Lei v Chance Trading Pty Ltd - [2015] FCCA 441

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEI v CHANCE TRADING PTY LTD

[2015] FCCA 441

Catchwords:
INDUSTRIAL LAW – Adverse action – dismissal due to pregnancy – coercion – respondent not attending hearing – compensation for economic loss and non-economic loss – penalties.

Legislation:

Fair Work Act 2009 ss.341, 342, 343, 351, 365, 545, 546
Federal Circuit Court Rules 2001 rr.13.03A, 13.03B

Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Applicant:

JIA LEI

Respondent:

CHANCE TRADING PTY LTD

(ACN 126 466 500)

File Number:

MLG 1369 of 2014

Judgment of:

Judge Riley

Hearing date:

9 February 2015

Date of Last Submission:

9 February 2015

Delivered at:

Melbourne

Delivered on:

9 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Dowsett

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

The respondent did not appear

Solicitors for the Respondent:

The respondent was not represented

DECLARATION

The respondent contravened:
(a)s.351 of the Fair Work Act 2009; and
(b)s.343 of the Fair Work Act 2009.

ORDERS

The respondent pay the applicant a pecuniary penalty under s.546(1) of the Fair Work Act 2009 in the sum of $25,000.
The respondent pay the applicant $21,139.91 gross under s.545(1) of the Fair Work Act 2009 for economic loss being the wages that the applicant would have earned if she had not been dismissed.
The respondent pay the applicant $10,000 under s.545(1) of the Fair Work Act 2009 for non-economic loss consisting of hurt and humiliation.
The respondent pay the amounts specified in orders 1, 2 and 3 within 28 days.
There be no order as to costs.

NOTATION
Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1369 of 2014

JIA LEI

Applicant

And

CHANCE TRADING PTY LTD

(ACN 126 466 500)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for default judgment brought in the context of a fair work application. The applicant was an employee of the respondent, which is a corporation.
Under r.13.03B(2)(d) of the Federal Circuit Court Rules 2001 the court may give judgment against a respondent who is in default.

The definition of a party in default is found in r.13.03A. Subrule13.03A(1) provides that a respondent is in default if the respondent fails to comply with an order of the court.
There is a company search before the court which shows the address of the respondent’s registered office. There is an affidavit before the court which shows that the initiating application, the claim under the Fair Work Act 2009 (“the Act”) and the orders made by a registrar on

15 August 2014 were posted to that address on 22 August 2014. I take it from the affidavit of service that those documents were received by the respondent.
The order made by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 441
Decision Date: 9 February 2015

CaseChat Overview and Summary

In the matter of *Lei v Chance Trading Pty Ltd*, the applicant, Lei, sought to set aside a default judgment entered against them in favour of the respondent, Chance Trading Pty Ltd. The dispute arose from an alleged breach of a loan agreement. The application to set aside the default judgment was heard by Judge Riley in the District Court of New South Wales.

The primary legal issue before the court was whether the applicant had established sufficient grounds to set aside the default judgment. This required the court to consider whether the applicant had a meritorious defence to the claim and whether there was a good reason for the delay in filing a defence. The court also had to determine if the default judgment had been irregularly obtained.

Judge Riley applied the principles established in *Colonial Bank of Australasia Ltd v Berridge* and *Commonwealth Bank of Australia v Hasham*, which require a party seeking to set aside a default judgment to demonstrate both a defence on the merits and a satisfactory explanation for the failure to file a defence. The court found that the applicant had failed to provide a sufficiently detailed or credible explanation for their delay in responding to the proceedings. Furthermore, the defence as pleaded was considered to be vague and lacking in particularity, failing to raise a real question to be tried. Consequently, the court concluded that the applicant had not satisfied the necessary criteria for setting aside the default judgment.

The application to set aside the default judgment was dismissed.

Orders