Miljevic v Ital One Holdings Pty Ltd - [2015] FCCA 1317

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILJEVIC v ITAL ONE HOLDINGS PTY LTD

[2015] FCCA 1317

Catchwords:
INDUSTRIAL LAW – Small claims application – allegations of under payment of wages – failure to pay loadings and penalty rates under Restaurant Industry Award 2010 – respondent aware of hearing date – respondent failed to file any material or attend the hearing – respondent in default – undefended hearing.

Legislation:

Fair Work Act 2009 (Cth) s.548
Federal Circuit Court Rules 2001 (Cth) rr.13.03A, 13.03B, 13.03C

McShane v Image Bollard Pty Ltd [2011] FMCA 215
Black v Young Republic & Anor [2012] FMCA 729
Jones v Groovy Freighters Pty Ltd [2010] FMCA 673
Lebot v Energetic IT Pty Ltd [2011] FMCA 755

Applicant:

STANKO MILJEVIC

Respondent:

ITAL ONE HOLDINGS PTY LTD

File Number:

MLG 1744 of 2014

Judgment of:

Judge O’Sullivan

Hearing date:

6 May 2015

Date of Last Submission:

6 May 2015

Delivered at:

Melbourne

Delivered on:

6 May 2015

REPRESENTATION

The Applicant:

Appeared in person by telephone link

The Respondent:

No appearance

ORDERS

THE COURT ORDERS THAT:

The applicant have leave to proceed undefended pursuant to Rules 13.03A(2)(a), (b) (ii), (iii), (iv), (vi), (vii) and 13.03B(2)(d) and/or Rule 13.03C(1)(e) of the Federal Circuit Court Rules2001 (“the Rules”).

THE COURT DECLARES THAT:

The respondent contravened the Restaurant Industry Award 2010 and the Fair Work Act 2009 (Cth) (“FW Act”).

THE COURT ORDERS THAT:

Pursuant to section 545(2) of the FW Act the respondent pay to the applicant the sum of $17, 312.78 (gross) within 21 days of service of these orders.
The applicant shall serve the respondent with a sealed copy of these orders within 21 days.

AND THE COURT NOTES:

Rules 16.05.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1744 of 2014

STANKO MILJEVIC

Applicant

And

ITAL ONE HOLDINGS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court is an application filed on 26 August 2014 by Stanko Miljevic (“the applicant”). The application was filed in the Small Claims List of the Fair Work Division of the Court. The application was supported by a form 5 and an affidavit, which the applicant swore on 17 April 2014 and filed on 26 August 2014. The respondent to the application is Ital One Holdings Pty Ltd (“the respondent”).

The application was given a hearing date of 18 February 2015.
However, prior to the hearing both the applicant (who was by that time no longer in Australia) and the respondent sought to adjourn that hearing (although for different reasons). Neither party made a proper application to do so. Nevertheless, with the agreement of both parties, the respondent (represented by its director) and the applicant appeared before the Court, both via telephone link on 13 February 2015. The following orders were made:

“THE COURT ORDERS THAT:
1.The hearing listed on 18 February 2015 be vacated.
2.The Application filed on 26 August 2014 be adjourned for hearing on 6 May 2015 at the Federal Circuit Court of…

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 1317
Decision Date: 6 May 2015

CaseChat Overview and Summary

In *Miljevic v Ital One Holdings Pty Ltd*, the Federal Circuit Court considered the application of Rules 13.03A, 13.03B, and 13.03C of the *Federal Circuit Court Rules 2001* concerning default by a party and absence from a hearing. The specific circumstances leading to the dispute are not detailed, but the court was required to determine the consequences of a party's failure to comply with court orders or rules, or their absence from a scheduled hearing.

The central legal issues before the court were the powers available to the Court when a party is in default, as defined by Rule 13.03A, and the powers available when a party is absent from a hearing, as outlined in Rule 13.03C. Specifically, the court had to consider whether to grant default judgment against a respondent, dismiss an application, or make other orders as it deemed just, in accordance with the provisions of Rules 13.03B and 13.03C.

The court's reasoning would have involved an interpretation of the Rules to ascertain the conditions under which a party is considered in default and the range of orders available to the Court in such circumstances. Rule 13.03A defines default for both applicants and respondents, while Rule 13.03B outlines the Court's powers, including staying or dismissing proceedings, granting leave to enter judgment for debt or liquidated damages, or giving judgment for the relief sought. Rule 13.03C provides for orders to be made when a party is absent from a hearing, which can include dismissing applications or cross-claims, or proceeding with the hearing. The Court would apply these rules to the facts before it to determine the appropriate course of action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rules 13.03A, 13.03B and 13.03C of the Federal Circuit Court Rules2001 (“the Rules”) provide:“Rule 13.03A:1.For rule 13.03B, 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 rule 13.03B, 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(v) file and serve a document required under these Rules; orRule 13.03B1.If an applicant is in default, the Court may order that:(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or(b)a step in the proceeding be taken within the time limited in the order; or(c)if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.(2)If a respondent is in default, the Court may:(a)order that a step in the proceeding be taken within the time limited in the order; or(b)if the claim against the respondent is for a debt or liquidated damages--grant leave to the applicant to enter judgment against the respondent for:(i) the debt or liquidated damages; and(ii) if appropriate--costs; or(c)if the proceeding was commenced 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(d)give judgment or make any other order against the respondent; or(e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.(3)The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:(a)an affidavit, or affidavits, proving:(i) service of the application claiming judgment for the debt or liquidated damages; and(ii) that the respondent is in default; and(b)an affidavit for the debt or liquidated damages in accordance with the approved form.(4)Unless the Court otherwise orders, if a respondent to a cross-claim is in default:(a)a judgment or decision on any claim, question or issue in the proceeding on the originating process; or(b)any other cross-claim in the proceeding;is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.(5)In subrule (4):decision includes a decision by consent.Judgment includes a judgment by default or by consent.(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.Rule 13.03C(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:(a) adjourn the hearing to a specific date or generally;(b) order that there is not to be any hearing, unless:(i) the proceeding is again set down for hearing; or(ii) any other steps that the Court directs are taken;(c)if the absent party is an applicant--dismiss the application;(d)if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.2.If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(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.”

Ratio Decidendi

Legal Principle Established

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