Fair Work Ombudsman v Sempha Solutions Pty Ltd - [2024] FedCFamC2G 1295

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Sempha Solutions Pty Ltd [2024] FedCFamC2G 1295

File number(s): MLG 2274 of 2024

Judgment of: JUDGE MANSINI

Date of judgment: 26 November 2024

Catchwords: INDUSTRIAL LAW — retail industry - failure to comply with compliance notice – application for default judgment against company operating adult retail store trading as La La Land and its sole director – where Respondents have not entered an appearance nor participated in proceedings despite numerous opportunities – default judgment as to contraventions of the Fair Work Act 2009 (Cth) – declarations made – remaining forms of relief sought to be subject of further programming.

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.13.05 13.06.

General Retail Industry Award 2020 cl. 11, 17, 21,22

Cases cited:
Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433

Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882

Luna Park v Bose [2006] FCA 94

Division: Division 2 General Federal Law

Number of paragraphs: 28

Date of hearing: 26 November 2024

Place: Melbourne

Solicitor for the Applicant: Australian Government Solicitor

The Respondent: No appearance
ORDERS

MLG 2274 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
SEMPHA SOLUTIONS PTY LTD (ACN 609 049 443)

Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

26 NOVEMBER 2024

THE COURT DECLARES THAT:
1.The First Respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) (Act) by its failure to comply with the statutory compliance notice dated 5 October 2023.
2.The Second Respondent was involved in the contravention declared at 1, within the meaning of s.550(2) of the Act.

THE COURT ORDERS THAT:
3.By 4.00pm on 28 November 2024, the Applicant serve a copy of these declarations and associated reasons on the First Respondent and Second Respondent.
4.By 4.00pm on 3 December 2024, the Applicant file an affidavit of service evidencing service in accordance with order 3.
5.The questions of what (if any) further relief be ordered will be subject of further hearing and programming 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 Mansini
IN SUMMARY

Before the Court is an application by the Fair Work Ombudsman (FWO) in relation to an adult retail business (Sempha Solutions Pty Ltd, operated under the trading name “La La Land” (First Respondent)) which did not comply with a statutory compliance notice.
These reasons explain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FedCFamC2G 1295
Decision Date: 26 November 2024

CaseChat Overview and Summary

In the matter of Fair Work Ombudsman v Sempha Solutions Pty Ltd, the Fair Work Ombudsman sought default judgment against the company and its director for non-compliance with a compliance notice. The company operated an adult retail store under the name La La Land and faced allegations of contraventions of the Fair Work Act 2009 (Cth). The court was tasked with determining whether the respondents had contravened the Act and, if so, what form of relief should be granted.

The primary legal issue was whether the respondents had contravened the Fair Work Act 2009 (Cth) by failing to comply with a compliance notice issued by the Fair Work Ombudsman. Additionally, the court had to consider the appropriate form of relief, including whether to grant a default judgment against the respondents, who had not entered an appearance nor participated in the proceedings despite multiple opportunities.

The court found that the respondents had indeed contravened the Act and granted a declaration to that effect. The seriousness of the matter warranted the declaration, particularly to record the court's disapproval of the contravening conduct. Given the respondents' lack of engagement with the proceedings, the court decided to afford them further opportunity to prepare and file written evidence and submissions regarding potential remedial orders and pecuniary penalties. A program will be established to address these matters in further hearings.

The court ordered that the respondents be declared to have contravened the Fair Work Act 2009 (Cth). While a default judgment was granted regarding the contraventions, the questions of what, if any, remedial orders should be made and/or pecuniary penalties imposed remained subject to further programming and would be addressed in subsequent hearings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court has a broad discretion to make a declaration. I consider this an appropriate case for declaratory relief in relation to each determined contravention, if for no other reason than to record the Court’s disapproval of the contravening conduct. CONCLUSION For the above reasons, the Respondents are declared to have contravened the Act. The Respondents have so far elected not to engage with these proceedings at all. Having regard to the seriousness of the matter, and in all of the circumstances, it is appropriate that the Respondents be afforded further opportunity to consider, prepare and file written evidence and submissions as to the questions of what, if any, remedial orders ought be made and/or pecuniary penalty(ies) ought be imposed for the contraventions. A program will be ordered so that the parties may address the Court about those matters.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLG 2274 of 2024
Judgment of:	JUDGE MANSINI
Date of judgment:	26 November 2024
Catchwords:	INDUSTRIAL LAW — retail industry - failure to comply with compliance notice – application for default judgment against company operating adult retail store trading as La La Land and its sole director – where Respondents have not entered an appearance nor participated in proceedings despite numerous opportunities – default judgment as to contraventions of the Fair Work Act 2009 (Cth) – declarations made – remaining forms of relief sought to be subject of further programming.
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.13.05 13.06. General Retail Industry Award 2020 cl. 11, 17, 21,22
Cases cited:	Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 Fair Work Ombudsman v Mobile Food Vans & Trucks Pty Ltd [2021] FCCA 882 Luna Park v Bose [2006] FCA 94
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of hearing:	26 November 2024
Place:	Melbourne
Solicitor for the Applicant:	Australian Government Solicitor
The Respondent:	No appearance

MLG 2274 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	SEMPHA SOLUTIONS PTY LTD (ACN 609 049 443) Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	26 NOVEMBER 2024