Garven v Hortus Australia Pty Ltd

[2012] FMCA 987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARVEN v HORTUS AUSTRALIA PTY LTD [2012] FMCA 987

INDUSTRIAL LAW – Alleged unlawful termination – by reason of filing of complaint – application for default summary judgment.

PRACTICE AND PROCEDURE – Summary judgment – in default of Court’s order – in default of appearance.

Fair Work Act 2009 (Cth), ss.772(1), 783(1)
Federal Magistrates Court Rules 2001 (Cth), rr.13.03B(2)(b), 13.03(2)

Applicant: SARAH GARVEN

Respondent: HORTUS AUSTRALIA PTY LTD

File Number: PEG 194 of 2012

Judgment of: Lucev FM

Hearing date: 29 October 2012

Date of Last Submission: 29 October 2012

Delivered at: Perth

Delivered on: 29 October 2012

REPRESENTATION

For the Applicant: Ms S Garven (in person)

For the Respondent: No appearance

ORDERS

1. Pursuant to rules 13.03B(2)(b) and 13.03C(2) of the Federal Magistrates Court Rules 2001 (Cth) there be judgment for the Applicant in the sum of $330,345 payable by 29 November 2012.

2. Reasons for Judgment to be published from Chambers at a later date.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 194 of 2012

SARAH GARVEN

Applicant

And

HORTUS AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This morning the Court made orders in the following terms in this matter:

   1.Pursuant to rules 13.03B(2)(b) and 13.03C(2) of the Federal Magistrates Court Rules 2001 (Cth) there be judgment for the Applicant in the sum of $330,345 payable by 29 November 2012.

   2.Reasons for Judgment to be published from Chambers at a later date.

2. The application before the Court is under s.772 of the Fair Work Act 2009 (Cth), alleging unlawful termination of a five year employment contract by reason of the respondent terminating the applicant’s services following the filing of a complaint[1] against the respondent. It is a matter in relation to which the alleged reason for action is presumed unless proven otherwise.[2]

   [1] FW Act, s.772(1)(e).

   [2] FW Act, s.783(1).

3. Previously, when the matter was before the Court on 24 September 2012 the Court had made orders in the following terms:

   2.The Respondent file and serve a:

   (a)Notice of Address for Service; and

   (b)response,

   by 15 October 2012.

   4.The matter be listed for a further directions hearing on 29 October 2012 at 9:15am, and if order 2 not be complied with, the Applicant be entitled to apply for summary judgment at that directions hearing.

4. The respondent failed to comply with order 2, and did not attend when the matter was listed for further directions on 29 October 2012 at 9.15am.

5. In the circumstances, there was both a default in terms of compliance with orders of this Court made on 24 September 2012, and default in terms of appearance (the respondent not appearing on either 24 September 2012 or 29 October 2012). It is, therefore, appropriate to make an order that the applicant have summary judgment by reason of both default of appearance and default in compliance with the Court’s earlier order, especially so in this case when regard is also had to the presumption of proof provisions in s.783(1) of the FW Act.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  29 October 2012