Fair Work Ombudsman v Regional Landscape Construction Pty Ltd
[2023] FedCFamC2G 265
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
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.
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 Mr Petroff’s accrued annual leave entitlements of $3,113.98, and that Mr Hallam was involved, within the meaning of s.550(2) of the FW Act, in RLC’s contravention.
The Ombudsman originally sought declarations of contravention and orders for compensation, interest and pecuniary penalties against both respondents. However, as at 9 September 2020, strike-out action was in progress against RLC and I have been informed today by Mr Ahmed, who appears for the Ombudsman, that the company was wound up on 10 October 2022. On 7 March 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”) solely against Mr Hallam. These reasons concern that application.
Service
On 28 September 2022 the Ombudsman filed an affidavit of service evidencing personal service on Mr Hallam of the originating application and the statement of claim. Mr Hallam has not filed a notice of address for service, a response or a defence, although he appeared at directions hearings on 7 November 2022 and 1 February 2023.
On 22 March 2023 the Ombudsman filed an affidavit of service evidencing service on Mr Hallam of the current application in a proceeding and supporting affidavit.
In an email sent to the Court on 24 March 2023, Mr Hallam advised that he was unable to attend today’s hearing. When the matter was called on this afternoon, there was no appearance by or for him. The matter was then called outside the Court and he did not answer the call. I am not aware of him having sought an adjournment. In all the circumstances, I am satisfied that Mr Hallam was aware of today's hearing and did not intend to attend.
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 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 (Rules), by reason of default of the Second Respondent, pursuant to r.13.04(2) of the Rules by his 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 14 October 2022 in accordance with order 1 of the Orders of the Court dated 30 September 2022; and (d) file and serve any defence and evidence on which he will rely in accordance with order 1 of the Orders of the Court dated 7 November 2022; and
(d) file and serve any defence and evidence on which he will rely in accordance with order 1 of the Orders of the Court dated 7 November 2022.
2.Upon admissions taken to have been made by reason of the default of the Second Respondent, declarations be made that the Second Respondent was involved, within the meaning of s.550(2) of the Fair Work Act 2009 (Cth) (Act), in the contraventions 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.
…
LEGISLATION & RULES
The FW Act relevantly provides:
716Compliance 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.
…
550Involvement 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 ina 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
(1)For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; ...
…
(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 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.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 April 2023
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