Hampton v Brown Cow Cafe Sunbury Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hampton v Brown Cow Cafe Sunbury Pty Ltd [2023] FedCFamC2G 808

File number(s): MLG 2048 of 2022
Judgment of: DEPUTY CHIEF JUDGE MERCURI
Date of judgment: 31 October 2023
Catchwords:

INDUSTRIAL LAW – FAIR WORK – application for default judgment – where respondents have not filed any response material or otherwise participated in proceeding – consideration of rr 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application granted.

INDUSTRIAL LAW – FAIR WORK – alleged contraventions of ss 45, 323, 351 and 352 of the Fair Work Act 2009 (Cth) – where the applicant was a casual employee at a café – where the applicant was a minor at the time of the alleged breaches and underpayments – alleged dismissal due to temporary disability – where applicant was unable to attend shift due to illness – where second respondent found to be a person involved in the established contraventions of the first respondent – contraventions found, declarations made and relief granted.

Legislation:

Fair Work Act 2009 (Cth), ss 45, 323, 338, 342, 351, 352, 361, 368, 545, 547, 550

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

Fair Work Regulations 2009 (Cth), reg 3.01

Restaurant Industry Award 2020, cls 18, 24

Cases cited:

Dafallah v Fair Work Commission (2014) 225 FCR 559

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

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

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080

Professional Administration Services Centres Pty Ltd v Federal Commissioner of Taxation (2012) 295 ALR 52

Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407

Division: Division 2 General Federal Law
Number of paragraphs: 117
Date of last submission/s: 17 May 2023
Date of hearing: 10 May 2023
Place: Melbourne
Solicitor for the Applicant: Mr P Goddard of Jobwatch Inc
Solicitor for the Respondents: No appearance by the First and Second Respondents

ORDERS

MLG 2048 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

WADE HAMPTON

Applicant
AND:

BROWN COW CAFE SUNBURY PTY LTD

First Respondent

HAO 'NICK' TRUONG

Second Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

31 OCTOBER 2023

THE COURT DECLARES THAT:

1.The first respondent contravened section 351 of the Fair Work Act2009 (Cth) in that it took adverse action against the applicant because of the applicant’s disability.

2.The first respondent contravened section 352 of the Fair Work Act2009 (Cth) in that it dismissed the applicant because he was temporarily absent from work because of illness of a kind prescribed by the Fair Work Regulations 2009 (Cth).

3.The first respondent contravened section 45 of the Fair Work Act2009 (Cth) in that it failed to pay the applicant his minimum…

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Details
Case
[2023] FedCFamC2G 808
Decision Date

CaseChat Overview and Summary

The matter of Hampton v Brown Cow Cafe Sunbury Pty Ltd involved a claim by Wade Hampton, a former casual employee, against Brown Cow Cafe Sunbury Pty Ltd and its manager, Mr Truong. The applicant alleged that he was underpaid during his employment and that he was dismissed due to a temporary disability. The respondents did not participate in the proceedings and did not file any response material. Hampton sought a default judgment against the respondents for the alleged breaches of the Fair Work Act 2009 (Cth).

The primary legal issue before the court was whether the respondents were in default under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), and whether the court should grant the applicant's application for default judgment. Additionally, the court had to determine whether the applicant had sufficiently established the alleged contraventions of the Fair Work Act 2009 (Cth), and whether relief should be granted.

In granting the application for default judgment, the court noted that the respondents had not participated in the proceedings and had not filed any responding material or defended the proceedings. The court found that the respondents were in default under r 13.04 of the Rules, as they had failed to file a response before the time for filing a response had expired. The court also noted that the respondents had been given numerous opportunities over an eight-month period to participate in and defend the proceedings, but had chosen not to do so. The court found that the applicant had established the alleged contraventions of the Fair Work Act 2009 (Cth), and that relief should be granted.

The court made a declaration that the respondents contravened ss 45, 323, 351 and 352 of the Fair Work Act 2009 (Cth), and that the second respondent was a person involved in the contraventions of the first respondent. The court also ordered the respondents to pay the applicant the amount of underpayments, interest, and costs.

In conclusion, the court granted the applicant's application for default judgment against the respondents, made the relevant declarations, and ordered the respondents to pay the applicant the amount of underpayments, interest, and costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By application filed on 19 April 2023, the applicant seeks default judgment against the respondents. The respondents have not filed any material responding to the applicant’s claims, nor did the respondents attend the final hearing in this matter.FACTUAL BACKGROUND On 22 December 2021, the applicant commenced casual employment for the first respondent, Brown Cow Café Sunbury Pty Ltd, classified as a level 1 beverage attendant pursuant to the Restaurant Industry Award 2020 (‘the Award’).[1][1] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [1]; Originating application filed on 9 September 2022. The applicant reported to Mr Truong, the second respondent.[2][2] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [3]. The applicant usually worked on Saturdays and Sundays from 9:00am to 2:00pm.[3][3] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [5]. At the commencement of the applicant’s employment in December 2021, the applicant was 16 years of age and was paid a base rate of $15.69 per hour on Saturdays and $18.31 per hour on Sundays under the Award.[4][4] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [5]. On 12 April 2022, the applicant turned 17 years of age.[5][5] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [6]. On Easter Saturday, 16 April 2022, the applicant worked a four hour shift and was paid at a rate of $15.69 per hour, being the Saturday rate under the Award for a 16 year old.[6][6] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraphs [11] to [12]; Annexures WH-7 and WH-8. On Easter Sunday, 17 April 2022, the applicant worked a six hour shift and was paid at a rate of $26.15, being the public holiday rate for a 16 year old.[7][7] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraphs [11] to [12]; Annexures WH-7 and WH-8. The applicant alleges that he should have been paid at a rate of $31.38 per hour for both days, being the public holiday rate under the Award for a 17 year old.[8][8] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [12]. On 7 May 2022, the applicant communicated with the second respondent via text message while working a Saturday shift that he was beginning to feel unwell and that he sought permission to work from 9:00am to 12:00pm the following day.[9] Mr Truong did not respond to the applicant until the following day.[10][9] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [7].[10] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [7]; Annexure WH-2. On 8 May 2022, the applicant contacted Mr Truong via text message, explaining that he was too sick to attend work and forwarding his mother’s mobile number for the second respondent to call her.[11] Mr Truong responded to this text message by requesting the applicant attend work on that day.[12][11] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [8]; Annexure WH-2.[12] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [8]; Annexure WH-3.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant also seeks an order for costs, but proposes to make submissions in relation to that at a future hearing, if any, to deal with costs and penalties if successful in its present application.[22][22] Applicant’s Outline of Submissions at paragraph [3].DEFAULT JUDGMENT Rule 13.04 of the Rules relevantly provides:(1) …(2) For the purposes of rule 13.05, a respondent is in default if the respondent:(a) has not satisfied the applicant’s claims; 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. As stated, neither of the respondents have participated in these proceedings at all. They have not complied with the requirements of the Rules in that they have not filed any responding material, nor have they defended these proceedings at all, let alone with any due diligence. This is so in circumstances where the respondents have been notified of these proceedings and the various procedural steps taken in these proceedings on numerous occasions. The respondents have been given numerous opportunities over an eight-month period to participate in and defend these proceedings. They have chosen not to do so. In these circumstances, I find that the respondents are in default for the purposes of rule 13.04. Rule 13.05(2) of the Rules further provides:(2) If a respondent is in default, the Court may:(a) …(b) …(c) …(d) give judgment or make any other order against the respondent; or(e) … Rule 13.05(6) goes on to provide that:(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 13.05 confers a discretion where a party is in default. This is a broad discretion but one which must be exercised judiciously and in the interests of the administration of justice. In this instance, the applicant initiated proceedings in this court to seek a remedy for an alleged underpayment of wages and a failure to comply with an industrial instrument. As stated above, the respondents have been put on notice on numerous occasions of these proceedings and have chosen not to participate. If permitted to continue to do so, they could effectively stifle any prospect of the court resolving the issues in dispute. This is not a case in which a respondent has tried to comply with the rules and orders of this court, or where there has been partial or substantial compliance. The respondents have simply not engaged in the proceedings at all. In Professional Administration Services Centres Pty Ltd v Federal Commissioner of Taxation (2012) 295 ALR 52, the Full Court of the Federal Court considered the equivalent rule in the Federal Court Rules 2011 (Cth). The Full Court said:35.The discretion conferred by r 5.23 of the Federal Court Rules is unconfined save that a party be in default. This power is similar to that conferred by the former O 10 r 7, the subject of the consideration by the Full Court in Lenijamar Pty Ltd & Ors v AGC (Advances) Limited … to which both parties referred at some length.…37.In Lenijamar, Wilcox and Gummow JJ pointed out … that the power must be exercised against the backdrop of a case management system in which it is expected that parties will observe procedural directions.…39.Their Honours stated that it was undesirable to attempt any exhaustive statement of the circumstances under which the power will appropriately be exercised … However, their Honours identified two situations where the use of the power will generally be warranted, namely, (a) where a history of non-compliance indicates an inability or unwillingness to co-operate with the Court and the other party in having the matter ready for trial within an acceptable period, and (b) where there is significant continuing default giving rise to undue prejudice and expense to the other party …

Ratio Decidendi

Legal Principle Established

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