Liu v Liashenko

[2013] FCCA 470

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v LIASHENKO [2013] FCCA 470

Catchwords:
INDUSTRIAL LAW – PRACTICE & PROCEDURE – Whether default judgment should be entered pursuant to rule 13.03B of the Federal Circuit Court Rules 2001(Cth) – whether application should be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – default judgment entered pursuant to rule 13.03B of the Federal Circuit Court Rules 2001 (Cth) – application dismissed.

Legislation:
Federal Circuit Court Rules2001 (Cth) rr.13.03B, 13.03C, 26.01
Fair Work Transitional Provisions of Consequential Amendment Act 2009 (Cth) sch.3A
Federal Circuit Court Act 1999 (Cth) ss.76, 77
Fair Work Act 2009 (Cth) s.547

Applicant: XIN FU LIU

Respondent: VICTOR LIASHENKO

File Number: SYG 2538 of 2012

Judgment of: Judge Emmett

Hearing date: 23 May 2013

Date of Last Submission: 23 May 2013

Delivered at: Sydney

Delivered on: 23 May 2013

REPRESENTATION

Counsel for the Applicant: Ms Deborah Dinnen

Solicitors for the Applicant: Gilbert and Tobin

No appearance by or on behalf of the Respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2538 of 2012

XIN FU LIU

Applicant

And

VICTOR LIASHENKO

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The applicant seeks that judgment be entered against the respondent in particular amounts identified in the Statement of Claim filed on 6 March 2013, pursuant to r.13.03B(2) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”).

2. The applicant also seeks that the proceeding be dismissed, pursuant to r.13.03C(1)(e) of the Rules, by reason of the failure of the respondent to appear at today’s scheduled directions hearing.

3. I note that on 14 February 2013, I made orders directing that the matter continue by way of pleadings and for the filing and service of a Statement of Claim and the serving on the respondent of a copy of the Orders made on that day. I note that order 6 states that:

   “If there’s no appearance by the respondent and no Defence filed by the respondent before the next Court date, default judgment may be entered against the respondent on that occasion.”

4. The time for filing a Defence under the Rules is 14 days from service of the Statement of Claim. There has been no document filed by or on behalf of the respondent. Nor has there been any communication received by this Court from the respondent, other than an envelope returned to the applicant’s lawyers containing a letter sent by those lawyers to the respondent enclosing various documents. I am informed by Ms Dinnen, counsel for the applicants, that there has been no communication received by the applicants or their lawyers from the respondent in respect of this proceeding.

5. In support of the application to proceed ex parte this morning, Ms Dinnen read the affidavits of service of Catherine Shatts, affirmed 15 May 2013, Steven Goodwin, sworn 11 March 2013, and a further affidavit from Steven Goodwin, sworn 19 February 2013. Based on that evidence I am satisfied that the respondent has been served with all the documents required by the Court in sufficient time for the respondent to participate in this proceeding, had the respondent chosen to do so.

6. In relation to the applicant’s application under r.13.03B(2) of the Rules, I note that the Court may enter judgment in favour of the applicant where the proceeding was commenced by an Application supported by a Statement of Claim, and the Court has ordered that the proceedings continue on pleadings, and that the applicant appears entitled to the relief sought on the Statement of Claim; and, the Court is satisfied that it has the power to grant the relief sought.

7. Ms Dinnen referred the Court to the Statement of Claim in which the applicant claimed to have been employed by the respondent as a plasterer from 14 April 2008 to 20 January 2010. The Statement of Claim pleads that the contract of employment was oral and that the terms of the employment were that the applicant was to be paid $200 a day in respect of work done for the respondent, at the respondent’s direction. The pleading refers to the Building and Construction Industry State Award, which it alleges governs the applicant’s contract of employment with the respondent. The pleading also pleads the relevant amounts due to the applicant in respect of the employment, which the pleading alleges was undertaken.

8. The Statement of Claim pleads that the award referred to is taken to be the NSW State award known as the Building and Construction Industry State Award, under sch.3A of the Fair Work Transitional Provisions of Consequential Amendment Act 2009 (Cth). In the circumstances, I am satisfied that the Court has power to grant the relief sought. I am also satisfied that the applicant appears entitled to the relief sought in the Statement of Claim.

9. I note that the applicant does not rely on paragraphs 28 to 33, and paragraph 40 of the Statement of Claim. In the circumstances, I am satisfied that judgment should be entered for the applicant in the amount claimed in the Statement of Claim, being $18,195.97, for entitlements accrued during the employment and pursuant to the Award.

10. The applicant also seeks interest on the judgment sum. The interest sought is calculated at the Federal Court of Australia rate. I note that s.76 of the Federal Circuit Court Act 1999 (Cth) provides for the making of an order for interest up to judgment, and that s.77 of the Federal Circuit Court Act 1999 (Cth) provides for any order of interest following the entering of judgment.

11. I note that r.26.01 of the Rules provides that interest be calculated at the Federal Court of Australia rates. I also note that s.547 of the Fair Work Act 2009 (Cth) provides that a judgment sum in respect of a proceeding such as this must include an amount of interest on the sum ordered unless good cause is shown to the contrary.

12. The interest sought by the applicant is in accordance with paragraph 39 of the Statement of Claim, which has been amended to reflect interest on the judgment sum only. The total of the amount of interest sought is $4,805.67. I am satisfied that in the circumstances an order of interest at that rate is appropriate. In relation to interest following the entering of judgment, I am satisfied that interest should continue at the Federal Court rate.

1. Otherwise the proceeding before this court commenced by way of application filed on 6 November 2012 is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  6 June 2013