Ingleton v Boswell
[2025] FedCFamC2G 977
•27 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ingleton v Boswell [2025] FedCFamC2G 977
File number(s): SYG 3046 of 2024 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 27 June 2025 Catchwords: INDUSTRIAL LAW – FAIR WORK – application for default judgment – 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) – alleged contraventions of ss 45 and 323(1) of the Fair Work Act 2009 (Cth) – serious contraventions found – application granted. Legislation: Fair Work Act 2009 (Cth) ss 45, 323(1), 545(1) and 557A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04 and 13.05
Cases cited: United Voice v Gold Coast Kennels Discretionary Trust t/as AAA Pet Resort [2018] FWCFB 128
Wilkinson v Wilson Security Pty Ltd (No 3) (2024) 332 IR 387; [2024] FCA 705
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 6 June 2025 Place: Sydney
Solicitor for the Applicant: Mr J Li of National Workplace Lawyers Respondent: No appearance by or on behalf of the Respondent ORDERS
SYG 3046 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JESSE INGLETON
Applicant
AND: CHRISTOPHER BOSWELL
Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
27 JUNE 2025
THE COURT DECLARES THAT:
1.The respondent contravened sections 45 and 323(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay the applicant in accordance with the Miscellaneous Award 2020.
2.The respondent’s contraventions of sections 45 and 323(1) constitute serious contraventions within the meaning of section 557A(1) of the FW Act.
THE COURT ORDERS THAT:
3.Pursuant to sections 545(1) and 547 of the FW Act, the respondent pay as compensation to the applicant, on or by 11 July 2025, the amount of $286.77.
4.The applicant is to file and serve written submissions in relation to any further declaratory relief orders, pecuniary penalty orders, interest orders or costs orders sought by 11 July 2025.
5.The respondent is to file and serve any written submissions in response by 25 July 2025.
6.If it be deemed necessary by the Court, the matter be listed for further hearing, on a date convenient to the Court, as to any further declaratory relief orders, pecuniary penalty orders, interest orders or costs orders sought by the applicant.
THE COURT NOTES THAT:
A.These declarations and orders are made pursuant to rules 13.04(2)(b) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth).
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 PAPADOPOULOS
INTRODUCTION AND BACKGROUND
Before the Court is an application in a proceeding filed on 4 April 2025 (default judgment application), by which the applicant seeks orders for default judgment against the respondent pursuant to subrules 13.04(2)(b) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The respondent has not filed any material responding to the applicant’s claims, nor did the respondent attend the hearing of the default judgment application on 6 June 2025.
The respondent was, and remains, a sole trader operating a business known as WOOF FEST FESTIVAL (ABN 70 495 401 405), which hosts dog events featuring dog-related market stalls and competitions at local showgrounds throughout New South Wales.
The background of this matter was set out in the applicant’s written submissions, which I largely adopt.
On Sunday 28 July 2024, the applicant undertook casual employment with the respondent at a dog event in Penrith, New South Wales. On that day, the applicant performed a shift from 7.00 am to 5.00 pm, inclusive of a 30-minute unpaid meal break. In total, on 28 July 2024, the applicant performed 9.5 hours of work for the respondent.
The respondent has not paid the applicant for the work performed on 28 July 2024.
PROCEDURAL HISTORY
The applicant commenced these proceedings by way of application on 22 November 2024. The application was filed together with an affidavit of the applicant, Jesse Ingleton, sworn on 21 November 2024.
A copy of the application and accompanying Affidavit of the applicant was personally served on the respondent on 1 December 2024 by the applicant’s father, Ryan Ingleton. An Affidavit of service to this effect was made by Ryan Ingleton on 23 January 2025 and filed the same day.
DEFAULT JUDGMENT
The respondent’s default
The default judgment application was filed by the applicant on 4 April 2025. That application was listed for hearing of an interlocutory application before me on 6 June 2025.
In support of the default judgment application, the applicant relies on:
(a)the Affidavit of the applicant, Jesse Ingleton, sworn on 21 November 2024;
(b)the Affidavit of service of Ryan Ingleton, sworn on 23 January 2025;
(c)the Affidavit of Jimmy Li, sworn on 3 April 2025;
(d)the Affidavit of Service of Gavin Bellamy, sworn on 12 May 2025;
(e)the Affidavit of Jimmy Li, sworn on 15 May 2025; and
(f)the Affidavit of the applicant, Jesse Ingleton, sworn on 15 May 2025.
Rule 13.04 of the Rules relevantly provides:
13.04 When a party is in default
(1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant's claim; 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.
Rule 13.05 of the Rules relevantly provides:
13.05 Orders on default
…
(2) If a respondent is in default, the Court may:
…
(c) if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
…
(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.
The applicant submits that the respondent is in default within the meaning of rule 13.04(2) for reason that:
(a)the respondent has to date not paid the applicant his wages for the work performed on 28 July 2024 and therefore has not satisfied the applicant’s claim;
(b)the respondent failed to comply with rule 6.01 to give an address for service;
(c)the respondent failed to comply with rule 4.03(3) to file a response to the application by 29 December 2024, being 28 days after he was served with the application;
(d)the respondent failed to comply with order 1 of the 3 February 2025 Directions;
(e)the respondent failed to comply with order 3 of the 3 February 2025 Directions;
(f)the respondent failed to attend the First Court Date on 3 February 2025;
(g)the respondent failed to attend the directions hearing on 2 May 2025; and
(h)having regard to the above, the respondent has failed to defend the proceeding with due diligence.
The proceedings have been on foot since November of last year. The respondent has been given numerous opportunities since the initiation of the proceedings to participate but has not engaged in the proceedings in any substantive way. I am of the view that the respondent is in default for the purposes of rule 13.04.
Applicant’s claims
Section 545(1) of the FW Act empowers this Court to make any order it considers appropriate if it is satisfied that a person has contravened a ‘civil remedy provision’: see s 539(2) of the FW Act.
The applicant alleges that the respondent has contravened the following civil remedy provisions under the FW Act:
(a)section 45 which prohibits an employer from breaching a term of a modern award; and
(b)section 323(1) which prohibits an employer from failing to pay an employee in full in respect of amounts owing for work performed.
The applicant further alleges that the respondent’s breach of ss 45 and 323 of the FW Act involved a ‘serious contravention’ within the meaning of s 557A of the FW Act.
Which Award applies?
In terms of defining the relevant Award, the applicant submits he was employed as ‘Event Staff’ under the Miscellaneous Award 2020 (Miscellaneous Award).
The Full Bench of the Fair Work Commission provided in United Voice v Gold Coast Kennels Discretionary Trust t/as AAA Pet Resort [2018] FWCFB 128 at [36], that the purpose of the Miscellaneous Award is:
to provide minimum (and minimalistic) conditions of employment for a miscellaneous range of employers and employees, not identified by reference to any industry, business function or occupation, who are not covered by any other modern award’ and ‘the low minimum rates of pay prescribed also tend to suggest that the award was intended to capture low paid workers not covered by another award.
The applicant submits that in the course of his employment he performed basic general duties such as:
(a)directing stall holders to their sites;
(b)setting up competition ring marquees;
(c)assisting stall holder with their set up;
(d)distributing flyers and programs; and
(e)general customer service.
The applicant submits, and I accept, that other modern awards that could arguably cover the work performed by the applicant do not apply. In particular, the work performed by the applicant for the respondent is not of the kind covered by either the Travelling Shows Award 2020, nor the Amusement, Events and Recreation Award 2020.
I note the respondent confirmed in a text message sent to the applicant’s mother, at 2.18 pm on 22 July 2024, that the Miscellaneous Award covered the work performed by the applicant.[1]
[1] Affidavit of Jesse Ingleton sworn 21 November 2024 at [16], Annexure ‘E’.
I am satisfied the business operated by the respondent, and the duties performed by the applicant, fall within the classification structure for an Event Staff Level 1 pursuant to cl 12 to the Miscellaneous Award.
Accordingly, I will so declare the Miscellaneous Award covered and applied to the respondent and the applicant in connection with the applicant’s employment with the respondent at all material times.
Contravention of s 45
Section 45 of the FW Act provides that ‘[a] person must not contravene a term of a modern award’.
Applicable rates of pay
The applicant was 18 years of age on 28 July 2024.
Clause 11.1(a) of the Miscellaneous Award provides that for each ordinary hour worked by the employee, the employee must be paid the minimum hourly rate set out in cl 15.1 of the Miscellaneous Award.
The applicant was a Level 1 employee, being the lowest classification in the Miscellaneous Award. Clause 15.4 sets out the ‘Junior Minimum Rates’. Employees who are 18 years old are to receive 68.3% of the adult rate ($23.46), which results in a minimum hourly rate of $16.02.[2]
[2] Miscellaneous Award cl 15.1.
As 28 July 2024 was a Sunday, the Sunday penalty rate in clause 20 of the Miscellaneous Award applied to the work performed by the applicant on that day. That clause provides for a penalty rate of 175% of the applicable minimum hourly rate for work performed by a casual employee on a Sunday. This 175% includes the 25% casual loading referred to in clause 11.1(b) of the Miscellaneous Award 2020. Applying this penalty rate of 175% to the junior minimum hourly rate of $16.02 results in a Sunday rate of $28.04 per hour.
The applicant submits, and I accept, he performed a 10-hour shift on 28 July 2024, which comprised of 9.5 hours of actual work and a 30-minute unpaid meal break. Accordingly, the Miscellaneous Award required the respondent to pay the applicant a total amount of $266.38 for the work the applicant performed on 28 July 2024. This is calculated by multiplying 9.5 hours by the relevant penalty rate of $28.04 per hour.
Having regard to the evidence, the respondent has failed to comply with cls 11 and 15 of the Miscellaneous Award. Therefore, the respondent has contravened section 45 of the FW Act.
Contravention of s 323(1)
The FW Act relevantly provides that:
323(1) Method and frequency of payment
An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
As the uncontested evidence demonstrates, the respondent has not complied with the requirements of s 323(1). The respondent has failed to make any payment to the applicant for the work performed on 28 July 2024.
In support of the allegation that the respondent contravened s 323(1) of the FW Act, the applicant drew my attention to Justice Colvin’s decision in Wilkinson v Wilson Security Pty Ltd (No 3) (2024) 332 IR 387; [2024] FCA 705 (Wilkinson) where at [104] his Honour stated:
… where an employer has identified an amount to be paid but withholds payment or pays only part or defers payment so that the obligation to pay monthly is not performed, then there is a contravention of s 323(1).
The applicant submits, and I accept, there is no dispute on the amount to be paid by the respondent. In particular, the applicant relies on the payslip provided to him to support this contention.[3] Accordingly, I find the respondent has contravened s 323(1) of the FW Act and will so declare.
[3] Affidavit of Jesse Ingleton, sworn on 21 November 2024, Annexure “L” at 40.
Was there a serious contravention?
Section 557A(1) of the FW Act provides that:
(1) A contravention of a civil remedy provision by a person is a serious contravention if:
(a) the person knowingly contravened the provision; or
(b) the person was reckless as to whether the contravention would occur.
Note: For the liability of bodies corporate for serious contraventions, see section 557B.
Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.
A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.
Sections 45 and 323(1) of the FW Act are civil remedy provisions: see s 539 of the FW Act.
The applicant asserts that the contraventions were engaged in knowingly, rather than recklessly. The uncontested evidence, which I accept, demonstrates the respondent:
(a)knew the Miscellaneous Award covered the employment because he stated this in his text message sent to the applicant’s mother on 22 July 2024;[4]
(b)knew the rates payable under the Miscellaneous Award because he provided, by way of email to the applicant on 12 August 2024, a payslip in the applicant’s name detailing the applicable Award rate;[5]
(c)knew he had an obligation to pay the applicant because he had made assertions to the applicant’s parents and legal representatives that the applicant ‘will be paid’;[6]
(d)thereby knew that he had not paid the applicant the full amount, or any amount, payable to the applicant in relation to the work performed; and
(e)was put on notice from as early as 6 August 2024 that his non-payment involved a breach of ‘workplace laws’.[7]
[4] Affidavit of Jesse Ingleton, sworn on 21 November 2024, Annexure “E” at 19.
[5] Affidavit of Jesse Ingleton, sworn on 21 November 2024, Annexure “L” at 40.
[6] Affidavit of Jesse Ingleton, sworn on 21 November 2024, Annexure “E” at 23.
[7] Affidavit of Jesse Ingleton, sworn on 21 November 2024, Annexure “H” at 31.
Accordingly, I am of the view that for the purposes of s 557A(1) of the Act, the respondent knowingly contravened the civil remedy provisions in ss 45 and 323(1). Therefore, I will so declare that those contraventions were serious contraventions.
RELIEF SOUGHT
By way of summary, I will so declare that:
(a)the respondent to be in default for the purposes of r 13.05 of the Rules;
(b)the respondent contravened ss 45 and 323(1) of the FW Act; and
(c)the contraventions to be ‘serious contraventions’ within the meaning of s 557A(1) of the FW Act.
In relation to the entitlement to relief, I will so order that pursuant to s 545(1) of the FW Act, the respondent pay as compensation to the applicant the amount of $266.38. The applicant also seeks interest on that amount pursuant to s 547 of the FW Act. I am also satisfied that it is appropriate to include in the order for payment of compensation an amount of interest on the underpayment amount of $266.38 for the period 28 July 2024 to the date of judgment at the rate of 8.35% being the applicable pre-judgment interest rate prescribed by the Federal Court of Australia. The interest amount is $20.39. Therefore, the total compensation amount I will so order is $286.77. In my view, it is appropriate that this total compensation amount be paid within 14 days of that order, that being on or by 11 July 2025.
In terms of any further claim for penalty, interest and costs, the applicant seeks directions for the filing of material regarding those issues and for a further hearing date to deal with those issues. I will so order.
I therefore make the declarations and orders set out at the commencement of these reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 27 June 2025
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