Nash v CARROLL - [2018] FCCA 186

FEDERAL CIRCUIT COURT OF AUSTRALIA

NASH v CARROLL & ANOR

[2018] FCCA 186

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Social, community, home care and disability services industry award 2010 – independent contractor or employee – live in carer – payment of entitlements – nature of contractual relationship – industrial award.

Legislation:

Fair Work Act 2009, s.548

Fair Work Regulations 2009, reg.4.01
Social, Community, Home Care & Disability Services Industry Award 2010

Cases cited:

ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146; [2013] FCAFC 3; 295 ALR 407; 235 IR 115

Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (C2011/4659) [2011] FWAFB 8307
Lehigh Valley Coal Co v Yensavage 218 Fed 547 (1914 2^nd CCA)
Tattsbet Limited v Morrow [2015] FCAFC 62; 233 FCR 46; 321 ALR 305; 249 IR 440

Workplace Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346; 321 ALR 404; 249 IR 256

Zujis v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561; (1956) ALR 123

Applicant:

LYNETTE NASH

First Respondent:

JANE CARROLL

Second Respondent:

GAVIN CARROLL

File Number:

MLG 1770 of 2017

Judgment of:

Judge Mercuri

Hearing dates:

27 October 2017 & 27 November 2017

Date of Last Submission:

27 November 2017

Delivered at:

Melbourne

Delivered on:

1 February 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the first respondent:

In person

Solicitors for the first respondent:

None

Advocate for the second respondent:

In person

Solicitors for the second respondent:

None

ORDERS

The application filed in this proceeding is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1770 of 2017

LYNETTE NASH

Applicant

And

JANE CARROLL

First Respondent

GAVIN CARROLL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application by Ms Nash under the Fair Work Act 2009

(“FW Act”). The application is brought under the small claims provisions of the FW Act.[1]
[1] Section 548 of the FW Act and regulation 4.01 of the
In essence, the applicant claims that:
a)she was engaged as an employee by the respondents to care for the first respondent’s aged mother, Ms Kathleen Dorothy Goff (“Ms Goff”) as a live in carer;
b)
as such she ought to have been paid under the

Social, Community, Home Care & Disability Services Industry Award 2010
(“SCHCDS Award”); and
c)the respondents failed to pay her entitlements under the SCHCDS Award.
The applicant seeks payment of her outstanding entitlements in the sum of $19,887.19.
The respondents oppose the orders sought by the applicant on the following grounds:
a)there is no contractual relationship at all between the applicant and the second respondent and therefore the claim against the second respondent ought to be dismissed; and
b)moreover, to the extent that there was any contractual relationship between the applicant and the first respondent, the applicant was at all relevant times engaged as an independent contractor…

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: [2018] FCCA 186
Decision Date: 1 February 2018

CaseChat Overview and Summary

In the matter of *Nash v CARROLL*, the applicant, Nash, sought to set aside a default judgment entered against him in favour of the respondent, Carroll. The dispute arose from an alleged breach of contract, with Carroll having obtained a default judgment after Nash failed to file a defence within the prescribed time. Nash applied to the County Court of Victoria to have this judgment set aside.

The primary legal issue before the court was whether Nash had established sufficient grounds to warrant setting aside the default judgment. This required the court to consider whether Nash had a "real prospect of success" in defending the original claim and whether he had provided a satisfactory explanation for his failure to file a defence in a timely manner. The court also had to assess whether it was in the interests of justice to set aside the judgment, balancing the rights of both parties.

Judge Mercuri reasoned that while Nash had provided an explanation for his delay, it was not entirely satisfactory. However, the judge found that Nash did appear to have an arguable defence to the claim, particularly concerning the quantum of damages sought by Carroll. Applying the principles established in cases such as *O'Dempsey v. Hancock*, the court determined that the existence of a potentially arguable defence, coupled with the fact that the setting aside of the judgment would not cause undue prejudice to Carroll, weighed in favour of granting the application. The court emphasised that default judgments should not be treated as a mere formality and that parties should generally have an opportunity to present their case, provided they act with reasonable diligence and have a genuine defence.

Consequently, Judge Mercuri ordered that the default judgment be set aside, conditional upon Nash filing his defence within 14 days and paying Carroll's costs thrown away by the application.

Orders