Fair Work Ombudsman v Wedderburn Petroleum Pty Ltd
[2015] FCCA 2011
•23 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v WEDDERBURN PETROLEUM PTY LTD | [2015] FCCA 2011 |
| Catchwords: INDUSTRIAL LAW – Application for declarations and orders as a result of non-compliance with an order of the Fair Work Commission – breach of a civil remedy provision. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 394, 405, 539, 545, 546, 548, 550(1) Federal Circuit Court Rules 2001 (Cth), rr.13.03A(2), 13.03B(2), 13.03C(1) |
| Mayberry v Kijani Investments Pty Ltd. as Trustee for the Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238 Meadley v Sort Worx Pty Ltd [2013] FCA 1012 Hartnett Legal Services Pty Ltd v Ballantyne [2015] FCA 744 Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 71 |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | WEDDERBURN PETROLEUM PTY LTD |
| File Number: | MLG 763 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 23 July 2015 |
| Date of Last Submission: | 23 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 23 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hall |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
ORDERS
THE COURT DECLARES:
Upon the admissions which the respondent is taken to have made consequent upon defaults by the respondent, under Rule 13.03A(2)(a)(b)(i)(ii)(iii)(vii) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) the Court declares pursuant to Rule 13.03B(2)(c) of the Rules that the respondent contravened section 405 of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to comply with an Order of the Fair Work Commission dated 16 April 2014.
THE COURT ORDERS THAT:
Pursuant to Rule 13.03B(2)(d) of the Rules and section 545(2)(b) of the FW Act, the respondent pay Ms Amanda Page an amount of $5,000 as required by law, within 28 days of this Order.
Pursuant to Rule 13.03B(2)(d) of the Rules and section 547(2) of the FW Act, the respondent pay interest to Ms Page on the amount referred to in paragraph 2 above, $398.22 within 28 days of this Order.
Pursuant to Rule 13.03B(2)(d) of the Rules and section 559(1) of the FW Act, in the event that the respondent is unable to locate Ms Page within 28 days from the date of this Order, the respondent pay the outstanding amounts referred to in paragraphs 2 and 3 above to the Commonwealth forthwith.
The matter be fixed for a penalty hearing on 7 October 2015 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.
The respondent file and serve anything to be relied on for the purpose of order 5 above 14 days prior.
The applicant is to file and serve the respondent with a copy of these orders within 14 days.
AND THE COURT NOTES:
Rule 16.05.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 763 of 2015
| FAIR WORK OMBUDSMAN |
Applicant
And
| WEDDERBURN PETROLEUM PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The Fair Work Ombudsman (“the applicant”) commenced these proceedings, by application and statement of claim filed on 13 April 2015, against Wedderburn Petroleum Pty Ltd (“the respondent”). The applicant alleged the respondent failed to comply with orders made in the Fair Work Commission (“the FWC”) on 16 April 2014.
Background
The applicant is able to bring these proceedings by virtue of s.539(2) of the Fair Work Act 2009 (Cth) (“the FW Act”).
The applicant alleges the respondent employed Ms Page as a Console Operator at a Caltex badged petrol station in Wedderburn Victoria (the Site) from February 2011. The applicant alleges Ms Page became Manager of the Site from June 2013. The applicant alleges in early October 2013 the respondent terminated Ms Page’s employment.
On 21 October 2013 Ms Page lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the FW Act in the FWC against the respondent.
On 16 April 2014 the FWC found that the termination of Ms Page’s employment by the respondent contravened Division 3, Part 3-2 of the FW Act. The order made by the FWC that day required the respondent to pay Ms Page $5,000 as compensation in lieu of reinstatement within 14 days of 16 April 2014 (the FWC Order). The respondent has not complied with the FWC Order.
The applicant filed this application and statement of claim on 13 April 2015 seeking that the Court make the following orders:
“14. A declaration (sic) Respondent contravened section 405 of the FW Act by failing to comply with the Order.
15. An order pursuant to section 545(2)(b) of the FW Act that the Respondent pay compensation to Ms Page in the amount of $5,000 as required by law.
16. An order pursuant to section 547(2) of the FW Act that the Respondent pay interest to Ms Page on the amount referred to in paragraph 15 above.
17. An order pursuant to section 546(1) of the FW Act imposing a pecuniary penalty on the Respondent …”
On the first Court date Ms Hall, Solicitor, appeared on behalf of the applicant. There was no appearance by or on behalf of the respondent. There was evidence the respondent had been served and had notice of the proceeding. The Court made the following Orders:
“THE COURT ORDERS THAT:
1.The Respondent shall file and serve a Notice of Address for Service within 7 days from the date of these orders.
2.The Respondent file and serve a response within 14 days of the date of these orders.
3.The matter be set down for a liability hearing and if necessary a penalty hearing on 23 July 2015 at the Federal Circuit Court of Australia at Melbourne commencing at 10.00 am noting that, in the event the Respondent does not comply with orders (1) and (2) herein, the Applicant will file an Application for Default Judgment to be heard on that date.
4.The Applicant shall serve the Respondent with a sealed copy of these orders within 14 days from the date of these orders.
5. The parties have liberty to apply.”
The hearing
The matter returned to Court for hearing today, Thursday 23 July 2015. Ms Hall appeared on behalf of the applicant. There was evidence the respondent had been served with the above mentioned orders. There was no appearance on behalf of the respondent. The applicant has filed an application for default judgment.
Rules 13.03A, 13.03B and 13.03C of the Federal Circuit Court Rules 2001 (“the Rules”) 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):
decision includes a decision by consent.
judgment includes 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.”
In Hartnett Legal Services Pty Ltd v Ballantyne [2015] FCA 744 Rangiah J considered the correct test that should be applied in granting default judgment.[1]
[1] See paragraphs [28]-[76].
The Rules provide the Court with authority to give judgment or to make any other order against the respondent. I am satisfied the respondent has not satisfied the applicant’s claim. The respondent has not filed a notice of address for service, a response, or affidavit as required. The respondent has not complied with an order of this Court and having regard to Rules 13.03A(2)(a), 13.03A(2)(b)(i), (ii),(iii) and (vii) the respondent is in default for the purposes of Rules 13.03B(2). In the face of the respondent’s failure to appear this day and the defaults referred to above, a combination of Rules 13.03B(2), 13.03B(6) and/or 13.03C(1) provides the Court with ample authority to give judgment or make any other order against the respondent.
Given the defaults by the respondent and the material that the applicant has filed, I am satisfied pursuant to the relevant sections of the Rules I am able to proceed with the application this day.
For that purpose Ms Hall identified the material the applicant relied on and the orders that were sought.[2]
[2] Statement of claim filed 13 April 2015; Affidavits of service of Sharnie Barnes filed 29 May 2015 and 17 July 2015; Affidavits of Brian Warnock filed 17 July 2015; Affidavit of Anna Eleftheriadis filed 22 July 2015; Outline of submissions filed 17 July 2015 and Affidavit of Brooke Hall filed 20 July 2015; Minute of proposed orders marked Exhibit A1.
Consideration
The FWC Order was made under Part 3-2 of the FW Act which deals with unfair dismissal. Section 405 of the FW Act, falling within Part 3-2 of the FW Act provides that a person to whom an order under that part applies must not contravene a term of that order. Section 539 of the FW Act provides that a contravention (amongst other things) of s.405 of the FW Act is a civil remedy provision.
The Court has the power to make any order it considers appropriate if it is satisfied that the respondent has contravened a civil remedy provision (see s.545(1) FW Act).
The approach to what is effectively an application seeking an order for compliance with the FWC Order has been the subject of decisions of the Federal Court (see Mayberry v Kijani Investments Pty Ltd as Trustee for The Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238 per Katzmann J and Meadley v Sort Worx Pty Ltd [2013] FCA 1012 per Tracey J).
Section 545 of the FW Act confers on the Court broad powers to grant relief to persons who have suffered as a result of a contravention of a civil remedy provision. By virtue of s.545(2) of the FW Act the Court has the power to order a payment of compensation for loss that a person has suffered “because of” a contravention.
In Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716 considered the issue of compensation for the purposes of s.545 at [86] and [87]. In this case there is the “appropriate causal connection” His Honour identified.
Had the FWC Order been complied with Ms Page would have been entitled to the compensation referred to in the FWC Order. Ms Page has been deprived of this because of the respondent’s failure to comply with the FWC Order. There is no reason Ms Page should not have been entitled to the monies due pursuant to the FWC Order. There has been no appeal from the FWC Order. I am satisfied the respondent would have been well aware they were expected to comply with the FWC Order. There is no evidence the respondent was or is insolvent or otherwise unable to comply with the FWC Order.
For the reasons set out above I will make orders as set out in the applicant’s minute of proposed orders upon the defaults of the respondent referred to above. I will require the applicant to serve the respondent and otherwise fix the matter for a penalty hearing.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 24 July 2015
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