. …”
On 18 October 2021, the applicant filed an Application in a Case which sought the following Orders:
1. Default judgment be entered against the Respondent pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), by reason of the Respondent's default pursuant to rule 13.04(2) of the Rules by his failure to:
a. give an address for service before the time for the Respondent to give an address has expired (r13.04(2)(b)(i));
b. file a response before the time for the Respondent to file a Response has expired (r13.04(2)(b)(ii));
c. comply with an order of the Court in the proceedings, being orders 2, 3, and 5 of the orders of the Court dated 7 September 2021 (r13.04(2)(b)(iii)); and
d. in light of the above, defend the proceedings with due diligence (r13.04(2)(b)(vii)).
2. Upon admissions taken to have been made by reason of the Respondent’s default, a declaration be made that the Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with:
a. a compliance notice given to the Respondent on 25 February 2021 in respect of Mr Duart Salse Rodriguez; and
b. a compliance notice given to the Respondent on 25 February 2021 in respect of Mr Guillaume Coulon and Mr Jamie McCrea.
3. The matter is adjourned to a date to be fixed for a further hearing in respect of the Applicant’s claim for penalties to be imposed on the Respondent for the contraventions declared at paragraph 2 above.
4. The Applicant file and serve evidence and submissions relating to penalty by no later than 21 days prior to the date of the hearing fixed pursuant to paragraph 3 above.
5. The Respondent file and serve evidence and submissions relating to penalty by no later than 14 days prior to the date of the hearing fixed pursuant to paragraph 3 above.
6. The Applicant file and serve any reply submissions and / or any reply evidence relating to penalty by no later than 7 days prior to the date of the hearing fixed pursuant to paragraph 3 above.
7. The parties have liberty to apply.
8. Any further order that the Court considers appropriate.”
An affidavit of one Mr Welsh, also filed on 18 October 2021, deposed to the respondent having been made aware of his responsibilities in the light of the making of Orders of the Court on 7 September 2021. At paragraph 23 of the affidavit of Mr Welsh, Mr Welsh deposed to the respondent having asked that email correspondence not be sent to him concerning the subject matter of the Court’s Orders. The Court has no reason to doubt that the respondent was other than cavalier in his approach to compliance with orders of the Court.
The Application in a Case was listed for hearing on 10 November 2021. The respondent made oral submissions which went to the question of his having made payment to former employees after the applicant had asked him to do so. The respondent failed to relevantly appreciate that there was a distinction between the payment by him of money owed to former employees, and the application for pecuniary penalty orders as sought by the applicant in the Statement of Claim.
At the time of the hearing of the Application in a Case, the respondent was in default of Orders numbered 2, 3 and 5 made by this Court on 7 September 2021.
The Court was not asked to adjourn the hearing of the Application in a Case by the respondent, nor did the respondent give any indication that he intended to comply with the Orders of the Court made on 7 September 2021.
The Court is satisfied that the applicant has demonstrated wilful default on the part of the respondent. The respondent’s default had the effect of delaying the orderly conduct and case management of the proceeding. [1] By reason of such default, it is appropriate that orders be made in terms of paragraphs 1 and 2 of the Application in a Case. It is also appropriate that the matter be listed for hearing of the application for pecuniary penalties, and that interlocutory orders be made so as to facilitate such hearing.
[1] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
It is so ordered.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 12 November 2021
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