Madson v Fandanstic Pty Ltd (No.2)

[2020] FCCA 2413

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADSON v FANDANSTIC PTY LTD (No.2) [2020] FCCA 2413

Catchwords:
INDUSTRIAL LAW – Fair Work – where the respondent filed a counterclaim or cross-claim seeking damages on the basis the applicant defrauded the employer – where the respondent has failed to comply with an order to file its evidence-in-chief – where no appearance by the respondent – respondent is in default of an order – whether a costs order should be made under s 570 of the Fair Work Act.

Legislation:

Fair Work Act 2009 (Cth), ss. 570, 570(2).

Federal Circuit Court Rules 2001(Cth), rr. 13.03B, 13.03C

Applicant: DEBBIE MADSON

Respondent: FANDANSTIC PTY LIMITED

File Number: DNG 40 of 2018

Judgment of: Judge Young

Hearing date: 11 August 2020

Date of Last Submission: 11 August 2020

Delivered at: Darwin

Delivered on: 11 August 2020

REPRESENTATION

Counsel for the Applicant: Mr M Grove

Solicitors for the Applicant: Ward Keller

The Respondent: No appearance

ORDERS

THE COURT ORDERS THAT:

1. The counter-claim of the respondent be dismissed in accordance with rules 13.03B and 13.03C of the Federal Circuit Court Rules 2001.

2. All extant applications be dismissed.

3. That in accordance with rule 16.05 of the Federal Circuit Court Rules 2001 the respondent has liberty to apply to set aside the orders made today on filing and serving an application and affidavit setting out his reasons for wanting the orders set aside and explaining their non-attendance at court today within 28 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 40 of 2018

DEBBIE MADSON

Applicant

And

FANDANSTIC PTY LTD

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application arising out of an application by Ms Madson for a remedy under the Fair Work Act.  She had indicated that she wished to discontinue that proceeding and in fact did so.  However by that time the respondent, Fandastic Pty Ltd, had filed a counterclaim or cross-claim seeking damages or compensation in the sum of about $36,000 from Ms Madson on the basis that Ms Madson had defrauded the employer by forging, in effect, timesheets and seeking payment upon the basis of the fraudulent time sheets.  That was the allegation made and the respondent, who then had in substance become the applicant, was ordered on 5 November to file evidence-in-chief on affidavit within 90 days.  Ms Madson as the applicant was ordered to reply within a further 28 days from when the matter was adjourned for trial for 3 and 4 September.

3. The matter was listed for a check mention today to see whether it was ready to proceed.  It was apparent that the respondent had failed to comply with the order to file its evidence-in-chief and is therefore in default.  There was no appearance by the respondent or counsel for the respondent, Ms McLaren, who had appeared apparently on a direct brief basis on the last occasion.  Accordingly, I am satisfied that the counterclaim and indeed the whole proceeding, as the counterclaim was the only part remaining, ought to be dismissed under rule 13.03B and rule 13.03C.  The first because the respondent is in default of an order and secondly the respondent is in default of appearance as she has not appeared, so is in default on that basis too.

4. Mr Grove, who appeared by telephone for Ms Madson today, sought a cost order. The obstacle was that section 570 of the Fair Work Act which provides that for a party to proceed in this Court in relation to a matter arising under this Act, may be ordered to pay costs in accordance with subsection (2). This may well have provided an avenue for the applicant to seek costs, particularly section 570, subsection (2)(b) which provides the costs that may be ordered only if:

   the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.

5. I said to Mr Grove that if there had been correspondence to the effect that the applicant was instructing a solicitor and that if the respondent did not wish to continue the respondent ought to notify the solicitor as soon as possible in order to avoid incurring further costs I would have had no hesitation in making an order for the costs.  However, Mr Grove has at this stage not filed a notice of appearance.  The respondent would have had, as I understand it, no reason to believe that he was acting for Ms Madson and no reason to communicate with him.

6. It seems to have simply taken the view that it did not want to pursue Ms Madson and did not need to notify anybody.  As I say it had no reason to believe that Mr Grove was now acting, indeed, until the Court received a telephone message from Mr Grove yesterday there was no reason to believe he was acting either because he had not filed a notice.

7. Mr Grove, with some hesitation, I decline to make a costs order though I might say that I consider the conduct of the respondent to be less than professional. Mr Grove also asserted that section 570 did not apply to the respondent’s cross-claim or counterclaim, which was simply a common law. He did not refer me to authority and I am not able to accept that submission.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 28 August 2020