Hyde v Burgess trading as Noble Cleaning Services
[2021] FCCA 1055
•19 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hyde v Burgess trading as Noble Cleaning Services [2021] FCCA 1055
File number(s): SYG 1126 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 19 May 2021 Catchwords: INDUSTRIAL LAW – Application to vary judgment entered on 5 February 2021 – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) r 16.05. Cases cited: McDermott v Richmond Sales Pty Ltd [2006] FCA 248
Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250
Wentworth v Woollahra Municipal Council [1982] HCA 41Number of paragraphs: 15 Date of hearing: 7 May 2021 Place: Heard in Parramatta, Delivered in Canberra Appearing for the Applicant: In person Appearing for the Respondent: No appearance ORDERS
SYG 1126 of 2020 BETWEEN: RACHEL CHRISTIAN HYDE
Applicant
AND: MATTHEW BURGESS TRADING AS NOBLE CLEANING SERVICES
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
19 MAY 2021
THE COURT ORDERS THAT:
1.The application in a case filed by the applicant on 12 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
On 5 February 2021, the Court entered judgement for the applicant against the respondent in the amount of $35,859.32, to be paid by the respondent within 6 months.
On 7 May 2021, the applicant filed an application in a case, seeking to vary the judgement such that the judgement debt be payable in equal monthly instalments on the 5th day of each month commencing on 5 February 2021.
The grounds for the variation to the judgment are said by the applicant to be as follows:
a. The applicant was advised by her superannuation company on 4 January 2019 that no payments had been made to her fund and the employer Matthew Burgess advised her that it had been paid into another fund.
b. That is no payment had been made for a period of 12months of employment. That issue is evidenced in the outline of submissions by the applicant.
c. The fact is that no payments had been made at the commencement of her employment from 8/1/18 not during her employment and after her employment ended on 17/1/20. That issue is evidenced in the outline of submissions by the applicant.
d. That is a period of 2 years.
e. Further no payment has been made by Matthew Burgess to the applicant since the ending of her employment on 17/1/20 and the date of these submissions being 10/2/21, an additional period of approximately 12 months. That issue forms part of the submissions of the applicant as previously submitted.
f. The employer has not paid the applicant her annual leave or annual leave loading or her notice period since the ending of her employment on 17/1/20 and the date of these submissions being 10/2/21 a period of 12 months. That issue forms part of the submissions of the applicant as previously submitted.
g. Any other matter the Court considers relevant to the issue
The applicant, despite being invited to do so, was not able to identify the relevant power of the Court to vary a final judgement. Furthermore, the submissions made by the applicant were of very limited assistance.
The authorities in respect of the finality of judgement are well established and well known. Mason ACJ, Wilson and Brennan JJ in Wentworth v Woollahra Municipal Council [1982] HCA 41;(1982) 149 CLR 672 held at 684:
...the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.
The Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) further provide as follows:
RULE 16.05 – Setting aside or varying judgments or orders
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
(3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.
The respondent did not appear in Court at the hearing of the applicant’s application to vary the judgment, although having regard to the Affidavit of Service that has been filed, the Court is satisfied that the respondent was on notice of the application and the Court date.
The orders made on 5 February 2021 were made by consent of the parties, both parties were present and the orders are final orders. The orders are not for injunctive relief nor the appointment of a receiver. There is no suggestion by the applicant that the orders were obtained by fraud or that they do not reflect the intention of the Court. There is no clerical mistake or an error, accidental slip or omission. Arguably, the only provision of the FCC Rules the applicant could rely on is Rule 16.05(f).
In Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250, Judge Lucev had occasion to consider Rule 16.05(f) at the relevant time being Federal Magistrates Court Rules. His Honour held as follows:
[23] Rule 16.05(2)(f) of the FMC Rules has a direct equivalent in O.35 r.7(2)(f) of the Federal Court Rules (Cth).[21] Thus, decisions of the Federal Court on O.35 r.7(2)(f) of the FC Rules are relevant to the Court’s consideration of r.16.05(2)(f) of the FMC Rules.
[24] Although not entirely free from doubt, at common law, courts with inherent jurisdiction have jurisdiction to set aside a judgment regularly entered if the parties to the judgment consent to the Court doing so, and provided that no third party would suffer particular injury by the making of the order
[25] The common law position is relevant because in ASIC v Yandal Gold Merkel J said the following, citing Stocks & Holdings in support:
22.The construction that I would place upon O35 r7(2)(f) gives effect to the purpose of the rule as it would ensure that the Court's discretion to vary orders by consent is able to be exercised in order to rectify the unintended operation of certain orders in a manner that is consistent with the inherent jurisdiction of the Court to set aside a judgment by consent of the parties, provided that the setting aside of the judgment would cause no particular injury to a third party.
[26] In BHP Steel (AIS) Pty Ltd v CFMEU, Kiefel J stated that O.35 r.7(2)(f) of the FC Rules permitted the order in question to be set aside given the consent of both parties, and that the question of which of them had the benefit of the order did not need determination.
[27] Rule 16.05(2)(f) is a procedural fairness provision. In order for this provision to apply, the parties must consent to having the order in question set aside or varied. The intention is that the party in whose favour the order is made must consent to any application to vary or set aside such order because it is the party that would be prejudiced by any variation or setting aside of the order…
(citations omitted)
If the orders were varied in the manner sought by the applicant, the variation would prejudice the respondent. While the payment of moneys by the respondent pursuant to the order is an order which is in favour of the applicant, the time for the payment of that money is an order which is in favour of the respondent. There is no consent by the respondent to the variation of the orders which the applicant seeks.
Regard must be had to the fact that the discretion to vary or set aside orders after they have been entered should only be used in exceptional circumstances (McDermott v Richmond Sales Pty Ltd [2006] FCA 248]).
What the applicant is doing in truth, is seeking to enforce the order when time for compliance has not yet expired. She has put before the Court evidence of the respondent’s lack of response to her enquiries as to when the judgement debt would be paid, and has submitted that she does not want to wait until the expiration of the 6 months because she is certain that the respondent will not pay even then. She raised with the Court the issue of why the Court granted the respondent 6 months in the first place, that matter not being an appropriate matter to be raised in this instance. The applicant has not filed any appeal.
At the expiration of the time for payment which the orders provide for, and if orders have not been complied with, the applicant has the right to seek to have those orders enforced.
The applicant has not persuaded the Court that the orders should be varied in the manner sought by the applicant.
The application to vary the judgement entered on 5 February 2021 is therefore dismissed.
16 I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 19 May 2021
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