Fair Work Ombudsman v Ponsonby

Link copied
Case Copied 10 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Ponsonby and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 636
Decision Date

CaseChat Overview and Summary

In the case of Fair Work Ombudsman v Ponsonby, the Fair Work Ombudsman sought a default judgment against the defendant, Ponsonby, for alleged contraventions of the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with deciding whether to grant the requested relief, including an injunction, penalties, and costs. The primary legal issue before the court was whether to exercise its discretion to deliver judgment by default, given that Ponsonby was in default of responding to the proceedings. The court had to consider whether the claim on the face of the statement of claim was valid, whether the relief sought fell within the court's jurisdiction, and the considerations relevant to granting default declaratory relief.

The court determined that the statement of claim was detailed and comprehensive, and it appeared to present a valid claim for the relief sought. Additionally, the claim fell within the jurisdiction of the court, as evidenced by the Fair Work Act. The court then turned to the principles governing the exercise of its discretion to grant judgment by default. The court referenced previous Federal Court authorities that clarified the operation of the relevant rule, emphasizing that the court does not require proof of the claim but only that the claim appears valid on its face. The court further considered whether the requested declarations would have utility, whether the matter involved public interest, and whether the circumstances warranted the court's disapproval of the alleged contravening conduct. Based on these considerations, the court concluded that it was appropriate to exercise its discretion to grant the requested relief by default judgment.

The court granted the relief sought by the Fair Work Ombudsman, including an injunction, penalties, and costs. The court found that the declaration would have utility, the proceeding involved a matter of public interest, and the circumstances called for the court's disapproval of the alleged contravening conduct. Consequently, the court issued the default judgment in favor of the Fair Work Ombudsman, thereby providing the requested relief and ensuring compliance with the Fair Work Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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; and2.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 law67.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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.