Fair Work Ombudsman v Precise Fencing and Landscaping Pty Ltd
[2023] FedCFamC2G 1235
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Precise Fencing and Landscaping Pty Ltd [2023] FedCFamC2G 1235
File number(s): SYG 905 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 27 October 2023 Catchwords: PRACTICE & PROCEDURE – default judgment – application for declarations. Legislation: Fair Work Act 2009 (Cth) ss 550, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.03, 6.01, 13.04, 13.05, sch.1 items 13, 15
Federal Court Rules 2011 (Cth) rr 16.07, 16.32
Division: Fair Work Number of paragraphs: 15 Date of hearing: 27 October 2023 Place: Sydney Solicitor for the Applicant: Mr T. Ahmed (Fair Work Ombudsman) Counsel for the First and Second Respondents: No appearance by or on behalf of the respondents ORDERS
SYG 905 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: PRECISE FENCING AND LANDSCAPING PTY LTD ACN 649 068 244
First Respondent
KURT JOHN DEAN
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
27 OCTOBER 2023
THE COURT DECLARES THAT UPON ADMISSIONS TAKEN TO HAVE BEEN MADE BY REASON OF THE DEFAULT OF THE FIRST RESPONDENT AND SECOND RESPONDENT:
1.The first respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued to the first respondent dated 2 May 2022.
2.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 and is taken, by s.550(1) of the FW Act, to have contravened s.716(5) of the FW Act.
THE COURT ORDERS THAT:
1.Default judgment be entered for the applicant against the first respondent and second respondent 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), by reason of the default of the first respondent and second respondent, pursuant to r.13.04(2) of the Rules, by their failure to:
(a)file and serve a notice of address for service as required by r.6.01 of the Rules;
(b)file and serve a response or defence within 28 days of service as required by rr.4.03 and 4.04 of the Rules;
(c)file and serve a notice of address for service on or before 21 July 2023 in accordance with order 1 of the Orders of the Court dated 7 July 2023;
(d)file and serve a response and defence in accordance with order 2 of the Orders of the Court dated 7 July 2023; and
(e)defend the proceeding with due diligence.
2.Pursuant to s.545(1) of the FW Act, within 28 days of this order, the first respondent make a payment to Mitchell Hicks (Employee) in the amount of $1,674.62 (Underpayment Amount).
3.Pursuant to s.547(2) of the FW Act, within 28 days of this order, the first respondent pay interest to the Employee on the Underpayment Amount at the applicable pre-judgement interest rate.
4.The applicant have liberty to apply on seven (7) days’ notice in the event that any of the preceding orders are not complied with.
5.The applicant file and serve an outline of submissions and any further evidence on or before 1 December 2023.
6.The respondents file and serve an outline of written submissions and any evidence on which they will rely on or before 23 January 2024.
7.The matter be adjourned to 30 January 2024 at 2:15pm for a further hearing in respect of the applicant’s claim for penalties to be imposed on the first respondent and second respondent pursuant to s.546(1) of the FW Act for the contraventions declared above.
8.The parties have liberty to apply on three (3) days’ notice.
9.A copy of these orders be served on the first respondent and second respondent.
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 Cameron
INTRODUCTION
On 5 June 2023 this proceeding was brought by the Fair Work Ombudsman (Ombudsman) under the Fair Work Act 2009 (Cth) (FW Act) in respect of the failure of the first respondent, Precise Fencing and Landscaping Pty Ltd, (PFL) to obey a compliance notice dated 2 May 2022 (Compliance Notice) which the Ombudsman served on it in respect of unpaid accrued annual leave entitlements owing to its employee, Mitchell Hicks, who resigned from his employment on 4 March 2022. The second respondent, Kurt Dean, is and at all relevant times was, PFL’s sole director and secretary and was responsible for the overall management and control of the first respondent. He was also alleged to be responsible for ensuring the first respondent’s compliance with its legal obligations under the FW Act.
In a statement of claim filed with the initiating application, the Ombudsman alleged that PFL contravened s.716(5) of the FW Act by failing to comply with the requirements of the Compliance Notice, most relevantly by not paying out on termination Mr Hick’s accrued annual leave entitlements of $1,674.62, and that Mr Dean was involved, within the meaning of s.550(2) of the FW Act, in PFL’s contravention. The Ombudsman sought declarations of contravention and orders for compensation, interest and pecuniary penalties against both respondents. On 28 September 2023 the Ombudsman filed an application in a proceeding seeking 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) (“Rules”) against the respondents. These reasons concern that application.
Service
On 7 August 2023 and on 14 September 2023, the Ombudsman filed affidavits of service evidencing service of the originating application and statement of claim filed on 5 June 2023 on the first respondent and by substituted service on the second respondent in accordance with orders made on 11 August 2023.
Neither respondent has filed a notice of address for service, a response or a defence, and there have been no appearances made by the respondents at previous listings of this proceeding on 7 July 2023, 11 August 2023 and 8 September 2023.
On 26 October 2023 the Ombudsman filed an affidavit of service evidencing service of the current application in a proceeding and supporting affidavit on the respondents.
APPLICATION IN A PROCEEDING
The Ombudsman’s application in a proceeding relevantly sought the following orders:
1. Default judgment be entered for the Applicant against the First Respondent and Second 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 default of the First Respondent and Second Respondent, pursuant to rule 13.04(2) of the Rules by their failure to:
(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 or defence within 28 days of service as required by rules 4.03 and 4.04 of the Rules;
(c) file and serve a notice of address for service on or before 21 July 2023 in accordance with order 1 of the Orders of the Court dated 7 July 2023;
(d) file and serve a response and defence in accordance with order 2 of the Orders of the Court dated 7 July 2023; and
(e) defend the proceeding with due diligence.
2. Upon admissions taken to have been made by reason of the default of the First Respondent and Second Respondent, declarations be made that:
(a) the First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued to the First Respondent dated 2 May 2022; and
(b) the Second Respondent was involved, within the meaning of section 550(2) of the FW Act, in the contraventions by the First Respondent of section 716(5) of the FW Act and is taken, by section 550(1) of the FW Act, to have contravened section 716(5) of the FW Act.
3. An order pursuant to section 545(1) of the FW Act, that the First Respondent take the steps that were required by the compliance notice dated 2 May 2022 within 28 days from the date of this order, by:
(a) calculating the number of hours of annual leave that were accrued to Mitchell Hicks (Employee) when his employment ended;
(b) calculating the amount the Employee should have been paid for the accrued, but unused, annual leave when his employment ended;
(c) making a payment to the Employee of the amount referred to in 3(b) immediately above;
(d) making a record of the information and amounts referred to in 3(a) and 3(b) above and the amount of the payment referred to in 3(c) immediately above; and
(e) provide the record of the information and amounts, and the amount of the payment referred to in 3(d) above.
4. An order pursuant to section 547(2) of the FW Act that, within 28 days of the date of this order, the First Respondent pay to the Employee interest on the amount owed to him pursuant to 3(b) above.
LEGISLATION AND RULES
The FW Act relevantly provides:
716 Compliance notices
Application of this section
(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:
(a) a provision of the National Employment Standards;
(b) a term of a modern award;
…
Giving a notice
(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:
(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1);
(b) produce reasonable evidence of the person's compliance with the notice.
(3) The notice must also:
...
(c) set out brief details of the contravention; and
(d) explain that a failure to comply with the notice may contravene a civil remedy provision; …
…
Person must not fail to comply with notice
(5) A person must not fail to comply with a notice given under this section.
…
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
...
The Rules relevantly provide:
4.03 Response to application
(1) A respondent to an application who seeks to do any of the following must file a response in accordance with the approved form:
(a) indicate consent to an order sought by the applicant;
(b) ask the Court to make another order;
(c) ask the Court to dismiss the application;
(d) seek orders in a matter other than the matter set out in the application;
(e) make a cross‑claim against the applicant or another party.
...
(3) A response must be filed and served within 28 days after service of the application to which it relates.
...
6.01 Address for service
(1) A party to a proceeding must give an address for service.
...
13.04 When a party is in default
…
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) 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; ...
…
13.05 Orders on default
…
(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;
…
The Federal Court Rules 2011 (Cth) (“FCA Rules”) relevantly provide:
16.07 Admissions, denials and deemed admissions
(1) A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.
(2) Allegations that are not specifically denied are taken to be admitted.
…
16.32 Defence to application
A respondent must file a defence, in accordance with Form 33, within 28 days after service of the statement of claim.
Those rules are applied in this Court, that is to say, the Federal Circuit and Family Court of Australia (Division 2), by virtue of items 13 and 15 of sch.1 to the Rules.
PRIOR ORDERS
Although these reasons are based on the respondents’ non-compliance with the Rules, I record that on 7 July 2023 the Court also made the following orders in this proceeding:
1. The respondents file and serve any notice of address for service on or before 21 July 2023.
2. The respondents file and serve responses and defences on or before 28 July 2023.
APPLICANT’S EVIDENCE
In support of the application for default, the Ombudsman filed an affidavit of her solicitor, Mr Ahmed, affirmed on 27 September 2023.
Mr Ahmed deposed that on 27 September 2023, he caused a company search of the first respondent to be undertaken. To his affidavit he annexed a copy of that search which confirms earlier information as to the address of the registered office of the first respondent, and the fact that Mr Dean is the sole director, secretary and shareholder of that company.
CONSIDERATION
The matters which I have recited in these reasons satisfy me that the respondents are in default of compliance with the Court’s rules, are to be taken to have admitted the allegations pleaded by the Ombudsman, and that default judgment ought to be entered against them noting their continuing failure to engage with the proceeding.
In that regard, the Ombudsman has submitted to the Court a minute of proposed orders which updates the relief sought in the application in a proceeding and, subject to one matter in paragraph 5, I intend to make those orders.
CONCLUSION
As, pursuant to r.16.07(2) of the FCA Rules, the respondents are taken to have made the admissions recorded earlier and by reason of default of the respondents under r.13.04(2) of the Rules, default judgment will be entered for the Ombudsman against the respondents pursuant to rule 13.05(2)(c) the Rules.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 16 January 2024
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