Fair Work Ombudsman v United Chambers Pty Ltd - [2023] FedCFamC2G 26

Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v United Chambers Pty Ltd [2023] FedCFamC2G 26

File number(s): MLG 1912 of 2022

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 25 January 2023

Catchwords: INDUSTRIAL LAW - FAIR WORK – application for substituted service – whether there is an impediment to the making orders sought where second respondent is an undischarged bankrupt – consideration of whether orders for substituted service ought be made – finding that significant attempts have been made to personally serve the second respondent – orders made for substituted service.

Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 6.04, 6.14, 6.15

Cases cited: Fair Work Ombudsman v Benny 842 Pty Ltd [2022] FedCFamC2G 693

Division: Division 2 General Federal Law

Number of paragraphs: 19

Date of last submission/s: 5 October 2022

Date of hearing: 5 October 2022

Place: Melbourne

Solicitor for the Applicant: Mr B Adams of HWL Ebsworth Lawyers

Solicitor for the First Respondent: No appearance by the First Respondent

Solicitor for the Second Respondent: No appearance by the Second Respondent
ORDERS

MLG 1912 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
UNITED CHAMBERS PTY LTD

First Respondent

ROONA NIDA

Second Respondent

order made by:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

25 January 2023

THE COURT ORDERS THAT:
1.Pursuant to rule 6.04(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the Applicant’s Application and Statement of Claim, filed on 19 August 2022, are deemed to have been served on the Second Respondent on 27 September 2022 when they were emailed to info@unitedchambers.com.au.
2.Pursuant to rule 6.14 of the Rules, until further order or a Notice of Address for Service is filed and served by:
(a)the First Respondent, documents in this proceeding are deemed to have been served on the First Respondent on the next day after the documents are sent by email to info@unitedchambers.com.au;
(b)the Second Respondent, documents in this proceeding are deemed to have been served on the Second Respondent on the next day after documents are sent by email to info@unitedchambers.com.au and by express post to 10A Girvan Circuit, Endeavour Hills, in the State of Victoria.

3.The first respondent file and serve a Notice of Address for Service by no later than 4:00pm on 15 February 2023.
4.The Second Respondent file and serve a Notice of Address for Service by no later than 4:00pm on 15 February 2023.
5.The First Respondent file and serve a response and any defence by no later than 4:00pm on 8 March 2023.
6.The Second Respondent file and serve a response and any defence by no later than 4:00pm on 8 March 2023.
7.The applicant file and serve a reply, if any, by no later than 22 March 2023.
8.The matter be listed for directions hearing on 9 May 2023 at 9:30am.

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: [2023] FedCFamC2G 26
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Fair Work Ombudsman filed an application against United Chambers Pty Ltd concerning allegations of underpayment of wages and contraventions of the Fair Work Act 2009. The matter involved claims that the respondent company had failed to pay its employees the correct minimum wages and entitlements, and had not maintained proper records. The Fair Work Ombudsman sought orders for service of documents and access to the respondent's premises and records. The legal issues before the court included whether the Fair Work Ombudsman had sufficiently attempted to serve the relevant documents on the respondent and whether it was appropriate to make orders facilitating access to the respondent's premises and records.

The court found that the Fair Work Ombudsman had taken reasonable steps to serve the documents on the respondent, including attempts to serve by personal delivery, email, and express post. The court held that the evidence demonstrated significant efforts to serve the documents, and that it was likely the respondent was aware of the existence and nature of the documents due to the multiple methods of service employed. The court was satisfied that the steps taken had brought the documents to the respondent's attention, particularly given the express post delivery to both the prior business address and the current address. Consequently, the court concluded it was appropriate to make the orders sought by the Fair Work Ombudsman to facilitate further investigation and enforcement actions.

The court granted the orders sought, allowing the Fair Work Ombudsman to serve the documents on the respondent and to access the respondent's premises and records. The court's decision emphasised the importance of the Fair Work Ombudsman's efforts to ensure compliance with employment laws and the protection of employee entitlements. The orders were made to support the ongoing investigation and to enable the Fair Work Ombudsman to effectively enforce the provisions of the Fair Work Act.

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

Having regard to this information, I am satisfied that significant attempts have been made to personally serve the second respondent. I am also satisfied that it is likely that the steps taken to date have brought the existence and nature of the documents to the attention of the second respondent. This is particularly so in circumstances where those documents were sent (and delivered) by express post to the second respondent both at her prior business address and at the Girvan Circuit address.Conclusion In each of those circumstances, I am satisfied that it is appropriate to make the orders sought by the applicant in this case and I so order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLG 1912 of 2022
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	25 January 2023
Catchwords:	INDUSTRIAL LAW - FAIR WORK – application for substituted service – whether there is an impediment to the making orders sought where second respondent is an undischarged bankrupt – consideration of whether orders for substituted service ought be made – finding that significant attempts have been made to personally serve the second respondent – orders made for substituted service.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 6.04, 6.14, 6.15
Cases cited:	Fair Work Ombudsman v Benny 842 Pty Ltd [2022] FedCFamC2G 693
Division:	Division 2 General Federal Law
Number of paragraphs:	19
Date of last submission/s:	5 October 2022
Date of hearing:	5 October 2022
Place:	Melbourne
Solicitor for the Applicant:	Mr B Adams of HWL Ebsworth Lawyers
Solicitor for the First Respondent:	No appearance by the First Respondent
Solicitor for the Second Respondent:	No appearance by the Second Respondent

MLG 1912 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	UNITED CHAMBERS PTY LTD First Respondent ROONA NIDA Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	25 January 2023