Fair Work Ombudsman v Trek North Tours

[2015] FCCA 1800

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v TREK NORTH TOURS & ANOR [2015] FCCA 1800

Catchwords:
PRATICE AND PROCEDURE – Whether respondents are in default – default hearing.

Legislation: 

Fair Work Act2009 (Cth), ss.712, 716
Federal Circuit Court Rules2001, rr.13.03C(1), 13.03C(1)(c), 13.03A(2), 13.03C(2)

Applicant: FAIR WORK OMBUDSMAN

First Respondent: ACN 156 455 828 PTY LTD TRADING AS TREK NORTH TOURS

Second Respondent: LEIGH ALAN JORGENSEN

File Number: BRG 1009 of 2014

Judgment of: Judge Jarrett

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Brisbane

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Clayden

Solicitors for the Applicant: Office of the Fair Work Ombudsman

No appearance for the Respondents

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1009 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

ACN 156 455 828 PTY LTD TRADING AS TREK NORTH TOURS

First Respondent  

LEIGH ALAN JORGENSEN

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. These proceedings were commenced by an application that was filed on 17 November, 2014.  The application seeks relief pursuant to the Fair Work Act2009 (Cth). The particulars of the relief claimed are set out in the statement of claim that was filed on 17 November, 2014.

2. The statement of claim pleads some formal matters relating to the applicant and his standing to bring these proceedings.  The statement of claim pleads that the first respondent carried on a business under the name of Trek North Tours from an address in Cairns.  The second respondent, the statement of claim pleads, is the sole director and company secretary of the first respondent, and was otherwise responsible for the conduct of the first respondent and its business. 

3. The statement of claim alleges that there were five people named in the statement of claim who were employees of the first respondent over certain periods of time.  Those employees, it is said, made complaints to the applicant alleging that the first respondent had failed to pay them wages in accordance with their entitlements under the General Retail Industry Award 2010. 

4. The statement of claim pleads that the applicant provided to the first respondent a notice to produce documents or records pursuant to s.712 of the Fair Work Act on various dates. The first respondent is alleged to have failed to comply with the notice to produce documents or records.

5. Some compliance notices were then issued, it seems, pursuant to s.716 of the Fair Work Act. Those compliance notices have not been satisfied by the first respondent The statement of claim alleges that the second respondent is liable for the first respondent’s contraventions and, in particular, its failure to comply with the notices to produce and the notices to comply, and the statement of claim seeks orders against both respondents consequent upon those alleged contraventions.

6. The matter came before me on 15 December last year.  The second respondent appeared by telephone, both on his own behalf and on behalf of the first respondent.  I pointed out to him at that time that he had no entitlement to appear for the first respondent, and that he needed to address that issue, one way or another.

7. On that day I made an order that the first and second respondents file and serve any response and defence to the application and statement of claim by 19 January, 2015.  I made a direction for the applicant to file a reply, if any, and there was an adjournment to 4 February, 2015. 

8. On 19 January, 2015 the respondents filed a response.  It is drawn by a person who is plainly not a lawyer, and it raises a number of issues.  In paragraph number 1 it says that the first respondent:

   ...SEEKS THAT THE EVIDENCE THAT FWA RELY ON FOR ITS CALCULATION BE THROWN OUT AS NOTHING MORE THAN CIRCUMSTANTIAL EVIDENCE THAT CAN BE RE-CREATED BY ANYONE WITH A COMPUTER.

9. The next ground of the response sets out that the first respondent:

   ...SEEKS THAT THE STATEMENTS GIVEN BY THE INDIVIDUALS RELEVANT TO THIS CASE BE DISMISSED AS BIASED AND INACCURATE HEARSAY.  THESE PEOPLE HAVE COLLUDED AND CONSPIRED AGAINST THIS COMPANY OUT OF PURE SPITE, SADLY FUELLED BY MISREPRESENTATION OF SOME VINDICTIVE FAIR WORK INSPECTORS.

10. The third ground of the response says this.  The first respondent and the second respondent:

    ...WOULD LIKE A PUBLIC APOLOGY FROM FWA FOR GROSSLY DEFAMING ITS BUSINESS FOLLOWING HUGE AND COMMERCIALLY (AND PERSONALLY) DAMAGING MEDIA COVERAGE GIVEN TO THIS CASE BEFORE IT HAS EVEN SEEN A DAY IN COURT.  ACN 156455828 WILL MOST PROBABLY HAVE TO BE DEREGISTERED DUE TO THE DAMAGES CAUSED BY FWA.

11. The matter came before the Court on 4 February this year.  I ordered then that the applicant file and serve any further affidavits of evidence-in-chief upon which it intended to rely in the proceedings no later than a date in February, and I adjourned the application to 23 February for directions.  There was no appearance by the respondents on that date.  I ordered that, in the event that either respondent failed to appear on the next occasion, the Court might proceed to determine the application in their absence. 

12. On 23 February there was no appearance by the respondents.  I vacated order 4 of the orders made on 4 February.  I directed that the applicant file and serve an affidavit of evidence-in-chief by each witness upon which it intended to rely in the proceedings by 4:00pm on 18 March.  I directed that the respondents file their evidence-in-chief by 22 April.  I referred the matter to mediation, and I otherwise adjourned it to 25 May for directions. 

13. The applicant filed evidence.  The respondents did not.  The mediation failed.

14. The application came back before me on 25 May, 2015 for directions. There was again no appearance for the respondents. I listed the matter for 1 June, 2015 at 9:30am for a default hearing. I noted the order that, in the event that the first and second respondents failed to appear on 1 June, in a way provided for in the Federal Circuit Court Rules, then the applicant would be at liberty to seek default judgment in the proceedings.

15. On 1 June the application returned to Court.  This time a solicitor purported to appear for the respondents.  I struck out the respondents’ response on the basis that it was embarrassing, scandalous, and was not a proper response to the statement of claim.  It was plainly scandalous, in that it asserted a conspiracy between the persons named in the statement of claim as employees, and/or the Fair Work inspectors who were involved in this case.  It is inappropriate that such a document, with such allegations, should remain active on the court file.

16. I directed that the respondents file and serve a response and a defence to the statement of claim by 4:00pm on 5 June.  I refreshed my directions about the respondents filing any affidavits of evidence-in-chief that they might wish to rely on by 5 June, and I listed the matter for hearing today for further directions.  I also ordered that, in the event that the respondents had not complied with any direction, the matter should proceed to a default hearing.

17. On 9 June a document headed Defence of the First Defendant, and then later in the same document headed Defence of the Second Defendant, was filed.  No other documents and no affidavits purporting to be filed on behalf of the respondents have been filed. 

18. The defences address certain parts of the statement of claim.  Having regarded to the defences, it seems that the defendants have chosen to respond to those parts of the statement of claim with which they take issue.  So insofar as the first respondent is concerned, there is no issue taken with what is alleged in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 or 9 of the statement of claim.

19. Issue is taken with what is alleged in paragraph 10.  Paragraph 10 sets out an allegation that five named individuals were employees of the first respondent.  Of the first three employees, the respondents deny having employed them and says that there is no record of them on:

    ...our wage documents or rosters.  Employees are given a weekly payslip.

    The respondents seem to accept that the last two named individuals in paragraph 10 were, indeed, employees of the first respondent. 

    No issue was taken with paragraph 11 of the statement of claim, but the first respondent denies paragraph 12. Paragraph 12 is an allegation that the first respondent was, at all relevant times, an entity to which the Fair Work Act applied in relation to the employment of the employees. However, having regard to the statement of claim and its allegations in paragraphs 4, 5, 6, 7 and 8, and the plea with respect to paragraphs 10(a), (b) and (c), it seems that the real issue raised by the denial of the allegation in paragraph 12 is that those people named in paragraphs 10(a), (b) and (c) of the statement of claim were, in fact, employees of the respondent. The first respondent does not seem to be suggesting that the Fair Work Act did not apply to it.

20. The first respondent takes issue with paragraph 13, which is an allegation that the applicant caused a notice to produce records or documents to be issued to the first respondent in respect of the employment of the first three employees alleged in paragraphs 10(a), (b) and (c) of the statement of claim.  Again, that is probably a denial of the status of those individuals as employees, rather than a denial that the notice to produce records or documents was issued to the first respondent, but it is not entirely clear. 

21. Paragraph 5 of the defence refers to paragraphs 23(a)(i) and 23(a)(ii), 23(a)(iii), 26(a), 26(b) and 26(d) of the statement of claim.  Again, the denials of the allegations in those paragraphs seem to be directed to the notion that the three named individuals were not employees. 

22. The next paragraph which is the subject of dispute from the first respondent is paragraph 30(a) of the statement of claim.  That alleges that, on 29 August, the applicant, through its officer, issued to the first respondent a compliance notice requiring the first respondent to take specified action to remedy the direct effects of the contraventions, as that phrase is defined in the statement of claim, by rectifying certain underpayments in relation to the employee named in that paragraph.  The denial of that allegation is in these terms:

    Tanya was paid weekly and correctly.

23. The next issue taken by the defence is with paragraph 37 of the statement of claim.  That paragraph pleads a compliance notice issued by the applicant to the first respondent.  It again refers to a particular employee, and the plea seems to be that that employee was paid “weekly and correctly”.  The first respondent closes its defence by including this: 

    The first defendant elects trial by jury.

24. The second defendant’s defence is much briefer. He denies paragraph 44 of the statement of claim. That paragraph sets out an allegation that the second respondent was involved in the first respondent’s contraventions of the relevant provisions of the Fair Work Act. Similar pleas appear in paragraphs 9C, 9D and 9E of the statement of claim. Curiously, the first respondent takes no issue with those parts of the statement of claim, but the second respondent does, and he does so by saying this:

    He was not always responsible for the wages of the company.  Wages were weekly, and the defendant was away and unavailable numerous times during the period in question.  He could not possibly be held personally responsible for every single person that entered or left the three shops that were opened all hours of the day and week.

25. I have really no idea what that means. 

26. The second respondent too elects trial by jury. 

27. The respondents have filed a defence.  The basis upon which they oppose the application is tolerably clear from the defence.  First, it seems to be that the respondents take issue with the status of three people as employees of the first respondent.  Second, the defence seems to be that the subject of the relevant compliance notices, or at least two of them, were in truth not contraventions of the Act, but rather the first respondent had met its obligations. 

28. By the barest of margins, and taking into account the defence is drawn by somebody who is plainly not a lawyer, the defence probably does set out a response to the proceedings by the defendants.  To the extent then that the respondents were required to file a defence to the application and statement of claim, they have probably done that.  They have not done it within the time prescribed by the directions that I made on 1 June.  They were to file and serve those responses and defences by 5 June.  It was filed on 9 June.  It seems they were never served.

29. Direction 3 made on 1 June, 2015 required the respondents to file and serve any affidavits of evidence-in-chief to given by each witness upon which the respondents proposed to rely by 4:00pm on 5 June, 2015.  The respondents have not done that. 

30. In those circumstances and for the purposes of rule 13.03A(2) of the Federal Circuit Rules, I find that the first respondent and the second respondent are in default.  They are in default because they did not file and serve their responses and defences within the time limited by the directions I made on 1 June, 2015.  They are in default because they have not filed and served their affidavits of evidence in chief as directed on 1 June, 2015.  They are in default because they have not appeared this morning.

31. In those circumstances, and having regard to paragraph 5 of the orders that I made on 1 June 2015, rule 13.03C(1)(e) and 13.03C(2) of the Federal Circuit Court Rules, the matter should proceed today to a default hearing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 June 2015.

Associate: 

Date:  6 July 2015