Hall v City Country Hotel Management No.2 Pty Ltd (No 2)

[2016] FCCA 1543

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALL v CITY COUNTRY HOTEL MANAGEMENT NO.2 PTY LTD & ORS (No.2) [2016] FCCA 1543

Catchwords:
INDUSTRIAL LAW – Application for default judgment against individual respondents – whether respondents served with amended application and amended form 2 – whether material sufficient to make findings that respondents were involved in contraventions by first respondent of the Fair Work Act 2009 (Cth) – default judgment granted against the individual respondents.

Legislation:

Fair Work Act 2009 (Cth), 545(2), 550

Federal Circuit Court Rules 2001 (Cth), rr.6.14(1), 6.14(2), 13.03A(2), 13.03B(2), 13.03B(2)(d)

Cases cited:

Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA

2317

Applicant: SAMUEL HALL

First Respondent: CITY COUNTRY HOTEL MANAGEMENT NO. 2 PTY LTD

Second Respondent: THE WHITE HORSE HOTEL

Third Respondent: JOSHUA MEIJER

Fourth Respondent: EMMA MEIJER

Fifth Respondent: ALEXANDER SAVAGE

File Number: SYG 1169 of 2014

Judgment of: Judge Manousaridis

Hearing date: 21 August 2015

Delivered at: Sydney

Delivered on: 24 June 2016

REPRESENTATION

Applicant in person.

No appearance by or on behalf of the respondents.

ORDERS

1. Pursuant to r.13.03B(2)(d) of the Federal Circuit Court Rules 2001 (Cth) judgment in the sum of $12,791.08 is entered against Joshua Meijer in favour of the applicant.

2. Pursuant to r.13.03B(2)(d) of the Federal Circuit Court Rules 2001 (Cth) judgment in the sum of $12,791.08 is entered against Emma Meijer in favour of the applicant.

3. Pursuant to r.13.03B(2)(d) of the Federal Circuit Court Rules 2001 (Cth) judgment in the sum of $12,791.08 is entered against Alexander Savage in favour of the applicant.

4. Joshua Meijer, Emma Meijer and Alexander Savage pay the applicant such costs to which he may be entitled as an unrepresented litigant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1169 of 2014

SAMUEL HALL

Applicant

And

CITY COUNTRY HOTEL MANAGEMENT NO.2 PTY LTD

First Respondent

THE WHITE HORSE HOTEL

Second Respondent

JOSHUA MEIJER

Third Respondent

EMMA MEIJER

Fourth Respondent

ALEXANDER SAVAGE

Fifth Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 October 2014 I made a number of orders against the first respondent, including an order pursuant to s.545(2) of the Fair Work Act 2009 (Cth) (FW Act) that it pay compensation to the applicant, Mr Hall, in the sum of $11,305.15.

2. Mr Hall now applies for default judgment against each of Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage (respondents). None of these respondents have appeared at any of the directions hearings that have taken place in these proceedings, and they have otherwise given no indication they intend to defend the claims made against them.

3. In these reasons for judgment, which should be read together with my reasons for judgment I published on 10 October 2014 (earlier reasons),[1] I consider two issues. The first is whether I am satisfied the respondents have been properly served with the amended application and amended form 2; and the second is whether I should order default judgment against all or some of the respondents.

   [1] Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317

Service

1. The history of Mr Hall’s attempt to serve documents on the respondents is set out in an affidavit Mr Hall made on 1 July 2015 that he filed in support of an application for substituted service, and in affidavits of service prepared by Mr Budd, a licensed process server. Those affidavits satisfy me the following occurred:

   a)On 6 May 2014 and 17 July 2014 Mr Hall attended the White Horse Hotel, being the only address known to Mr Hall where any of the respondents would likely to be present, for the purpose of serving documents on the respondents.

   b)In July 2014 Mr Hall became aware that Mr Joshua Meijer and Ms Emma Meijer were the directors of a business known as the Hotel Orange that was conducted at Summer Street, Orange.

   c)On 2 July 2014 Mr Hall and his father travelled to Orange and attended the premises of Hotel Orange for the purpose of serving documents on the respondents. Mr Hall recognised Mr Alexander Savage working behind the bar. Mr Savage denied Mr Joshua Meijer and Ms Emma Meijer were on the premises, and refused to accept service of the documents. Mr Hall, however, left the documents in a sealed envelope on top of the bar in Mr Savage’s presence. When leaving the premises, however, Mr Hall observed through the window Mr Joshua Meijer entering from a back room to look at the documents Mr Hall left on the bar.

   d)On 24 April 2015 Mr Budd attended Hotel Orange and asked whether Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage were present. After a male responded by stating that none of these persons was present, Mr Budd placed a copy the application, amended application, amended form 2, and other documents in one envelope for each of the respondents marked private and confidential, and left the envelopes at the bar at Hotel Orange.

   e)On 6 July 2015 Mr Hall and his father entered the premises of the Hotel Orange to attempt to serve the “amended initiating documents” on the respondents. Mr Hall and his father were informed the respondents were not on the premises.

2. On 7 July 2015 I made an order pursuant to r.6.14(1) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dispensing with personal service of the amended application and amended form 2 filed in these proceedings against the respondents and, pursuant to r.6.14(2) of the FCC Rules, ordered that by 4 August 2015 Mr Hall serve the respondents with these documents by leaving the documents with a person at Hotel Orange who appears to be over the age of sixteen years, and that, by 4 August 2015, Mr Hall inform the respondents of the amended application and amended form 2 by sending a message to each of those person’s Facebook page attaching a copy of the amended application and amended form 2.

3. Mr Hall filed affidavits in which he deposes that on 3 August 2015 he served on each of Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage the application, amended application, form 2, amended form 2, and other documents by sending them to the Facebook page of each of Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage. Mr Hall did not, however, again arrange to leave the amended application and amended form 2 at Hotel Orange. Mr Hall, however, filed with the Court affidavits sworn by Mr Budd who deposed to having left the amended application and the amended form 2 at the Hotel Orange on 24 April 2015. Those affidavits were not before the Court at the time I made the orders for substituted service. The consequence, therefore, is that Mr Hall has in substance complied with my orders that the amended application and amended form 2 be left at the premises of the Hotel Orange.

4. I am satisfied Mr Hall has served the respondents with the amended application, and the amended from 2 in the manner required by the orders I made on 7 July 2015. Further, I am under no doubt the respondents have been made aware of these proceedings for some time, and of the claims Mr Hall makes against them. The evidence satisfies me the respondents have chosen to disregard the proceedings.

Should default judgment be granted?

1. Sub rule 13.03B(2) of the FCC Rules empowers the Court to make various orders if a respondent “is in default”. Under r.13.03A(2), a respondent “is in default” if the respondent has not satisfied the applicant’s claims and, among other things, the respondent fails to give an address for service before the time for the respondent to give an address has expired or fails to file a response before the time for the respondent to file a response has expired. There is no question that each of the respondents “is in default”. Mr Hall’s claims have not been satisfied; and none of the respondents has filed an address for service or filed a response to Mr Hall’s amended application and amended form 2.

2. The types of orders the Court may make under r.13.03B(2) of the FCC Rules depends in part on the nature of the claims the applicant makes (whether, for example, the claim is for a liquidated sum), and the means by which the applicant advances those claims (whether, for example, the claim is set out in a statement of claim). Mr Hall’s application is in part a claim for a liquidated amount, but, for the most part, it is a claim for unliquidated damages. And Mr Hall has not stated his case in a statement of claim; he has used the prescribed form 2. The kind of order I am authorised to make in the circumstances of this case is the order provided for in r.13.03B(2)(d), namely, to “give judgment or make any other order against the respondent”.

3. The judgment I may give is not, of course, at large. The judgment must be one that is reasonably supported by the materials on which the applicant relies for his claims for relief. I have in my earlier reasons set out the facts on which Mr Hall relied for his relief against the first respondent.[2] Mr Hall relies on the same alleged facts in his claims for relief against the respondents.

   [2] Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317

4. In order to succeed against the respondents, Mr Hall must not only establish the matters which he needed to establish against the first respondent, and which, in my earlier reasons for judgment, I found he did establish against the first respondent, Mr Hall must also demonstrate that each of the respondents were “involved” within the meaning of s.550 of the FW Act in the contraventions of the FW Act in which in my earlier reasons I found the first respondent engaged (Contraventions). In broad terms, that requires that Mr Hall prove that each of the respondents had knowledge of each of the elements of each Contravention. The question is whether, on the material I have set out in my earlier reasons for judgment, and on which Mr Hall relies for default judgment, there would be a reasonable basis for concluding that the respondents were involved in the Contraventions.

5. I am satisfied that the material on which Mr Hall relies is reasonably capable of sustaining findings that Mr Joshua Meijer and Ms Emma Meijer were involved in the Contraventions. The material is reasonably capable of sustaining findings to the effect that Mr Joshua Meijer and Ms Emma Meijer conducted the business of the White Horse Hotel, they were the persons who made the decisions in relation to Mr Hall, and, because they were the persons who made the decisions, they were aware of all the facts that comprised each of the Contraventions. I am similarly satisfied the material provides a reasonable basis for concluding Mr Alexander Savage was also involved in the Contraventions. In an email to Mr Hall sent on 31 December 2013, Ms Meijer stated that Mr Savage was Mr Hall’s direct manager, and that Mr Savage was one of the owners of the White Horse Hotel business.

6. It follows that judgment should be entered against Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage, in an amount equal to the amount which on 10 October 2014 I found the first respondent was liable to pay to Mr Hall, namely, $10,620.08, together with interest at the rate of 8.5% calculated from 7 January 2014 until 30 June 2015 and at the rate of 8.0% from 1 July 2015 to the date on which I publish these reasons. That amount is $2,171. Accordingly, I propose to order that judgment in the amount of $12,791.08 be entered against each of Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage. I also propose to order that Mr Joshua Meijer, Ms Emma Meijer, and Mr Alexander Savage pay such costs to which Mr Hall, as an unrepresented litigant, is entitled.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 24 June 2016