Liang v Snackhome Pty Ltd

[2017] FCCA 2665

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIANG v SNACKHOME PTY LTD & ANOR [2017] FCCA 2665

Catchwords:
PRACTICE AND PROCEDURE – Default judgment – whether the applicant appears entitled to relief on the statement of claim – whether the court has power to grant default judgment.

Legislation:
Federal Circuit Court Rules (Cth) 2001, r.13.03B
Fair Work Act 2009 (Cth), s.566

Applicant: XIN KUAN LIANG

First Respondent: SNACKHOME PTY LTD

Second Respondent: WEN MA

File Number: SYG 1235 of 2017

Judgment of: Judge Emmett

Hearing date: 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Sydney

Delivered on: 31 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Dilan Mahendra

Solicitors for the Applicant: Ms Katherine Sakoulas
Sparke Helmore

No appearance by or on behalf of the Respondent

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1235 of 2017

XIN KUAN LIANG

Applicant

And

SNACKHOME PTY LTD

First Respondent

WEN MA

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed on 15 September 2017, the applicant seeks, inter alia, orders that default judgment be entered for the applicant against the respondent pursuant to r.13.03B(2)(c) of the Federal Circuit Court Rules (Cth) (“the Rules”) 2001 for the relief identified in an Amended Statement of Claim filed on 26 May 2017.

2. The applicant also seeks the payment of service fees for the engagement of process servers and postage of documents, calculated from the day of the proceedings, being, 21 April 2017, in an amount of $339.20.

3. The total amount sought by the applicant, as reflected in the Statement of Claim, is $57,208.93. That total includes a breakdown in the following amounts:

Full-time, Adult, Level 3 employee under the Food, Beverage and Tobacco Manufacturing Award 2010
Description of unpaid entitlements	Amount
Payment in lieu of notice of termination of 2 weeks (based on 38 hours per week)	$1,329.24
Payment for redundancy upon termination of the Applicant’s employment (based on 38 hours per week)	$3,987.72
Payment for untaken annual leave and corresponding loading as at termination of the Applicant’s employment (based on 38 hours per week)	$6,247.43
Minimum superannuation guarantee amount	$6,112.58
Total wages owed (13 October 2011 – 25 October 2013)	$28,271.88
Total amount owing	$45,948.85

Start Date	End Date	Days	Pre-judgment interest – Cash rate plus 4% (Per cent)	Amount per day	Total
25/Oct/2013	31/Dec/2013	68	6.75%	$8.4974	$577.82
01/Jan/2014	30/Jun/2014	181	6.5%	$8.1827	$1481.06
01/July/2014	31/Dec/2014	184	6.5%	$8.1827	$1505.61
01/Jan/2015	30/Jun/2015	181	6.5%	$8.1827	$1481.06
01/Jul/2015	31/Dec/2015	184	6%	$7.5532	$1389.80
01/Jan/2016	30/Jun/2016	182	6%	$7.5326	$1370.93
01/Jul/2016	31/Dec/2016	184	5.75%	$7.2187	$1328.25
01/Jan/2017	30/Jun/2017	181	5.5%	$6.9238	$1253.21
01/Jul/2017	15/Sep/2017	77	5.5%	$6.9238	$533.13
Total	1422	$10,920.88

1. Rule 13.03B(2)(c) of the Rules relevantly provides that if a proceeding was commenced by way of statement of claim, the Court may give judgment against a respondent for the relief that the applicant appears entitled to on the statement of claim; and the Court is satisfied it has power to grant.

2. On 25 July 2017, the Court made orders for substituted service upon the respondents of various documents including pleadings, evidence and various orders made by me. Subsequent affidavits of service were filed to satisfy the Court that subsequent orders were also served upon the applicant.

3. Today the applicant read the affidavit of Ms Katherine Sakoulas, sworn 26 October 2017. Ms Sakoulas’s affidavit annexed various documents which I accept comply with the Orders made by the Court for substituted service on 25 July 2017.

4. In the circumstances, I am satisfied that all efforts have been made to ensure that the respondents are aware of this proceeding and the various pleadings, orders and evidence filed against them.

5. On 24 May 2017, Orders were made by me requiring each of the respondents to file and serve any Defence by 16 June 2017. On 8 August 2017, time was extended to the respondents to file and serve any Defence by 25 August 2017.

6. I am satisfied on the evidence before me that the Application in a Case, filed on 15 September 2017, together with all evidence, submissions in support and all relevant Court orders have been served upon the respondents in accordance with the Orders for substituted service.

7. I am further satisfied on the evidence before me, that neither respondent has complied with any order made by the Court in this proceeding. Moreover, there has been no document filed at any time by either of the respondents, either in accordance with directions made by the Court or otherwise. Nor has there been any communication received by the Court from either of the respondents.

8. The Amended Statement of Claim makes clear the basis of the claims of the applicant against each of the respondents. I accept that on the face of that pleading, the applicant appears entitled to the liquidated sums referred to above. 

9. I am further satisfied that under s.566 of the Fair Work Act 2009 (Cth) that this Court has jurisdiction in relation to any civil matter arising under it.

10. Accordingly I am satisfied that the requirements of r.13.03B(2)(c)(i) and (ii) of the Rules have been met.

11. In the circumstances, I am satisfied that orders 1.3, 1.4 and 1.5 and 2.3 of the orders sought in the Application in a Case should be made. I am not satisfied that orders 1.1, 1.2, 1.6, 2.1, 2.2 or 2.4 should be made. 

12. The application should otherwise be dismissed and orders should be made fixing costs in the amount of $339.20, being the payment of service fees for the engagement of process servers and postage of documents from 21 April 2017.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 2 November 2017