Fair Work Ombudsman v Sona Peaks Pty Ltd and Anor (No.3)
[2016] FCCA 615
•11 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v SONA PEAKS PTY LTD & ANOR (No.3) | [2016] FCCA 615 |
| Catchwords: INDUSTRIAL LAW – Enforcement – application for attachment of earnings order – order for penalty not satisfied – leave to proceed with application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r. 29.11 Federal Circuit Court of Australia Act 1999 (Cth), s.78(2) |
| Fair Work Ombudsman v Sona Peaks Pty Ltd & Anor (2015) FCCA 2030 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | SONA PEAKS PTY LTD |
| Second Respondent: | DAVID PETER ANDERSON |
| File Number: | MLG 2301 of 2014 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 11 March 2016 |
| Date of Last Submission: | 11 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Winterburn, Fair Work Ombudsman |
| The First Respondent: | No appearance |
| The Second Respondent: | No appearance |
THE COURT ORDERS THAT:
The applicant have leave this day to proceed with the summons under Rule 29.11 of the Federal Circuit Court Rules 2001 (“the Rules”) and an application for attachment of earnings order pursuant to Order 72.04(3) of the Supreme Court (General Civil Procedure) Rules 2015 and pursuant to Rule 13.03A(2) (a), (b), (iv), (vi), (vii), Rule 13.03B(2)(d), and Rule 13.03C(1)(e) of the Rules.
THE COURT FINDS THAT:
The second respondent has persistently failed to comply with an order with respect to the judgment made by the Court on 24 July 2015 that the second respondent pay to the Commonwealth a pecuniary penalty of $23,715.00 within 28 days of the date of the order.
The second respondent was served with a copy of the summons herein and has had a reasonable opportunity of attending the hearing.
The second respondent is employed by Metro Trains Melbourne Pty Ltd at Melbourne in the State of Victoria as a Suburban Train Maintainer - Mechanical and is a person to whom earnings are payable or are likely to become payable by that employer.
THE COURT ORDERS THAT:
Metro Trains Melbourne Pty Ltd on each pay-day whilst the second respondent is employed by Metro Trains Melbourne Pty Ltd or until this order ceases to have effect do make payments out of the earnings of the second respondent at the rate calculated in accordance with this order to the Consolidated Revenue Fund of the Commonwealth for or towards securing payment of $24,582.99, being the amount of $23,715.00 due and unpaid in respect of the judgment and the amount of $867.99 for costs.
For the purpose of calculating the normal deduction for the purposes of paragraph 5 of this order the normal deduction rate shall be $444.00 each pay-day.
The protected earnings rate, that is, the rate below which the earnings of the second respondent may not be reduced by a payment under this order, shall be $2050.32 in respect of each pay-day.
In addition to deducting the amount required to be deducted under this attachment of earnings order Metro Trains Melbourne Pty Ltd are entitled to make a further deduction of $3.00 from the earnings of the second respondent towards the clerical and administrative costs of making payments under these orders.
Metro Trains Melbourne Pty Ltd shall, in respect of each pay-day whilst the order is in force, if the net earnings of the second respondent exceed the sum of—
(a)the protected earnings of the second respondent; and
(b)so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any previous pay-day—
pay, so far as that excess permits, to the applicant the normal deduction in relation to that pay-day and so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day.
The applicant serve the second respondent and Metro Trains Melbourne Pty Ltd with a copy of this order within 7 days of today.
The second respondent pay the applicant’s costs of this application and that liability be met in accordance with order 5.
AND THE COURT NOTES:
An attachment of earnings order does not come into force until the expiration of seven days after the day on which the order is served on the person to whom the order is directed.
A liquidator was appointed to the first respondent on 2 September 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2301 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| SONA PEAKS PTY LTD |
First Respondent
| DAVID PETER ANDERSON |
Second Respondent
(Revised from transcript)
Background
Before the Court today are proceedings commenced by the Fair Work Ombudsman (“the applicant”) against Sona Peaks Pty Ltd (“the first respondent”) and David Peter Anderson (“the second respondent”).
These reasons relate to MLG 2301 of 2014, where on 24 July 2015 the Court for reasons set out in Fair Work Ombudsman v Sona Peaks Pty Ltd & Anor [2015] FCCA 2030 at paragraphs [1] to [58] made the following orders:
“THE COURT ORDERS THAT:
1.The applicant have leave to proceed this day upon the default of the respondents pursuant to Rule 13.03A(2)(a)(b)(vii) and 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (the Rules).
THE COURT DECLARES THAT:
2.Pursuant to Rule 13.03B(2)(c) of the Rules and having regard to the admissions made in the Statement of Agreed Facts filed on 19 March 2015 (Statement of Agreed Facts) the Court declares that the First Respondent contravened:
(a) section 45 of the Fair Work Act 2009 (FW Act) by:
(i) failing to pay Rajwinder Kaur (Kaur), Rebecca White (White), Shermeka Wood (Wood), Joshua Eglite (Eglite), Gemma Maillard (Maillard) and Kuldeep Singh (Singh) minimum adult wage rates in accordance with clause 20.1 of the Restaurant Industry Award 2010 (Award) during the period from 1 October 2012 to 30 September 2013 (Audit Period);
(ii) failing to pay Sarah Graham (Graham), Aidan Lloyd (Lloyd) and Katie Gordon (Gordon) minimum junior wage rates in accordance with clause 20.3 of the Award during the Audit Period;
(iii) failing to pay Graham, Lloyd, Gordon, Wood and Eglite a casual loading in accordance with clause 13.1 of the Award during the Audit Period;
(iv) failing to pay the Employees penalty rates for work performed on a Saturday, Sunday or Public Holiday, in accordance with clause 34.1 of the Award and clause A.7.3 of Schedule A of the Award during the Audit Period;
(v) failing to pay Eglite, Wood, Maillard and Graham an additional amount for work performed between the hours of 10 p.m. to midnight, Monday to Friday, in accordance with clause 34.2(a)(i) of the Award and clause A.7.3 of Schedule A of the Award, during the Audit Period; and
(b)section 535(1) of the FW Act by failing to make and keep records including the content prescribed by the Fair Work Regulations 2009 (FW Regulations).
3.Pursuant to Rule 13.03B(2)(c) and the admissions made in the Statement of Agreed Facts that the Second Respondent was involved in each of the First Respondent’s contraventions identified in paragraph 2 above pursuant to section 550(1) of the FW Act.
THE COURT ORDERS THAT:
4.Pursuant to section 545(2)(b) of the FW Act, the First Respondent pay within 14 days of service of this order, compensation to the employees in the following amounts:
(i) to Josh Eglite the sum of $3,479.41;
(ii) to Katie Gordon the sum of $2,642.44;
(iii) to Shermeka Wood the sum of $1,187.77;
(iv) to Rebecca White the sum of $37.34;
(v) to Kuldeep Singh the sum of $1,984.92;
(vi) to Gemma Millard the sum of $486.28;
(vii) to Rajwinder Kaur the sum of $43.59;
(viii) to Sarah Graham the sum of $830.67; and
(ix) to Aidan Lloyd the sum of $509.35.
5.Pursuant to section 547(2) of the FW Act the First Respondent pay interest on the amounts set out in order 4 within 14 days of service of this order.
6.Pursuant to section 545(1) of the FW Act the First Respondent make superannuation contributions on behalf of the Employees to their respective superannuation funds in respect of the payments made pursuant to order 4 at the superannuation guarantee charge rate prescribed by applicable superannuation legislation in the following amounts within 14 days of service of this order:
(i)to Sarah Graham the sum of $78.91;
(ii) to Katie Gordon the sum of $251.03;
(iii) to Josh Eglite the sum of $330.54;
(iv) to Gemma Maillard the sum of $46.20; and
(v) to Kuldeep Singh the sum of $188.57.
7.In the event that any amounts are unable to be paid to the employees set out in paragraphs 4, 5 & 6, the amounts be paid to the Consolidated Revenue Fund of the Commonwealth.
8.Pursuant to section 546(1) of the FW Act, the First Respondent pay $118,650 in respect of the contraventions declared in paragraph 2 above.
9.Pursuant to section 546(1) of the FW Act, the Second Respondent pay $23,715 in respect of his involvement in the contraventions declared in paragraph 2 above.
10.Pursuant to section 546(3)(a) of the FW Act all penalties be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days of service of this order.
11.The applicant serve the respondents within 14 days with a copy of these orders.
12. The Applicant have liberty to apply on seven days’ notice.
AND THE COURT NOTES:
A.Rule 16.05 of the Rules.”
After those orders were made the first respondent was placed into liquidation on 2 September of 2015.[1] The orders of 24 July 2015 against the second respondent in those proceeding remain unsatisfied and have not been appealed.
[1] See s.471B of the Corporations Act 2001 (Cth).
On 1 December 2015, the applicant filed an attachment of earnings summons directed to the second respondent in accordance with rule 29.11 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The summons was supported by an affidavit of Ms Anica Winterburn affirmed 1 December 2015. The summons was listed to today.
On 7 March 2016, the applicant filed an affidavit of Mr Dennis John Domaille sworn 26 February 2016 deposing to successful service of the abovementioned summons and supporting affidavit and the requisite service documents on the second respondent, on 30 January 2016. According to that affidavit this was after a number of unsuccessful attempts between 18 December 2015 and 29 January 2016.
Today, there has been filed with leave a further affidavit of Ms Winterburn affirmed this day. This latest affidavit provided updated evidence on the contact between the applicant and the second respondent since the orders made on 23 January 2015 and today’s date.
The hearing
Today in Court Ms Winterburn has appeared on behalf of the applicant. There has been no appearance by or on behalf of the second respondent. These are enforcement proceedings for a recovery of a fine imposed by the Court. Enforcement of orders (other than orders in the family law jurisdiction) is governed by s.78(2) of the Federal Circuit Court of Australia Act 1999 (Cth) which provides:
“(2)A person in whose favour a judgment of the Federal Circuit Court of Australia is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.”
Part 29 of the Rules deals with enforcement and Rule 29.11 deals with specifically this sort of application, and provides:
“29.11 Execution generally
(1)A party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order has been made, as if it were a judgment or order of that Supreme Court.
(2) An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act.
(3)A party who wants to enforce an order in more than one State or Territory may adopt the procedures and forms of process of the Supreme Court of the State or Territory in which the judgment or order has been made.”
Given the above the summons and attachment of earnings order application relies on the provisions of order 72 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which provides:
“Order 72—Attachment of earnings
72.01 Definitions
In this Order, unless the context or subject matter otherwise requires—
attachment of earnings order means an order under Rule 72.03 or such an order as varied from time to time;
earnings in relation to a judgment debtor means any amounts payable to the judgment debtor—
(a)by way of wages or salary, including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary; or
(b)by way of pension, including—
(i)an annuity in respect of past services whether or not the services were rendered to the person paying the annuity; and
(ii)periodical payments in respect of or by way of compensation for the loss, abolition or relinquishment, or any diminution in the emoluments, of any office or employment—
but does not include any pension payable to the judgment debtor under the Social Security Act 1991 of the Commonwealth, or the Veterans' Entitlements Act 1986 of the Commonwealth;
employer in relation to a judgment debtor means a person (including the Crown in right of the State of Victoria, a Minister of the Crown in right of the State of Victoria, and any statutory authority representing the Crown in right of the State of Victoria) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the judgment debtor;
judgment includes an order;
judgment creditor means a person entitled to enforce a judgment for the payment of money other than a judgment for the payment of money into court;
judgment debtor means a person required by a judgment to pay money otherwise than into court;
net earnings in relation to a pay-day means the amount of the earnings becoming payable by a particular employer on that pay-day after making all proper deductions under income tax legislation of the Commonwealth;
normal deduction in relation to an attachment of earnings order and in relation to a pay-day means an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that pay-day and either—
(a)the last preceding pay-day; or
(b)where there is no last preceding pay-day, the date on which the employer became, or last became, the judgment debtor's employer;
pay-day means an occasion on which earnings to which the attachment of earnings order relates become payable;
protected earnings in relation to an attachment of earnings order and in relation to a pay-day means the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that pay-day and either—
(a) the last preceding pay-day; or
(b)where there is no last preceding pay‑day, the date on which the employer became, or last became, the judgment debtor's employer.
72.02 Application for attachment of earnings order
(1)A judgment creditor may apply by summons to the Court for an attachment of earnings order.
(2)The summons shall be supported by an affidavit, which may contain statements of fact based on information and belief if the grounds are set out.
(3)The summons shall be in Form 72A and the affidavit shall be in Form 72B.
(4)The summons, a copy of the affidavit and a notice in Form 72C as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor shall be served on the judgment debtor not less than 14 days before the day for hearing named in the summons.
(5)The Court shall not make an attachment of earnings order to secure the payment of money payable under a judgment where a warrant has been issued in that case committing the judgment debtor to prison under the Imprisonment of Fraudulent Debtors Act 1958 and has not been executed, but in such case the Court may discharge the warrant with a view to making an attachment of earnings order instead.
72.03 Making of order
Where the Court is satisfied that the judgment debtor is a person to whom earnings are payable or are likely to become payable and—
(a)that at the time when the application was made there was due and unpaid in respect of the judgment which the judgment creditor is entitled to enforce an amount of not less than $20; or
(b)that the judgment debtor has persistently failed to comply with an order with respect to the judgment—
the Court may order a person who appears to the Court to be the judgment debtor's employer in respect of those earnings or part of those earnings to make out of those earnings or that part of those earnings payments in accordance with Rule 72.07.
72.04 Attendance of or information about judgment debtor
(1)In relation to an attachment of earnings order or any application for such an order the Court may order that—
(a)the judgment debtor attend before the Court at a time specified in the order to be examined concerning the judgment debtor's means and ability to comply with the judgment;
(b)the judgment debtor state to the Court or furnish to the Court within the time fixed by the Court a statement signed by the judgment debtor setting forth—
(i) the name and address of the judgment debtor's employer or, if the judgment debtor has more employers than one, of each of the judgment debtor's employers;
(ii) particulars as to the judgment debtor's earnings;
(iii) such other particulars as the Court thinks necessary to enable the enforcement of the order; or
(c)any person who appears to the Court to be indebted to the judgment debtor or to be the employer of the judgment debtor give to the Court a statement signed by that person or on that person's behalf containing such particulars as are specified in the direction of that person's indebtedness to the judgment debtor that became payable by that person during a specified period.
(2)A document purporting to be a statement referred to in paragraph (1) shall be received in evidence in any proceedings for the enforcement of the order.
(3)Where on an application for an attachment of earnings order the Court is satisfied—
(a)that the judgment debtor has been served with a copy of the summons;
(b)that the judgment debtor has had a reasonable opportunity of attending the hearing;
(c)that the judgment debtor is employed by an ascertained employer; and
(d)as to the earnings of the judgment debtor—
the Court may make an attachment of earnings order in the absence of the judgment debtor.
(4)For the purpose of this Rule, the Court may act upon evidence by or on behalf of the judgment debtor's employer or by the judgment debtor's spouse or any statement or information furnished under paragraph (1).
(5)Where the Court considers an application in the absence of the judgment debtor or the judgment debtor's spouse and the Court has before it sufficient evidence in the opinion of the Court upon which to specify a protected earnings rate and a normal deduction rate, the Court shall so specify those rates, but where the Court does not have sufficient evidence, the Court may without specifying such rates make an order requiring the payment by the judgment debtor's employer to the judgment creditor of such amount as the Court thinks reasonable having regard to the circumstances of the judgment debtor so far as they are known to the Court.
(6)Nothing in paragraph (1)(a) shall affect any other mode of enforcing the attendance of the judgment debtor before the Court.
(7) An application for an order under paragraph (1)—
(a) shall be made by summons in Form 72D; and
(b) shall be supported by an affidavit in Form 72E.
(8)An order under paragraph (1) shall be in Form 72F or 72G, whichever is appropriate.
72.05 Contents of order
(1)An attachment of earnings order shall specify either generally or in relation to any particular pay-day or pay-days the normal deduction rate, being the rate at which the Court considers it to be reasonable that the earnings of the judgment debtor should be applied in satisfying the judgment to which the order relates but not exceeding a rate that appears to the Court to be necessary for the purpose of—
(a)securing payment of the amount due and unpaid under the judgment; and
(b)securing payment within a reasonable time of any costs ordered by the Court to be paid by the judgment debtor.
(2)An attachment of earnings order may specify—
(a)a higher normal deduction rate to apply for a specified number of pay-days after the order comes into force; and
(b)a lower normal deduction rate to apply to subsequent pay-days.
(3)An attachment of earnings order shall also specify the protected earnings rate, being the rate below which, having regard to the resources and needs of the judgment debtor and of any other person for whom the judgment debtor must or reasonably may provide, the Court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under the order.
(4)Unless the Court—
(a)has received from the judgment debtor a completed form pursuant to the notice in Form 72C given under Rule 72.02(4) as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor; or
(b)has examined the judgment debtor as to those matters—
the Court shall not under paragraph (3) specify as the protected earnings rate a rate that is less than 80 per cent of the net earnings of the judgment debtor.
(5)An attachment of earnings order shall—
(a)provide that the payments under the order are to be made to the person specified in the order;
(b)contain such particulars as the Court thinks necessary for enabling the person to whom the order is directed to identify the judgment debtor.
(6) An attachment of earnings order shall be in Form 72H.
72.06 Service of order
(1) An attachment of earnings order shall be served—
(a) on the judgment debtor; and
(b) on the person to whom the order is directed.
(2)There shall also be served on the person to whom an attachment of earnings order is directed—
(a)a notice informing the person of the effect of the order and of that person's obligations under this Order; and
(b)two forms of notice that the judgment debtor is not in that person's employ.
(3)A notice under paragraph (2)(a) shall be in Form 72J and a notice under paragraph (2)(b) shall be in Form 72K.
(4)The order shall not come into force until the expiration of seven days after the day on which the order is served on the person to whom the order is directed.
72.07 Employer to make payments
(1)An employer to whom an attachment of earnings order is directed shall, in respect of each pay-day whilst the order is in force, if the net earnings of the judgment debtor exceed the sum of—
(a) the protected earnings of the judgment debtor; and
(b)so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day—
pay, so far as that excess permits, to the person specified in the order the normal deduction in relation to that pay-day and so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day.
(2)A payment made by an employer under paragraph (1) shall be a valid discharge to the employer as against the judgment debtor to the extent of the amount paid.
(3)An employer making payments in accordance with an attachment of earnings order—
(a)is entitled to deduct from the earnings of the judgment debtor in addition to any other amount an allowance of $3 in respect of each payment towards the clerical and administrative costs of making payments under the order; and
(b)shall give to the judgment debtor notice of the amount deducted.
72.08 Attachment of earnings in place of other orders
Where an application is made to the Court to enforce a judgment for the payment of money otherwise than into Court, the Court may, instead of making any other order, make an attachment of earnings order.
72.09 Execution after attachment of earnings
Unless the Court otherwise orders, where an attachment of earnings order is in force—
(a) no warrant of execution shall issue; and
(b)no order shall be made for the enforcement of the judgment to which the attachment of earnings order relates.
72.10 Discharge or variation of order
(1)Where an attachment of earnings order is in force the Court, on the application of the judgment creditor or the judgment debtor, may discharge, suspend or vary the order.
(2)An order suspending or varying an attachment of earnings order shall be served on—
(a) the respondent to the application; and
(b)the person to whom the attachment of earnings order is directed.
(3)An order suspending or varying an attachment of earnings order shall not come into force until the expiration of seven days after the day on which the order is served on the person to whom it is directed.
72.11 Cessation of attachment of earnings order
(1) An attachment of earnings order shall cease to have effect—
(a) upon being discharged under Rule 72.10; or
(b)unless the Court otherwise orders, upon the making of any other order for the recovery of the moneys owing under the judgment in relation to which the attachment of earnings order was made.
(2)Where an attachment of earnings order ceases to have effect, the Prothonotary shall forthwith give notice accordingly to the person to whom the order was directed.
(3)A notice under paragraph (2) shall be in Form 72L.
(4)Where an attachment of earnings order ceases to have effect, the person to whom the order is directed shall not incur any liability in consequence of that person treating the order as still in force at any time before the expiration of seven days after the day on which the notice required by paragraph (2) or a copy of the order discharging the attachment of earnings order, as the case may be, is served on that person.
72.12 Two or more orders in force
Where earnings become payable to a judgment debtor and there are in force two or more attachment of earnings orders, whether made under these Rules or otherwise, in relation to those earnings, the person to whom the orders are directed—
(a)shall comply with those orders according to the respective dates on which they took effect and shall disregard any order until the earlier order has been complied with; and
(b)shall comply with any order as if the earnings to which the order relates were the residue of the earnings of the judgment debtor after the making of any payment under an earlier order.
72.13 When varied order taken to be made
For the purpose of Rule 72.12, an attachment of earnings order which has been varied under Rule 72.10 shall be taken to have been made as so varied on the day upon which the attachment of earnings order was made.
72.14 Notice to judgment debtor of payments
(1)A person who makes a payment in compliance with an attachment of earnings order shall give to the judgment debtor a notice specifying the particulars of that payment.
(2)Where a person served with an attachment of earnings order directed to that person is not the employer of the judgment debtor at the time of service of the order, that person shall, forthwith after service of the order, give notice in writing accordingly to the Prothonotary.
(3)Where a person served with an attachment of earnings order directed to that person is the employer of the judgment debtor at the time of service of the order but ceases to be the judgment debtor's employer at any time thereafter, that person shall, forthwith after ceasing to be the judgment debtor's employer, give notice in writing accordingly to the Prothonotary.
72.15 Determination of earnings
(1)The Court shall, on the application of the person to whom an attachment of earnings order is directed, determine whether payments to the judgment debtor of a particular class or description specified in the application are earnings for the purpose of that order.
(2)A person to whom an attachment of earnings order is directed who makes an application under paragraph (1) shall not incur any liability for failing to comply with the order with respect to any payments of the class or description specified in the application that are made by that person to the judgment debtor while the application, or any appeal from an order made on the application, is pending.
(3)Paragraph (2) does not apply in respect of any payment made after—
(a) an application is withdrawn; or
(b)an appeal from an order made on the application is abandoned.
72.16 Service
An order or a document that is required or permitted to be served on a person under this Order may be served on that person—
(a) personally;
(b)by delivering a copy at the usual or last known place of residence or business of that person to some person who apparently resides or is employed there and is apparently over the age of 16 years; or
(c)by sending a copy to the person at the person's usual or last known place of residence or business by registered post.”
Today Ms Winterburn on behalf of the applicant made an oral application to proceed in the absence of the second respondent with the enforcement summons and the application for the attachment of earnings order.
For that purpose the relevant rules are Rule 13.03A, Rule 13.03B and Rule 13.03C of the Rules, which provide:
“Rule 13.03A:
(1) For rule 13.03B, 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; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2) For rule 13.03B, 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; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
Rule 13.03B
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages--grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate--costs; or
(c) if the proceeding was commenced 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; or
(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
(3)The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i) service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b) an affidavit for the debt or liquidated damages in accordance with the approved form.
(4)Unless the Court otherwise orders, if a respondent to a cross-claim is in default:
(a)a judgment or decision on any claim, question or issue in the proceeding on the originating process; or
(b) any other cross-claim in the proceeding;
is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.
(5) In subrule (4):
decisionincludes a decision by consent.
judgmentincludes a judgment by default or by consent.
(6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
Rule 13.03C
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c)if the absent party is an applicant--dismiss the application;
(d)if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.”
The Rules provide the Court with authority to give judgment or to make any other order against the second respondent. I am satisfied the second respondent has not satisfied the applicant’s claim. The orders made 24 July 2015 have not been complied with. Having regard to Rules 13.03A(2)(a), (b), (iv), (vi), (vii), the second respondent is in default for the purposes of Rules 13.03B(2)(d). In the face of the second respondent’s failure to appear this day and the defaults referred to above, a combination of Rules 13.03B(2)(d) and/or 13.03C(1)(e) provides the Court with ample authority to give judgment or make any other order against the second respondent.
In submissions before the Court today, given the nature of the order sought and that the second respondent has received notice of the enforcement summons, leave was granted to proceed with consideration of the enforcement summons having regard to order 72.04(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) which provides the Court with a discretion to proceed with the application for the attachment of earnings order in the second respondent’s absence. Order 72.04(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) states:
“72.04 Attendance of or information about judgment debtor
…
(3)Where on an application for an attachment of earnings order the Court is satisfied—
(a)that the judgment debtor has been served with a copy of the summons;
(b)that the judgment debtor has had a reasonable opportunity of attending the hearing;
(c)that the judgment debtor is employed by an ascertained employer; and
(d)as to the earnings of the judgment debtor—
the Court may make an attachment of earnings order in the absence of the judgment debtor.”
Given the defaults by the second respondent, the material that the applicant filed, and the relevant sections of the Rules, the applicant was granted leave to proceed with the application this day.
Ms Winterburn identified the material the applicant relied upon, which included:
a)the attachment of earnings summons (exhibit A1);
b)her affidavit filed 1 December 2015 (exhibit A2);
c)the affidavit of service filed 7 March 2016 (exhibit A3);
d)her affidavit affirmed 11 March 2016 (exhibit A4);
e)a draft worksheet for the purposes of calculating the attachment of earnings order (exhibit A5);
f)a form of draft order (exhibit A6); and
g)a draft bill of costs (exhibit A7).
The material before the Court makes clear that the second respondent’s employer, Metro Trains Melbourne Pty Ltd, has produced material to both the applicant and to the Court, pursuant to a subpoena filed
1 December 2015, which makes clear that the second respondent has been employed since May 1996 and for the financial year ending June 2015 was on a gross salary of $108,791.
Orders 72.04(4) and 72.04(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) also provides:
“(4)For the purpose of this Rule, the Court may act upon evidence by or on behalf of the judgment debtor's employer or by the judgment debtor's spouse or any statement or information furnished under paragraph (1).
(5)Where the Court considers an application in the absence of the judgment debtor or the judgment debtor's spouse and the Court has before it sufficient evidence in the opinion of the Court upon which to specify a protected earnings rate and a normal deduction rate, the Court shall so specify those rates, but where the Court does not have sufficient evidence, the Court may without specifying such rates make an order requiring the payment by the judgment debtor's employer to the judgment creditor of such amount as the Court thinks reasonable having regard to the circumstances of the judgment debtor so far as they are known to the Court.”
For the purposes of order 72 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the applicant has applied for an attachment of earnings order by summons, supported by the affidavit material that I have referred to. The summons, affidavit and notices have been served on the second respondent not less than 14 days prior to today’s date. The affidavits of Ms Winterburn referred to earlier show that there is no extant warrant for the purposes of the Imprisonment of Fraudulent Debtors Act 1958 (Vic). The orders of 24 July 2015, as against the second respondent, remain outstanding, and his employer, Metro Trains Melbourne Pty Ltd can be ordered to make (out of his earnings) payments in satisfaction of the outstanding judgment.
All of the affidavit evidence before the Court satisfies me that the second respondent has been served with the summons and had a reasonable opportunity to attend. The second respondent is employed by Metro Trains Melbourne Pty Ltd, and there is sufficient evidence of his earnings before the Court. The Court is therefore satisfied it can proceed to make an attachment earnings order in his absence.
In fixing the amount, regard has been given to the material before the Court and the second respondent’s gross salary and net earnings which I find to be $2562.89. I find the protected earnings rate to be in the terms set out in exhibit A5 at $2050.32. I find the normal deduction rate for the purposes of this matter to be $444, with an administrative cost of $3. This will not come into effect until the expiration of seven days after the day on which the order is served. The orders are to be served on the second respondent and Metro Trains Melbourne Proprietary Limited within seven days of today’s date.
I am, in these proceedings, also asked to make an order for costs.
For that purpose, I have been handed a bill of costs marked as exhibit A7. I have had the benefit of hearing from Ms Winterburn in support of such an order. These are enforcement proceedings which have been taken because of the defalcation by the second respondent of his obligations under the orders made on 24 July 2015. Ms Winterburn’s submissions have addressed why having regard to the provisions of section 570 of the Fair Work Act 2009 (Vic) (“the FW Act”), the Court should find one of the justifying circumstances contained in section 570(2) of the FW Act to make an order for costs.
On the basis of those submissions and that I am satisfied these proceedings have been necessitated by the second respondent’s failure to comply with the orders made in July 2015. The second respondents conduct in that regard amounts to (on the material before the Court) an unreasonable act or omission and I am therefore satisfied it is an appropriate matter to make an order for costs. The applicant’s calculations as to costs were contained in exhibit A6 and those costs will be payable in the terms set out in the orders made this day.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 22 March 2016
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