Fair Work Ombudsman v Ponsonby
[2022] FedCFamC2G 636
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Ponsonby [2022] FedCFamC2G 636
File number(s): LNG 52 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 10 August 2022 Catchwords: INDUSTRIAL LAW – Fair Work – penalty hearing – application for default judgment – contravention of s 716(5) of the Fair Work Act 2009 (Cth) – by default judgment, declaration that respondent failed to comply with compliance notice and orders providing other relief as sought Legislation: Fair Work Act 2009
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 r 13.05
Cases cited: Arthur v Vaupotic Investments Proprietary Limited (2005) FCA 433
Australian Building and Construction Commissioner v Abbott (No. 3) (2011) FCA 340
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2)[2011] FCA 352
Fair Work Ombudsman v Garfield Berry Farm Pty Ltd [2011] FMCA 885
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 3 June 2022 Place: Hobart ORDERS
LNG 52 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: VINCENT PETER PONSONBY
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
10 AUGUST 2022
UPON ADMISSIONS TAKEN TO HAVE BEEN MADE CONSEQUENT UPON NON-COMPLIANCE WITH ORDERS OF THE COURT:
THE COURT DECLARES:
1.That the Respondent contravened s 716(5) of the Fair Work Act 2009 (“the FW Act”) by failing to comply with the Compliance Notice given to the respondent on 6 May 2021 (“the Compliance Notice”).
THE COURT ORDERS THAT:
2.Judgment be entered pursuant to r 13.05(2)(c) of the Federal and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.Pursuant to s 545(1) of the FW Act, the Respondent take the uncompleted steps that were required by the Compliance Notice within 28 days of this order, by:
(a)calculating and making the payments to Michael Panozzo (“Panozzo”) which were required by the Compliance Notice to be paid by 3 June 2021;
(b)calculating the additional superannuation contributions he was required to pay on behalf of Panozzo in respect of the underpayments he was required by the Compliance Notice to pay to him;
(c)paying superannuation into the nominated superannuation fund of Panozzo for any additional superannuation contributions he was required to pay on the underpayments (as required by clause 32.2 of the Award); and
(d)preparing and producing to the applicant, the schedule required by para 8 of the Compliance Notice, and providing proof that the payments referred to in paragraphs 3(a) and 3(c) above have been made.
4.Pursuant to s 547(2) of the FW Act, the Respondent pay to Panozzo within 28 days of this order, interest on the amounts payable pursuant to paragraphs 3(a) and 3(c) above.
5.The matter is adjourned to 28 September 2022 at 2:15pm for a further hearing on the Applicant’s claim for a penalty to be imposed on the Respondent for the contravention declared in paragraph 1 of these Orders.
6.The Applicant file and serve any evidence to be relied on and an outline of submissions relating to penalty no later than 35 days prior to the date of the hearing fixed pursuant to Order 5 above.
7.The Respondent file and serve any evidence to be relied on and an outline of submissions relating to penalty no later than 21 days prior to the date of the hearing fixed pursuant to Order 5 above.
8.The Applicant personally serve a copy of these Orders and the Reasons for Judgment on the Respondent within 7 days of the date of these Orders.
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 Taglieri
INTRODUCTION AND BACKGROUND
On 3 June 2022, I conducted a hearing in respect of an application for default judgment in these proceedings.
The Fair Work Ombudsman (“the Applicant”) brought the proceedings in respect of alleged non-compliance with various provisions of the Fair Work Act 2009, said to arise consequent to the Respondent, Vincent Peter Ponsonby trading as ‘Ponsonby & Co Building’ (“the Respondent”) allegedly not paying entitlements due to Michael Panozzo (“the employee”) pursuant to the Building and Construction General Onsite Award 2010 (“the Award”).
The proceedings commenced by Application filed on 24 September 2021. Various relief is sought including declaratory relief, payment of monies alleged to be owing to the employee and imposition of a pecuniary penalty. It is alleged that the Respondent did not comply with a Compliance Notice dated 6 May 2021, issued pursuant to s.716 (2) of the Fair Work Act 2009. Full particulars of the basis upon which relief is sought is pleaded in the Statement of Claim also filed on 24 September 2021.
The Application and Statement of Claim were served on the Respondent on 5 October 2021.[1]
[1] Affidavit of service of Julian Williams filed 2 November 2021.
The matter came before a Registrar of this Court on 4 November 2021, on which occasion orders were made, amongst others, that:
1.The Respondent file and serve a notice of address for service, response and defence to the statement of claim by 25 November 2021.
2.If the Respondent does not comply with Order 1, the Applicant may file and serve an Application in a Proceeding, supported by affidavit evidence, for default judgment in accordance with r 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021.
The court records shows that the Respondent did not file the documents required by Order 1 of the Registrar’s 4 November 2021 orders. On 1 December 2021 the Applicant filed an Application in a Proceeding pursuant to the leave granted in Order 2, seeking a default judgment for the relief sought.
On 2 March 2022 the Application in a Proceeding came before me for directions and I made the following orders, that:
1.The Application in a Proceeding for default judgment filed 1 December 2021 is listed on 3 June 2022 at 10.00am before Judge Taglieri.
2.The Application may proceed on an undefended basis and orders may be made in the event there is no appearance by the Respondent on 3 June 2022 at 10.00am.
3.The solicitor for the Applicant are to personally serve notice of this listing and a copy of these orders on the Respondent within 21 days of the date of this order.
THE DEFAULT JUDGMENT HEARING
On 3 June 2022, the Applicant was represented by counsel and the Respondent did not appear. I enquired whether the Applicant had been served with the Application and Statement of Claim and the orders I had made on 2 March 2022.
The Applicant asked the Court to read and the court read the following documents:
(a)Affidavit of service of Holly Williams filed 1 June 2021, marked as Exhibit A-1;
(b)Affidavit of service of Julian Williams filed 2 November 2021, marked as Exhibit A-2; and
(c)Affidavit of David Wilson filed 1 December 2021, marked as Exhibit A-3.
The content of these affidavits satisfied me that the Respondent had been served and importantly had received notice of the hearing in respect of default judgment before me and that it would proceed by way of undefended hearing if he did not comply with previous court orders and/or did not appear.
Counsel for the Applicant also provided the court with a minute of the proposed orders sought.
LEGAL PRINCIPLES – DEFAULT JUDGMENT
The Court has the discretionary power to deliver judgment where a respondent is in default pursuant to rule 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (“the Rules”). Relevant to this matter is rule 13.05(2)(c) and (d), which states:
(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
(d) give judgment or make any other order against the respondent; …
A number of Federal Court authorities have addressed the legal principles that apply to the operation of the equivalent Rule to Rule 13.05 in the Federal Court Rules 1979 (Cth).[2] I was referred to Fair Work Ombudsman v Garfield Berry Farm Pty Ltd [2011] FMCA 885, as an example of this court applying those principles to Rule 13.05.[3]
[2] Arthur v Vaupotic Investments Proprietary Limited (2005) FCA 433 at [3]; Australian Building and Construction Commissioner v Abbott (No. 3) (2011) FCA 340 at [11]; and Australian Competition and Consumer Commission v Yellow Page Marketing BV (No. 2) [2011] FCA 352 at [14].
[3] Fair Work Ombudsman v Garfield Berry Farm Pty Ltd [2011] FMCA 885 at [4].
Citing from of the Federal Court authority, Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2)[2011] FCA 352 at [14], the principles can be succinctly stated to be that the Rule:
1.does not require proof of the claim by evidence, but only requires that – on the face of the statement of claim – there is a claim for the relief sought; and
2.the claim must fall within the jurisdiction of the Court
The Statement of Claim in this matter is detailed and comprehensive and I am satisfied that on the face of it, there is a claim for the relief sought. I am also satisfied that the Court has jurisdiction in relation to the claim.[4]
[4] Chapter 4 of the Fair Work Act 2009 (Cth).
If one of the pre-conditions mentioned in Rule 13.05 exist in this case, it is open to me to give judgment by default and whether I ought to do so involves an exercise of my discretion.
In the past there has been some competing authority on whether declaratory relief should be given by default judgment, but that now appears settled and I am bound by the Federal Court’s approach to this issue. In Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2)) [2011] FCA 352, Gordon J usefully summarised the position at [66] to[67] as follows:
66.The Court has a wide discretionary power to make declarations under s 21 of the FCA. How does O 35A sit with this discretionary power? Order 35A imposes no restraints upon the relief sought. It is now established that refusals by the Courts in the past to make declarations in cases of default and deemed admissions were based on a practice, not a rule of law
67.Consistent with that line of authority, it is necessary to identify considerations relevant to the exercise of the discretion to grant or not grant declarations in a case such as the present. Considerations include:
1.whether the declaration will have any utility;
2.whether the proceeding involves a matter of public interest;
3.whether the circumstances call for the making of the Court’s disapproval of the contravening conduct.
[citations omitted]
EVALUATION
The evidence contained in the affidavits referred to at [9] establish and I find that the Respondent had been served with and had notice of the Application, Statement of Claim, the Registrar’s orders of 4 November 2021 and my orders of 2 March 2022.
The court records evidence that he has not complied with any of the Court’s orders and he did not appear at the hearings before the Registrar or myself. Accordingly, he is certainly in default within the meaning of Rule 13.04 and that invokes the operation of Rule 13.05.
As Rule 13.05(2) operates, because these proceedings commenced by Application supported by a Statement of Claim, I have the discretion to give judgment in the terms sought.[5]
[5] Rule 13.05(2)(c) of the Rules.
Consistent with the principles referred to at [17], I consider that declaratory relief will have utility and in this matter will serve the public interest. In particular, it will pronounce the expectations of courts about Chapter 4 of Fair Work Act 2009 concerning compliance and enforcement and the importance of those provisions to the rule of law. Complementary to this, the declaration will serve as a warning and operate to deter employers from ignoring and failing to comply with Compliance Notices served pursuant to the Fair Work Act 2009 (Cth). Collectively, these things are in the public interest and it promotes the capacity of Fair Work Inspectors to undertake their important roles and work under the Act.
Further, the declaratory relief will serve to express the Court’s disapproval of employers who fail to engage in the compliance processes that exist to ensure employees receive their proper entitlements under an award.
I am persuaded that I should in my discretion order the relief sought as set out in the Minute of Orders sought, including the declaratory relief for all the foregoing reasons.
The Applicant should personally serve a copy of this judgment and the formal orders on the Respondent. This will ensure that he has notice of the penalty hearing which will occur before the court in the future and his obligation to file material in response to that relied upon by the Applicant for that purpose.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 10 August 2022
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