Molina v Galloway

Case [2022] FedCFamC2G 904

Federal Circuit and Family Court of Australia

(DIVISION 2)

Molina v Galloway [2022] FedCFamC2G 904  

File number(s): SYG 930 of 2022
Judgment of: JUDGE GIVEN
Date of judgment: 1 November 2022
Catchwords: INDUSTRIAL LAW – default judgment – solicitor as respondent employer – failure to pay compensation ordered by Fair Work Commission – failure to pay superannuation and long service leave entitlements – failure to file Notice of Address for Service – failure to defend proceedings with due diligence – failure of respondent to attend Court ordered mediation – whether failure to attend mediation constitutes default – imposition of penalties – discount for corrective action – whether unreasonable acts or omissions caused applicant to incur costs – mediation costs awarded on party/party basis – failure to engage in reasonable process of settlement – remainder of costs of proceedings ordered on indemnity basis  
Legislation:

Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 323, 405, 545, 557, 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 191

Federal Court of Australia Act 1976 (Cth) s 37M

Long Service Leave Act 1955 (NSW) s 4

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05, 13.06

Federal Court Rules 2011 (Cth) r 5.22
Cases cited:

Adamczak v Alsco Pty Ltd (No 4) (2019) 284 IR 337

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433

Australian Building and Construction Commissioner v Construction, Mining, Forestry, and Energy Union (2018) 262 CLR 157

Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383

Australian Competition and Consumer Commission v Yellow Page Marketing BV (No. 2) (2011) 195 FCR 1

Carr v ILSC (Brisbane) Pty Ltd, Pathik v ILSC (Brisbane) Pty Ltd (No 2) [2019] FCCA 1028

Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Council of the Law Society of New South Wales v Galloway [2012] NSWADT 176

Fair Work Ombudsman v ADADN Pty Ltd [2021] FCCA 756

Fair Work Ombudsman v Anvisco Pty Ltd (In Liq) [2022] FedCFamC2G 738

Fair Work Ombudsman v Bosen Pty Ltd [2011] VMC 81

In Fair Work Ombudsman v Port Douglas Investments As Trustee For The Theo Sourlos Family Trust & Anor [2018] FCCA 488

Kelly v Fitzpatrick (2007) 166 IR 14

Louis Vuitton Malletier v Sonya Valentine Proprietary Limited (2013) 222 FCR 45

Luna Park v Bose [2006] FCA 94

Mayberry v Kijani Investments Pty Ltd as Trustee for the Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238

Milena Molina & Anor v Brett Galloway [2022] FWC 776

Milena Molina and Raymond Zhai v Brett Galloway [2022] FWC 776

Rossetti v Aus Gold Mining Group Pty Ltd [2018] FCA 1649

Ryan v Primesafe [2015] 323 ALR 107

Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336
Division: Division 2 General Federal Law
Number of paragraphs: 92
Date of hearing: 1 November 2022
Place: Sydney

Continue reading Molina v Galloway

Sign in free to access the full text

Details
AGLC
Molina v Galloway [2022] FedCFamC2G 904
Case
[2022] FedCFamC2G 904
Decision Date

CaseChat Overview and Summary

This case involves a dispute between Milena Molina and Raymond Zhai, who are the applicants, and Brett Galloway, who is the respondent. The applicants are seeking enforcement of orders made by the Fair Work Commission (FWC) for compensation in lieu of reinstatement and for penalties for alleged non-compliance with those orders. The proceedings were initiated in the Federal Circuit and Family Court of Australia (FCFCA) and the applicants have applied for substituted service as the respondent has not responded to attempts to serve him personally. The legal issues before the court include whether substituted service is appropriate given the respondent's failure to comply with orders to provide an address for service, and whether the applicants are entitled to the relief sought in their Statement of Claim.

The court considered the applicants' application for substituted service, noting that the respondent had failed to comply with prior orders to provide an address for service. The court held that substituted service was appropriate in the circumstances, particularly as the applicants had made multiple attempts to serve the respondent personally without success. The court also considered the relief sought by the applicants, including declarations, civil penalties, and costs. The court noted that the applicants had already been awarded compensation by the FWC and that the issue of non-compliance with those orders was before the court. The court found that the applicants had made out a prima facie case for the relief sought and that substituted service was appropriate in the circumstances.

The court made orders for substituted service, allowing the applicants to serve the respondent by emailing him at a particular Gmail address. The court also made orders for the preparation of the matter, including for the respondent to file and serve a Defence within a specified timeframe. The court further ordered that the matter be referred to mediation before a Registrar of the Court, with a view to resolving the matter without the need for a hearing. In the event that mediation was unsuccessful, the parties were ordered to jointly approach the Chambers to Judge Given for a directions hearing. Costs were reserved pending the outcome of the mediation and any further directions from the court.

No final orders were made in this case as the matter is still pending before the court. The court's orders were focused on the procedural aspects of the case, including service and preparation, and the referral to mediation. The court held that the applicants had made out a prima facie case for the relief sought and that substituted service was appropriate in the circumstances. The matter remains before the court for further directions and a potential hearing if the parties are unable to resolve the dispute through mediation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These proceedings were commenced by the applicants on 29 June 2022 consequent upon the following orders being made in their favour by DP Easton of the FWC on 6 April 2022 following delivery of judgment: see Milena Molina & Anor v Brett Galloway [2022] FWC 776 (FWC judgment):Order for Compensation. Further to the decision in [2022] FWC 776, the Fair Work Commission orders pursuant to s.392 of the Fair Work Act 2009 (Cth):[1]Mr Brett Galloway is to pay Ms Milena Molina the sum of $41,305.78 as compensation in lieu of reinstatement, less taxation as required by law, plus an additional component for superannuation.[2]Mr Brett Galloway is to pay Mr Raymond Zhai the sum of $23,586.41 as compensation in lieu of reinstatement, less taxation as required by law, plus an additional component for superannuation.[3] The above amounts are to be paid within 21 days of the date of this Order. By their Statement of Claim filed on 29 June 2022 (SOC), the applicants alleged failure to comply with the orders of the FWC and sought declarations for contraventions of the Act, civil penalties and costs. The proceedings were first made returnable before me on 29 July 2022. On 27 July 2022 the applicants filed an Application in a Proceeding seeking orders for substituted service after multiple attempts to serve Mr Galloway personally, had been unsuccessful. On 20 July 2022 the applicants’ solicitor sent Mr Galloway the first offer (on a without prejudice basis), to which no response was received (see Second Barry Affidavit at [20] to [21]). On 29 July 2022 the matter came before me for a first court date. Although based on the matters which underpinned the substituted service application an appearance was not expected from Mr Galloway, Counsel appeared for him on that occasion. At that first court date I made orders inter alia that the respondent file and serve a Notice of Address for Service within seven days and that until such time as that occurred, service on Mr Galloway could be effected by emailing him at a particular Gmail address (Gmail address). I otherwise made orders for the preparation of the matter which included:…2. The respondent must file and serve a Notice of Address for Service on or by 5 August 2022. 3. The respondent must file and serve a Defence on or by 12 August 2022. 4. The Applicant must file and serve any Reply on or by 16 September 2022. 5. The matter be referred to mediation before a Registrar of the Court pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), at which each person participating in the mediation including legal representatives, whether attending in person or by video/audio link, is to attend for the full duration of the mediation. 6. In the event that the mediation referred to in order 5 is unsuccessful, the parties must jointly approach the Chambers to Judge Given within 7 days of the concluded mediation, with a view to the matter being relisted for a directions hearing.7. Costs are reserved. …

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.