Mustafa v Core Service Holdings Pty Ltd
[2025] FedCFamC2G 940
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mustafa v Core Service Holdings Pty Ltd [2025] FedCFamC2G 940
File number(s): SYG 2030 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 13 March 2025 Catchwords: INDUSTRIAL LAW - application in a proceeding for default judgment pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to attend Court Legislation: Fair Work Act 2009 (Cth) ss 45, 116, 116B, 141, 323, 405, 545, 546, 550
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 141
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.03, 9.04, 13.05, 13.06
Cases cited: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission (ACCC) v Dateline Imports Pty Ltd (2014) 143 ALD 136
Australian Competition and Consumer Commission (ACCC) v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1
Fair Work Ombudsman v Mobile Food Vand & Trucks Pty Ltd [2021] FCCA 882
Division: General Federal Law Number of paragraphs: 31 Date of hearing: 13 March 2025 Place: Sydney Solicitor for the Applicant: Mr W Clarke, Marrickville Legal Centre Solicitor for the Respondents: No appearance ORDERS
SYG 2030 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD MUSTAFA
Applicant
AND: CORE SERVICE HOLDINGS PTY LIMITED (ACN 613 283 015)
First Respondent
VAIBHAV KAPUR
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.Pursuant to rr 13.06(1)(e) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), judgment is entered for the applicant by reason of the respondents having not satisfied the applicant’s claim pursuant to rr 13.04(2)(a) of the Rules in conjunction with:
(a)the respondents' failure to give an address for service pursuant to rr 6.01(1) and 9.04 of the Rules, and in contravention of orders of the Court made on each of:
(i)24 October 2024; and
(ii)12 December 2024
which constitutes a default on the part of the respondents pursuant to rr 13.04(2)(b)(i) and (iii) of the Rules.
(b)the respondents' failure on 2 occasions to file and serve a response to the application and amended application within 28 days after service of the applications in accordance with r 4.03(3) of the Rules, which constitutes a default on the part of the respondents pursuant to r 13.04(2)(b)(ii) of the Rules;
(c)the respondents' failure to comply with an order of the Court in the proceeding, being order 4 made on 24 October 2024, which constitutes a default on the part of the respondents pursuant to r 13.04(2)(b)(iii) of the Rules;
(d)the respondents' failure to attend Court on each of 24 October 2024, 12 December 2024, 19 February 2025 and 13 March 2025; and
(e)in light of the above defaults, the respondents' failure to defend the proceeding
(f)with due diligence which, constitutes a separate default for the purposes of r 13.04(2)(b)(vii) of the Rules.
2.Upon the admissions which the respondents are taken to have made consequent upon defaults pursuant to r 13.04(2) of the Rules, the Court declares that:
(a)the first respondent has contravened s 405 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay the applicant the amount of $5,261.44 ‘less taxation deductions’, being compensation for unfair dismissal, as ordered by the Fair Work Commission on 19 June 2024;
(b)pursuant to clause 15 of the Security Services Industry Award 2010 MA00016 (the Award) and s 323 of the FW Act, by underpaying the amount of $3,619.46 in wages to the applicant;
(c)pursuant to clause 20.2 of the Award and s 116B of the FW Act, by failing to pay the amount $6,830.80 to the applicant’s nominated superannuation fund;
(d)pursuant to clause 21 of the Award and s 45 of the FW Act, by underpaying the amount of $724.42 to the applicant in respect of his accrued annual leave and annual leave loading in respect thereof; and
(a)the second respondent was involved, within the meaning of s 550(2) of the FW Act, in the contraventions by the first respondent referred to in declarations (a) to (d) above (inclusive).
3.Pursuant to s 545(1) of the FW Act, the first respondent must pay:
(a)to the applicant the amount of $5,261.44 ‘less taxation deductions’ being compensation for unfair dismissal as ordered by the Fair Work Commission on 19 June 2024;
(b)to the applicant the amount of $3,619.46 in unpaid wages;
(c)to the Commonwealth Essential Super fund member number PC-150922-
150599993, the amount of $6,830.80; and
(d)to the applicant the amount of $724.42 in unpaid accrued annual leave and annual leave loading in respect thereof.
4.The payments ordered in order 3 above must be made within 28 days of these Orders.
5.The question of interest to be paid in respect of the amounts referred to in order 3 above, is reserved.
6.The proceedings are adjourned to 10.15am on 30 April 2025 before Judge Given for further hearing in respect of civil pecuniary penalties sought by the applicant in respect of the contraventions declared at order 2 above, and the question of interest pursuant to order 5 above.
7.The first respondent must appoint a legal representative and file a Notice of Address for Service in accordance with rr 6.01 and 9.04 of the Rules by 4:00pm on 27 March 2025.
8.The second respondent must file and serve Notices of Address for Service which comply with r 6.01 of the Rules by 4:00pm on 27 March 2025.
9.Until such time as orders 7 and 8 above are complied with, pursuant to r 6.04(a) of the Rules, service upon each of the first and second respondents may be effected by sending a copy of the document/s to the email address: [email protected].
10.The applicant must file and serve evidence and submissions on the issue of penalty and interest by no later than 21 days prior to the date of the penalty hearing referred to in order 6 above.
11.The respondents must file and serve evidence and submissions on the issue of penalty and interest by no later than 14 days prior to the date of the penalty hearing referred to in order 6 above.
12.The applicant must file and serve any reply evidence or submissions on the issue of penalty and interest by no later than 7 days prior to the date of the penalty hearing referred to in order 6 above.
13.The applicant is to serve a sealed copy of this order on the respondents by 5:00pm on 14 March 2025.
14.Costs are reserved.
15.The parties have liberty to apply on 3 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before the Court is an application in a proceeding which was filed by the applicants on 26 January 2025 (default judgment application). The proceedings were commenced by the applicant on 23 August 2024, on which date the applicant filed an application but also a Statement of Claim in this Court alleging various contraventions of the Fair Work Act 2009 (Cth) (Act), and various clauses of the Security Services Industry Award 2010 [MA000016], (Award). It is alleged by the applicant that the first respondent has contravened various sections of the Act.
The proceedings first came before me on 24 October 2024, on which occasion there was no appearance by, or for, the respondents. On that occasion, I made the following orders:
1.The applicant must serve a sealed copy of these orders on the respondents by ordinary post by 31 October 2024.
2.The first respondent must appoint a lawyer pursuant to r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and file a Notice of Address for Service by 4:00pm on 14 November 2024.
3.The second respondent must file a Notice of Address for Service pursuant to r 6.01 of the Rules by 4:00pm on 14 November 2024.
4.The respondents must file and serve a Response and Defence by 4:00pm on 28 November 2024.
5.The proceedings are listed for directions before Judge Given at 9:45am on 5 December 2024.
6.Liberty to apply on 2 days’ notice.
The proceedings were next listed for further directions before me on 5 December 2024, which date was later changed to 12 December 2024. On 12 December 2024 there was, again, no appearance by, or for, the respondents. On that occasion, I made the following orders:
1.The applicant must serve a copy of these orders on the respondents by email and ordinary Post by 5:00pm on 24 December 2024.
2.The applicant must file any Amended Application and Statement of Claim by 4:00pm on 30 January 2024.
3.The first respondent must appoint a lawyer pursuant to r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and file a Notice of Address for Service by 4:00pm on 3 February 2025.
4.The second respondent must file a Notice of Address for Service pursuant to r 6.01 of the Rules by 4:00pm on 3 February 2025.
5.The matter is listed for directions before Judge Given at 10:15am on 19 February 2025 at Court 13.1 level 13, 80 William Street, Woolloomooloo.
THE COURT NOTES THAT:
A. In the event there is no compliance by the respondents with orders 3 and 4, the directions hearing referred to in order 5 above will be utilised for the hearing of any Application in a Proceeding filed for the applicant in the interim.
Prior to the next directions hearing on 19 February 2025, the default judgment application was filed. There being no appearance again by or for the respondents at the directions hearing on 19 February 2025, I made orders listing the default judgment application for hearing before me at 10:15am this morning. The applicant was ordered to serve a sealed copy of those orders on the respondents by 4:00pm on 24 February 2025.
At the hearing at the default judgment application there was no appearance by or for the first or second respondents as at 10:17am when the matter was called outside the courtroom. Pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules):
If a party to a proceeding is absent from a hearing ... the Court ... may proceed with the hearing generally or in relation to any claim for relief in the proceeding.
In the absence of the respondents having attended today, I am satisfied that it is appropriate to proceed with the hearing of the default judgment application today. In support of the default judgment application, there are a number of Affidavits read for the applicant, being:
(a)Affidavit of Muhammad Mustafa affirmed on 26 January 2025 (Mustafa Affidavit);
(b)Affidavit of Paul Justin Noonan affirmed on 11 October 2024 (Noonan Affidavit);
(c)Affidavit of William Clarke sworn 27 November 2024 (First Clarke Affidavit);
(d)Affidavit of William Clarke sworn on 17 February 2025 (Second Clarke Affidavit);
(e)Affidavit of William Clarke sworn on 11 March 2025(Third Clarke Affidavit).
In terms of the relief sought, by reference to the Amended Statement of Claim the applicant alleges contraventions of the Act, which can be summarised as follows:
(a)the first is a contravention of s 405 of the Act, constituted by the first respondent failing to pay the applicant the amount of $5,261.44 (less taxation deductions), which represents an amount of compensation for unfair dismissal ordered by the Fair Work Commission in favour of the applicant on 19 June 2024;
(b)the second contravention is a failure on the part of the first respondent constituted by underpayment to the applicant of $3,619.46 in wages, being a contravention of clause 15 of the Award and also of s 323 of the Act. In addition, the applicant alleges that there was a failure pursuant to cl 20.2 of the Award and s 116B of the Act to pay $6,830.80 to his nominated superannuation fund; and
(c)the third contravention in respect of the first respondent is an alleged failure to comply with cl 21 of the Award and a contravention of s 45 of the Act by underpaying the applicant the amount of $724.42, which represented part of his accrued annual leave and the annual leave loading in respect thereof.
The applicant alleges that the second respondent was involved, within the meaning of s 550 of the Act, in the contraventions by the first respondent, set out at [7(a)] to [7(c)] above. The applicant seeks orders for default judgment based on various defaults under the Rules, together with declarations of the contraventions and consequential orders on default pursuant to r 13.05(2)(c) of the Rules.
Principles
The relevant principles in relation to default judgment are conveniently summarised in a decision of this Court in Fair Work Ombudsman v Mobile Food Vand & Trucks Pty Ltd [2021] FCCA 882 per Judge O'Sullivan, in which his Honour considered the principles which arise from an array of decisions of the Federal Court of Australia in relation to the entry of default judgment, and I have had regard to those principles.
In considering whether or not to make an order on default, the Court will usually have regard to matters which include:
(a)the Court's power which is discretionary and is to be exercised generally with caution; and
(b)that the discretionary power is enlivened by the applicant making an application to the Court for an appropriate order, and noting that in the absence of such an application the power cannot be invoked.
I am satisfied that the default judgment application which was made on 26 January 2025 is such an application.
Rule 13.04(2) of the Rules is as follows:
13.04 When a party is in default
…
(2) For the purposes of rule 13.05, 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
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
Rule 13.05(2)(c) of the Rules is as follows:
13.05 Orders on default
…
(2) If a respondent is in default, the Court may:
(c) if the proceeding was started 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; …
Orders for default judgment can be made pursuant to r 13.05(2)(c) if the Court is satisfied that there is a sufficient basis for the relief sought by an applicant on the face of their statement of claim. The Court is not required to be satisfied by way of evidence to prove the matters that are set out in the statement of claim: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J.
In this matter, in support of the default judgment application, an additional affidavit has been filed, deposed by the applicant, which sets out the matters upon which, at least in a broad sense underpin the relief sought by the Statement of Claim.
In terms of the defaults of the respondents, at no time in these proceedings have either of the respondents filed a Notice of Address for Service. The first respondent, being a corporation, was also required, pursuant to r 9.04, to be represented by a lawyer in these proceedings. No Notice of Address for Service has been filed (much less by a lawyer). Not only is there an obligation under the Rules to file such documents, but the Court expressly made orders in respect of the first respondent that a lawyer be appointed pursuant to r 9.04, and that the first respondent must file a Notice of Address for Service by a certain date. The second respondent was required to file a Notice of Address for Service too, and those orders were also not complied with.
The respondents were also ordered to file and serve a response to the application, and a defence by 28 November 2024. In addition to the Court having specifically ordered that to occur - that pursuant to r 4.03 of the Court Rules there is an obligation on a respondent, in any event, to file and serve a response within 28 days after service of the application to which it relates. That also did not take place. The proceedings were next listed for directions before me, implicit within which is that the parties are ordered to come before the Court. The respondents failed to do so on 12 December 2024, by which date they had failed to comply with any of the orders that I have just set out. Again, the first respondent was ordered to appoint a lawyer pursuant to r 9.04 and file a Notice of Address for Service. Again, that did not occur. The second respondent also failed to file a Notice Address for Service in accordance with orders that I made on that date. On 19 February 2025, the respondents were also in default by not having appeared before the Court, and not having complied with those orders.
From the Affidavits of Service read today, I am satisfied that the applicant has initially served the originating documents in accordance with the Court's Rules and that, subsequent to that, the applicant has complied with the Court's orders in respect of service of additional documents throughout the proceedings. I am satisfied, in accordance with those orders and the Affidavit evidence before me, that the respondents can be taken to be on notice of today's default judgment hearing and have, for whatever reason, elected not to attend.
Turning to the entitlement to relief, on the face of the matters which are outlined in the applicant's Statement of Claim, the applicant says he has such an entitlement. Having regard to those matters and to the Mustafa Affidavit evidence, I agree. In respect of the s 405 contravention, this has been detailed in the Mustafa Affidavit at [2] to [6] and annexures “A” to “E” thereto. Those paragraphs are as follows (errors in original):
2. I was employed as a security officer by the First Respondent between January 2022 and 16 January 2024, when I was dismissed. I commenced proceedings for unfair dismissal under s 394 of the Fair Work Act (‘Act’) against the First Respondent in the Fair Work Commission, file number U2024/1134
3. In the course of the proceedings the First Respondent filed a Reply a copy of which is annexed hereto and marked “A”. At paragraph 3.1 the Form 3 confirms that I mainly worked between 1800 and 0600 hours driving between sites for inspections, responding to alarms and locking up at some sites After this, a fair Work Conciliator communicated with myself and the Second Respondent about settling my claim. Annexed hereto and marked “B” are copies of emails and text messages between myself and the Second Respondent date March 2024
4. During my employment the business was called Core Facilities. Annexed hereto and marked “C” are copies of documents provided to me by my employer under that name. Annexed hereto and marked “D” is a copy of the ASIC records for the business name Core Facilities recording the First Respondent as carrying on business under various names, as well as the ASIC records for the First Respondent showing the Second Respondent’s positions as Director, Secretary and sole shareholder
5. On 4 June 2024 I appeared in the Fair Work Commission before Deputy President Dean at the hearing of my claim. The First Respondent had a lawyer at the hearing when I gave evidence, and he asked me some questions about my employment.
6. On 19 June 2024 Deputy President Dean awarded me $5,261.44 less applicable taxation as compensation for being unfairly dismissed. Annexed hereto and marked “E” is a copy of the Order made by Deputy President Dean. The First Respondent has not paid any money to me since 19 June 2024.
By reference to those matters, I am satisfied that the Fair Work Commission made an order on 19 June 2024, and that there was a period of time provided for payment of the compensation amount ordered by the Fair Work Commission. I am satisfied that the respondents failed to comply with that order and have not made the payment required. I am also satisfied, on the basis of the matters that are set out in the Mustafa Affidavit, that the applicant has not been contacted by the first or second respondents in any way, including by legal representatives. I note, significantly, that no appeal was made from orders of the Fair Work Commission.
It seems, at least on the face of the Statement of Claim and the evidence before the Court at this stage, that the applicant is entitled to the relief he seeks in respect of the s 405 contravention.
In respect of the s 116 contravention, the solicitor for the applicant appearing this morning did properly bring to the Court's attention that the obligation in respect of this contravention only came into effect during the applicant's employment, but there were statutory requirements prior to that time. There have been some payments made, it is conceded by the applicant, in respect of superannuation. However, some of those payments were late and the payments were not fully made. I am satisfied that the contravention in respect of s 116 of the Act is therefore made out on the basis of the face of the Statement of Claim.
In respect of the s 323 contravention, this is detailed by the applicant in paragraphs [12] to [13] of the Mustafa Affidavit and also Annexure “L” thereto. That annexure is a Statutory Declaration given by the applicant's previous supervisor stating that he did in fact undertake the role that is alleged and that the level of pay in respect of that role ought to have continued after June of 2023, and did not. I am satisfied, on the face of the Statement of Claim, that the s 323 contravention is made out.
Lastly, in respect of the applicant's annual leave payment plus the annual leave loading that applied thereto, I am satisfied that the s 45 contravention is made out on the basis of the face of the Statement of Claim and [13] of the applicant's affidavit together with Annexure “J” thereto.
I am also satisfied that the other matters raised in the pleading in relation to the nature and conditions of the applicant's employment, are established.
By reference to the failures that have been referred to above in respect of the Fair Work Act, I am satisfied that each of those gives rise to contravention of the Act, together with the various clauses of the Award as pleaded by the applicant. I am also satisfied that the second respondent, as the sole director of the first respondent (and to all intents and purposes, its controlling mind) has been involved in the first respondent's contraventions within the meaning of s 550(2) of the Act.
The Court has power in those circumstances to make the orders it considers appropriate if satisfied of a contravention. Those include:
(a)declarations under s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth);
(b)remedial and compensatory orders under s 545 of the Act, and pecuniary penalties pursuant to s 546 of the Act.
The Court's power to make declarations involves a wide discretion, and I am empowered to make declarations based on admissions which are taken to be consequent upon the respondents' default: see Australian Competition and Consumer Commission (ACCC) v Dateline Imports Pty Ltd (2014) 143 ALD 136 and Australian Competition and Consumer Commission (ACCC) v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 at [66] to [69] per Gordon J.
I am satisfied overall that the applicant had standing to bring these proceedings, and that, on the basis of the matters which are detailed in the Amended Statement of Claim, the applicant has the entitlement to the relief he seeks. I am satisfied that there is utility in making the orders which are sought, and declarations in respect of the contravention.
The respondents have failed entirely to participate in the proceedings to date (which constitutes a separate failure for the purposes of r 13.04(2)(b)(vii) to defend these proceedings with due diligence). I am satisfied this is a separate default.
The respondents may wish to be heard on the question of penalty, together with any consequential orders which should be made on that occasion. Accordingly, while I will not deal with the question of penalty today, and I will accede to the request of the applicant that the matter be listed on another occasion for the purpose of a hearing in respect of the determination of penalties for the contraventions of ss 45, 116B, 323 and 405 of the Fair Work Act.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2025
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