Fair Work Ombudsman v Regional Landscape Construction Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Regional Landscape Construction Pty Ltd [2023] FedCFamC2G 265

File number(s): SYG 1303 of 2022
Judgment of: JUDGE CAMERON
Date of judgment: 27 March 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
Cases cited:

Sony Corporation v Costaneo [2012] FCA 153

Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1
Division: Fair Work
Number of paragraphs: 17
Date of hearing: 27 March 2023
Place: Sydney
Solicitor for the Applicant: Mr T. Ahmed (Fair Work Ombudsman)
For the First Respondent: The first respondent did not participate in the proceeding
For the Second Respondent: No appearance by or on behalf of the second respondent

ORDERS

SYG 1303 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

REGIONAL LANDSCAPE CONSTRUCTION PTY LTD (ACN 606 659 634)

First Respondent

BRADLEY MARK HALLAM

Second Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

27 MARCH 2023

THE COURT DECLARES THAT:

1.Upon admissions taken to have been made by reason of the default of the second respondent, the second respondent was involved, within the meaning of s.550(2) of the Fair Work Act 2009 (Cth) (“Act”) in the contravention by the first respondent of s.716(5) of the Act by failing to comply with the compliance notice personally served on the second respondent on 17 March 2022.

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

  1. On 5 September 2022 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, Regional Landscape Construction Pty Ltd, (“RLC”) to obey a compliance notice dated 11 March 2022 (“Compliance Notice”) which the Ombudsman served on it in respect of unpaid accrued annual leave entitlements owing to its employee, Cory Petroff, whose employment terminated on 31 December 2020. The second respondent, Bradley Hallam, is and at all relevant times was, RLC’s sole director and shareholder.

  2. In a statement of claim filed with the initiating application, the Ombudsman alleged that RLC 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…

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Details
Case
[2023] FedCFamC2G 265
Decision Date

CaseChat Overview and Summary

The matter before the Court involves the Fair Work Ombudsman as the applicant and Regional Landscape Construction Pty Ltd as the respondent, with Mr Hallam being the director and shareholder of the respondent company. The dispute centres on allegations that Regional Landscape Construction Pty Ltd contravened the Fair Work Act 2009 (FW Act) by failing to pay an employee, Mr Petroff, the applicable minimum rates of pay as outlined in the Construction, Forestry, Maritime, Mining and Energy Union Australian Building Construction Industry Award 2010. The Federal Circuit and Family Court of Australia is adjudicating this case.

The central legal issue the Court had to determine was whether the failure of Mr Hallam, the sole director and shareholder of Regional Landscape Construction Pty Ltd, to file a notice of address for service, a response, or a defence constituted an admission of the allegations made in the statement of claim. The Court had to consider whether the allegations could be treated as admitted under rule 16.07 of the Federal Court Rules 2011 (FCA Rules) and whether the Court could proceed to grant the relief sought by the Fair Work Ombudsman, including a declaration of contravention and potentially a pecuniary penalty.

The Court found that Mr Hallam's non-compliance with the procedural rules, specifically his failure to respond or defend the allegations, warranted treating the allegations as admitted. This conclusion was drawn from the precedent set in Sony Corporation v Costaneo, where it was held that allegations in a statement of claim to which no defence had been filed were to be treated as admitted. As service had been properly effected and no response was filed, the allegations against Mr Hallam were deemed admitted, leading to a declaration of contravention as sought by the Ombudsman. The Court also noted that the Ombudsman had withdrawn the request for a pecuniary penalty, satisfied with the declaration obtained.

In light of the admitted contraventions and the Ombudsman's satisfaction with the declaration, the Court made a declaration of contravention against Mr Hallam, as sought in the Ombudsman's application. The Court did not impose a pecuniary penalty as it had been withdrawn by the Ombudsman. The decision underscores the importance of compliance with procedural rules in legal proceedings and the consequences of failing to do so.

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

Although these reasons are based on Mr Hallam’s non-compliance with the Rules, I record that on 7 November 2022 the Court also made the following order in this proceeding:1. The second respondent file and serve any defence and evidence on which he will rely by 27 January 2023. APPLICANT’S EVIDENCE The Ombudsman relied upon the affidavit of his solicitor, Mr Ahmad, affirmed 22 March 2023. Mr Ahmed deposed that on 9 September 2022 he performed an Equifax company search of RLC. A copy of the ASIC company extract was annexed to his affidavit and relevantly showed that Mr Hallam was at that time the sole director and shareholder of RLC. CONSIDERATION Mr Hallam is in default under the Rules by failing to file a notice of address for service, a response and a defence and the Court is empowered by r.13.05(2)(c) of the Rules to give judgment against him for such relief as the Ombudsman appears to be entitled to on the statement of claim and as the Court considers it has power to grant. In Sony Corporation v Costaneo [2012] FCA 153, Yates J held that the allegations made in a statement of claim to which no defence had been filed were to be treated as admitted under r.16.07 of the FCA Rules. In this case, where service of relevant documents has been proved and no response or defence has been filed by Mr Hallam, the allegations against him are also to be taken as admitted. That is to say, it is taken to have been admitted by Mr Hallam that RLC contravened s.716(5) of the FW Act in the manner alleged, that he was involved in the contravention and that, as a consequence, he is taken to have contravened s.716(5) of the FW Act.CONCLUSION In all the circumstances, it is appropriate to make the declaration of contravention that the Ombudsman seeks in relation to Mr Hallam: cf Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 at 8–10 [9], [12]–[14], [19], 21–22 [62]–[69]. I record that, by leave, the Ombudsman has withdrawn para.20(d) of the statement of claim in which he prayed that a pecuniary penalty be imposed on Mr Hallam. I am advised by Mr Ahmed that the Ombudsman is satisfied in the circumstances with securing a declaration against Mr Hallam. I note that I have been advised by Mr Hallam that the money outstanding to Mr Petroff has been paid. I make the declaration sought in prayer two of the Ombudsman’s application in a proceeding dated 7 March 2023.

Decision

Reasons for decision

In Sony Corporation v Costaneo [2012] FCA 153, Yates J held that the allegations made in a statement of claim to which no defence had been filed were to be treated as admitted under r.16.07 of the FCA Rules. In this case, where service of relevant documents has been proved and no response or defence has been filed by Mr Hallam, the allegations against him are also to be taken as admitted. That is to say, it is taken to have been admitted by Mr Hallam that RLC contravened s.716(5) of the FW Act in the manner alleged, that he was involved in the contravention and that, as a consequence, he is taken to have contravened s.716(5) of the FW Act.CONCLUSION In all the circumstances, it is appropriate to make the declaration of contravention that the Ombudsman seeks in relation to Mr Hallam: cf Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 at 8–10 [9], [12]–[14], [19], 21–22 [62]–[69]. I record that, by leave, the Ombudsman has withdrawn para.20(d) of the statement of claim in which he prayed that a pecuniary penalty be imposed on Mr Hallam. I am advised by Mr Ahmed that the Ombudsman is satisfied in the circumstances with securing a declaration against Mr Hallam. I note that I have been advised by Mr Hallam that the money outstanding to Mr Petroff has been paid. I make the declaration sought in prayer two of the Ombudsman’s application in a proceeding dated 7 March 2023.

Ratio Decidendi

Legal Principle Established

The Ombudsman relied upon the affidavit of his solicitor, Mr Ahmad, affirmed 22 March 2023. Mr Ahmed deposed that on 9 September 2022 he performed an Equifax company search of RLC. A copy of the ASIC company extract was annexed to his affidavit and relevantly showed that Mr Hallam was at that time the sole director and shareholder of RLC. CONSIDERATION Mr Hallam is in default under the Rules by failing to file a notice of address for service, a response and a defence and the Court is empowered by r.13.05(2)(c) of the Rules to give judgment against him for such relief as the Ombudsman appears to be entitled to on the statement of claim and as the Court considers it has power to grant. In Sony Corporation v Costaneo [2012] FCA 153, Yates J held that the allegations made in a statement of claim to which no defence had been filed were to be treated as admitted under r.16.07 of the FCA Rules. In this case, where service of relevant documents has been proved and no response or defence has been filed by Mr Hallam, the allegations against him are also to be taken as admitted. That is to say, it is taken to have been admitted by Mr Hallam that RLC contravened s.716(5) of the FW Act in the manner alleged, that he was involved in the contravention and that, as a consequence, he is taken to have contravened s.716(5) of the FW Act.CONCLUSION In all the circumstances, it is appropriate to make the declaration of contravention that the Ombudsman seeks in relation to Mr Hallam: cf Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 at 8–10 [9], [12]–[14], [19], 21–22 [62]–[69]. I record that, by leave, the Ombudsman has withdrawn para.20(d) of the statement of claim in which he prayed that a pecuniary penalty be imposed on Mr Hallam. I am advised by Mr Ahmed that the Ombudsman is satisfied in the circumstances with securing a declaration against Mr Hallam. I note that I have been advised by Mr Hallam that the money outstanding to Mr Petroff has been paid. I make the declaration sought in prayer two of the Ombudsman’s application in a proceeding dated 7 March 2023.