Hall v Active Towing Sydney Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hall v Active Towing Sydney Pty Ltd [2021] FedCFamC2G 385

File number: SYG 1506 of 2020
Judgment of: JUDGE CAMERON
Date of judgment: 2 December 2021
Catchwords:

INDUSTRIAL LAW – Breaches of civil remedy provisions – declarations of breach.

PRACTICE AND PROCEDURE – Default judgment for failure to file response or notice of address for service – declarations of breaches of the Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009 (Cth) ss 90, 324, 325, 545, 546, 547, 550

Federal Court of Australia Act 1976 (Cth) s 51A

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 13.04, 13.05

Cases cited: Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Division: Fair Work Division
Number of paragraphs: 17
Date of hearing: 2 December 2021
Place: Sydney
Solicitor for the Applicant: Mr T. Gardner (Clayton Utz)
Counsel for the First Respondent: No appearance by or on behalf of the First Respondent
Counsel for the Second Respondent: No appearance by or on behalf of the Second Respondent
Solicitor for the Third Respondent: Mr S. Karnib (Macquarie Law Group)

ORDERS

SYG 1506 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ALAN HALL

Applicant

AND:

ACTIVE TOWING SYDNEY PTY LTD ACN 003 705 539

First Respondent

WAYNE THOMAS WILLIAMSON

Second Respondent

RICHARD TUNCHON

Third Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

2 DECEMBER 2021

THE COURT DECLARES THAT:

1.The first respondent contravened ss.324 and 325 of the Fair Work Act 2009 (Cth) (“FW Act”) by deducting various amounts from the applicant’s wages during the employment period April 2015 to January 2018.

2.The first respondent contravened s.90 of the FW Act by failing to pay the applicant his accrued annual leave when his employment terminated.

3.The second respondent was involved in the first respondent’s contraventions of ss.90, 324 and 325 of the FW Act.

THE COURT ORDERS THAT:

4.The second respondent pay the applicant compensation in the amount of $26,955.52.

5.The second respondent pay the applicant interest on the compensation sum in the amount of $5,819.16.

6.The matter be listed for directions on 17 December 2021 at 9:30am by telephone.

7.The third respondent be excused from attending the directions hearing on 17 December 2021.

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 CAMERON

INTRODUCTION

  1. According to his amended application, from January 2014 until around 8 October 2018 the applicant, Mr Hall, was employed as a tow truck driver by Active Towing Sydney Pty…

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Details
Case
[2021] FedCFamC2G 385
Decision Date

CaseChat Overview and Summary

In the matter of Hall v Active Towing Sydney Pty Ltd, the plaintiff, Mr Hall, sought interest, declarations and penalties from the defendant, Active Towing Sydney Pty Ltd, and its director, Mr Williamson. The dispute arose out of a claim for damages related to towing services provided by the defendant. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide included the appropriate rate of interest to be awarded to Mr Hall, the necessity of making declarations as sought by Mr Hall, and whether penalties should be imposed on the defendant and Mr Williamson. The court also had to consider the evidence and submissions presented by both parties on these issues.

In determining the appropriate rate of interest, the court examined the calculations provided by Ms Morath, who was an expert witness for the plaintiff. The court found that the rates of interest used in the calculations were unremarkable and accepted the total amount of interest calculated by Ms Morath, which was $5,819.16. The court also considered it appropriate to make the declarations sought by Mr Hall, as far as they related to Active Towing and Mr Williamson. The question of penalty was reserved for a later date for further directions.

The court made orders for the defendant and Mr Williamson to pay interest to Mr Hall in the amount of $5,819.16. The court also made declarations as sought by Mr Hall, in relation to Active Towing and Mr Williamson. The matter will be listed for further directions on 17 December 2021 to consider the question of penalty.

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

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Ratio Decidendi

Legal Principle Established

On the question of interest, Ms Morath has annexed to her affidavit of 24 November 2021 a detailed breakdown of interest calculations in respect of the sorts of claims advanced by Mr Hall. I notice that on annexures A and B to her affidavit, she has set out the rates of interest used in her calculations, which seem to me to be unremarkable. I am satisfied that interest in the total amount of $5,819.16, as calculated by Ms Morath, is appropriate to award Mr Hall, and there will be orders to that effect.Declarations I also consider it appropriate to make the declarations which the applicant has sought in the amended application, as far as they relate to Active Towing and Mr Williamson. Penalty The matter will be listed for directions on 17 December 2021 on the question of penalty.