Haider v 24/7 Baby 003 Pty Ltd

[2025] FedCFamC2G 933

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Haider v 24/7 Baby 003 Pty Ltd [2025] FedCFamC2G 933

File number(s):

SYG 3170 of 2024

Judgment of:

JUDGE MCCABE

Date of judgment:

17 June 2025

Catchwords:

INDUSTRIAL LAW – application for default judgment against company and its sole director – default judgment – declarations made.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Cases cited:

Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606

Musicki v de Tonnerre [2023] FCA 222

Division:

Division 2 General Federal Law

Number of paragraphs:

13

Date of hearing:

19 May 2025

Place:

Sydney

Counsel for the applicant:

Mr L Meagher of Counsel

Solicitor for the applicant:

Legal Aid NSW

Solicitor for the respondents:

No appearance by or on behalf of the respondents

ORDERS

SYG 3170 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KALB HAIDER

Applicant

AND:

24/7 BABY 003 PTY LTD

First Respondent

ADRI EL KASSAR

Second Respondent

ANDREW ZAITER

Third Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	17 JUNE 2025

THE COURT DECLARES THAT:

1.Pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court gives judgment to the applicant as follows:

(a)The first respondent contravened s 45 of the FW Act by contravening clauses:

(i)17.1 of the Award;

(ii)21 .2 of the Award;

(iii)22.1 of the Award; and

(iv)22.2 of the Award.

(b)By never providing the applicant with a Fair Work Information Statement, the first respondent contravened ss 125 and 44 of the FW Act.

(c)By never notifying the applicant in writing of his classification under the Award, the first respondent contravened cl 14.3 of the award and s 45 of the FW Act.

(d)By never providing the applicant a pay slip after paying the applicant in relation to the performance of work, the first respondent contravened s 536(1) of the FW Act.

(e)The second respondent was involved in each of the contraventions of the FW Act recorded above, and by way of s 550 of the FW Act also contravened these provisions of the FW Act.

THE COURT ORDERS THAT:

1.The respondents pay the applicant compensation for financial losses of $68,502.90.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE MCCABE:

1. The applicant, Mr Haider, commenced proceedings alleging contraventions of the Fair Work Act 2009 (Cth) (the FW Act). He seeks compensation orders, penalties and interest. The respondents have not engaged with the proceedings. Mr Haider has now brought an application for default judgment against the respondents to these proceedings. Mr Haider alleges the respondents have each failed:

   ·to give an address for service as required under r 6.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth);

   ·to file and serve a response within 28 days after service of the application and applications in a proceeding as required under r 4.03 of the rules; and

   ·to defend the proceedings with due diligence (or at all).

2. The applicant relies on the statement of claim filed on 5 December 2024 and his affidavit affirmed 12 May 2025. He also relies on three affidavits of Mr Alexander Yiannikas affirmed on 3 March 2025, 31 March 2025 and 28 April 2025 respectively. The first of Mr Yiannikas's affidavits records, amongst other things, the unsuccessful attempts to serve the statement of claim and the originating application on the second and third respondents by post and email. The second affidavit records the applicant effecting service of the application, statement of claim and orders of 5 March 2025 on the second and third respondents by post and in accordance with the orders for substituted service. The third affidavit records the applicant serving notice of the application for default judgment in accordance with orders made on 16 April 2025. That affidavit confirms the application for default judgment was sent by express post to the first respondent's corporate address. I was informed from the bar table that the documents sent to the first respondent have since been returned to the sender.

3. Mr Meagher, counsel for the applicant, noted in his oral submissions that there had been a problem effecting service of the originating application and statement of claim on the first respondent. The affidavit of Mr Yiannikas dated 3 March 2025 says a process server attended the registered address of the company on 11 December 2024. A convenience store trades from that location. The process server left a card asking a person in charge of the store to pass on the process server's details. The process server did not leave a copy of the originating application and statement of claim at that location on that occasion. Mr Meagher acknowledged that did not amount to effective service on the first respondent in accordance with r 6.08(1)(a).  He points out a copy of the application for default judgment was effectively served by express post on 22 April 2025 in accordance with the orders of the Court. He noted that document has since been returned unopened.

4. The applicant has now asked for orders giving judgment in his favour pursuant to r 13.05(2)(c) in circumstances where the application was commenced with a statement of claim. The application for default judgment was heard on 19 May 2025. The third respondent's mother appeared at the hearing on her son's behalf. She said her son was unwell but insisted her son was only tangentially involved in the matters referred to in the claim.

5. I am satisfied having regard to the affidavits of Mr Yiannakis that the second and third respondents are in default of their obligations under r 6.01 and 4.03. I am satisfied all three respondents have failed to defend the proceedings with due diligence (or at all). I reach that conclusion in relation to the second and third respondents in light of their failure to engage with the proceedings following service of the originating application and statement of claim and the subsequent service of the application for default judgment. The first respondent has failed to engage despite attempts at service of the application for default judgment. (I note that in excess of 28 days have passed since the respondents were served with the application for default judgment.) While the applicant's failure to correctly effect service of the originating application on the first respondent is regrettable, the fact the default judgment document addressed to the first respondent's registered address was returned unopened suggests compliant service of the originating application would not have made any difference. Once those efforts were exhausted, it is not clear what more the applicant could have done to effect service on the respondents.

6. In light of the appearance of the third respondent's mother at the hearing, the applicant agreed it would not press its application for default judgment notwithstanding his default. It was accepted it was appropriate to make orders requiring the third respondent to engage with the proceedings.

7. Having concluded the respondents are in default, I must decide whether to exercise the discretion in r 13.05(2) to order judgment against the first and second respondents. The principles I must apply when considering whether to order default judgment were discussed by Yates J in Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]; see also Musicki v de Tonnerre [2023] FCA 222 at [16] per Mortimer J (as her Honour then was). In summary, I must be satisfied the applicant is entitled to the relief sought having regard to the statement of claim. Yates J explained in Chamberlain:

   This requirement has been interpreted as meaning that the Court must be satisfied that "on the face of the statement of claim" the applicant is entitled to the relief that is claimed. It is not a requirement that the applicant prove its claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42]. If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18] - [19]; Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [23]. The Court may permit further evidence to be adduced, but not evidence that would alter the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [45], [48] - [50]; United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413 at [42] - [44]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62] - [63].

8. In this case, the applicant points to the affidavit of Mr Haider affirmed 12 May 2025 which provides a narrative of the facts giving rise to his claim, and which annexes various documents that support what is claimed in the statement of claim. That evidence does not appear to alter the pleaded case. In summary, Mr Haider's affidavit alleges:

   (a)Mr Haider arrived in Australia on a student visa on 31 December 2021 (at [2]).

   (b)He responded to an advertisement in the last week of December 2022 (at [3]) offering employment at a convenience store. He subsequently met with an individual named 'Mike' at the store. The applicant and Mike discussed the shift arrangements and the rate of pay (at [4]-[6]). The parties did not discuss how many shifts the applicant could expect to work (at [7]).

   (c)Mike offered the applicant a job at the end of the interview and the applicant accepted (at [8]). The applicant was told he would be paid by bank transfer where he worked for up to 20 hours, but he would be paid in cash at a lower rate for any hours in excess (at [9]).

   (d)The applicant commenced his first shift on the evening of 31 December 2022 after receiving training (at [11]-[14]).

   (e)The applicant recalled meeting the second respondent during the training. Mike told the applicant the second respondent was the owner of the business (at [12]).

   (f)The applicant worked at several different stores operated by the first respondent until he was terminated (at [16], [21]-[23]). He recalled he was mainly paid in cash and only received bank transfers on a handful of occasions (at [17], [19), and that one of those transfers was made by another company (at [17]). He said the cash payments he received did not always reflect the number of hours he worked (at [20]). The hours worked and an estimate of the amounts paid are reproduced in annexures A and B to the statement of claim and confirmed in the affidavit at [24].

   (g)The applicant recalled contacting the second respondent in March and April 2023 about pay issues (at [31], [35] respectively). The applicant said he did not have any success in securing payment so it was suggested he speak with the third respondent who apparently organised a single payment by bank transfer (at [32]-[33]). The applicant said he messaged the second respondent on a weekly basis about unpaid wages in the period from April 2023 to the date he was terminated (at [35]). The applicant also contacted the third respondent on at least one occasion but the third respondent was angry with him for doing so (at [36]-[37]).

   (h)The applicant attended the George St store where he was originally engaged on 30 August 2023 and demanded payment of unpaid wages. He was told he would be paid an amount that night but it was not forthcoming (at [39]). On 31 August, the applicant returned to the store and closed it down before calling the police (at [40]-[41]). When the applicant informed the second respondent of what he had done in a message that also demanded payment, the third respondent arrived on scene and terminated the applicant's employment (at [43]).

   (i)The applicant and the second respondent met the same day. The applicant, the second respondent and Mike negotiated a payment plan to settle the outstanding debt to the applicant (at [45]). Only one payment was made under the plan and the second respondent thereafter refused to make any payments (at [48]).

   (j)The applicant was not provided with any documents to sign (at [7]) nor was he provided with a Fair Work Information Statement or informed of his classification under an award (at [50]).

9. The statement of claim alleges the first respondent contravened s 45 of the FW Act arising out of contraventions of the relevant award as a consequence of (a) the failure to inform the applicant of his classification under the award and (b) non-payment of wages, overtime and penalty rates. The statement of claim also alleges the failure to provide pay slips was a contravention of s 536(1) of the FW Act, and the failure to provide a Fair Work Information Statement amounted to a contravention of ss 44 and 125. The statement of claim alleges the second and third respondents were involved in each of the contraventions.

10. The applicant says it was not pressing an allegation that the respondent breached cl 22.2 of the award.

11. I am satisfied having regard to the statement of claim (supported as it is by the affidavit of Mr Haider affirmed 12 May 2025 which does not contradict the pleadings) that the contraventions have been established against the first and second respondents.

12. I indicated to Mr Meagher that I would not determine penalties until I have received further submissions on how those penalties should be assessed. I agree it is appropriate to make compensation orders against the first and second respondents. Mr Meagher sought leave to revisit the amounts claimed by way of compensation in the statement of claim to ensure they were accurate. In written submissions received following the hearing, he indicated there was a minor error in the calculations: upon recalculation, the applicant conceded the amount of economic loss should be reduced by $10.25 once one took into account the casual loading payable under the relevant award. That reduces the amount of compensation claimed to $68,502.90. I accept that adjustment is appropriately made, and that it favours the respondents. I order that compensation should be ordered in the amount of $68,502.90.

13. I will deal with the question of costs and timetabling orders to deal with pecuniary penalties at the next direction hearing.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       17 June 2025