Newman v Soldier.Ly Pty Ltd

[2020] FCCA 706

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWMAN v SOLDIER.LY PTY LTD [2020] FCCA 706

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application for default judgment against the respondent – whether because the respondent did not comply with orders that it file and serve a defence and evidence the respondent is a party in default – orders made.

Legislation:

Corporations Act 2001 (Cth), s.440D

Federal Circuit Court Rules 2001 (Cth), rr.13.03A(2), 13.03B(2)

Applicant: MICHAEL CHARLES NEWMAN

Respondent: SOLDIER.LY PTY LTD

File Number: SYG 1584 of 2019

Judgment of: Judge Manousaridis

Hearing date: 23 March 2020

Date of Last Submission: 23 March 2020

Delivered at: Sydney

Delivered on: 23 March 2020

REPRESENTATION

Applicant in person, by telephone

No appearance by, or on behalf of, the respondent

ORDERS

1. Pursuant to r.13.03B(2)(d) of the Federal Circuit Court Rules 2001 (Cth) the respondent pay to the applicant $44,632.87.

2. The respondent pay to the applicant such costs as the applicant may be entitled to as an unrepresented litigant. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1584 of 2019

MICHAEL CHARLES NEWMAN

Applicant

And

SOLDIER.LY PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. There is before me today an application by the applicant, Mr Newman, for an order on default under r.13.03B(2) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). That order is sought against the respondent on the ground that the respondent is a “respondent in default” as that expression is defined in r.13.03A(2).

2. For a respondent under that rule to be in default, it must be shown, first, that the respondent has not satisfied the applicant’s claim, in this case Mr Newman’s claim, and, second, one or more of the matters referred to in r.13.03A(2)(b). Before I consider whether the respondent is in default, it would be convenient to set out some of the history of this proceeding.

3. The proceeding was commenced by Mr Newman on 27 June 2019.  Essentially, in that claim, Mr Newman alleges that he was employed by the respondent, but has not been paid his contractual and other entitlements. Before that application was served on the respondent I granted Mr Newman leave to file an amended application.  That, in due course was done, filed and served.  The respondent did appear at some stage through a lawyer. 

4. After a number of directions hearings, the matter came before me on 18 September 2019 for directions. At that time, the respondent was represented by counsel.  At the end of that hearing I made a number of directions, one of which was that the respondent file and serve a defence by 2 October 2019 and evidence by 23 October 2019. 

5. The matter came back before me on 30 October 2019.  By that stage the lawyer or lawyers who acted on behalf of the respondent had withdrawn.  On 30 October 2019 there was no appearance on behalf of the respondent, although Mr Newman appeared by his solicitor, Mr Callanan. On that day I noted that the respondents had failed to file a defence contrary to the orders I made on 18 September 2019.  I also noted that the applicant, Mr Newman, proposed to apply for default judgment. I listed the matter for that purpose on 7 November 2019 and I made directions for the orders I made on that day to be served on the respondent. 

6. The matter did come back before me on 7 November 2019. On that day, I was informed – as I will shortly state, incorrectly informed – that the respondent had been placed into voluntary administration, with the consequence that, if true, the proceedings before me were automatically stayed against the respondent by reason of s.440D of the Corporations Act 2001 (Cth). In those circumstances, I ordered that the matter be listed for directions before me on 6 March 2020 and I reserved to the parties liberty to apply.

7. The matter came back before me on 6 March 2020. There was no appearance by or on behalf of the respondent, although Mr Newman did appear. I ordered that the matter be listed before me at 2.15 pm on 23 March 2020 for the purpose of Mr Newman applying for default judgment.  I also ordered that by 13 March 2020 Mr Newman serve on the respondent a copy of the orders I made on that day.[1]

   [1] I failed to add when delivering judgment that on 6 March 2020 I was informed that the respondent had not been placed into administration but that a receiver and manager had been appointed.

8. So that is the background to today’s hearing.  The matter has been listed, pursuant to the orders I made on 6 March 2020, for the purpose of Mr Newman applying for default judgment. 

9. In support of his application Mr Newman relies on an affidavit he made on 10 March 2020.  In that affidavit Mr Newman deposes that he is owed by the respondent the sum of $44,632,87. That is a liquidated amount that has accrued to Mr Newman by reason of the claimed employment contract and performance of services under that employment contract, as well as other entitlements, such as superannuation, to which Mr Newman became entitled pursuant to his performance of his employment contract, as he alleges. Mr Newman has also relied on an affidavit of service of that affidavit on the registered office of the respondent. He has also tendered in evidence an email, which I have marked “exhibit A”, that he sent to the director of the respondent on 6 March 2020 attaching a sealed copy of the orders I made on 6 March 2020.

10. There is no doubt that the respondent is in default within the meaning of r.13.03A(2) of the FCC Rules. The respondent has not satisfied Mr Newman’s claim; and the respondent, contrary to the orders I made on 18 September 2019, has not complied with the orders I made on 18 September 2019. I am also satisfied the respondent has not defended the proceeding with due diligence; in fact, the respondent has not really sought to defend the proceeding at all.

11. The respondent’s being in default means I have the power to make one or more of the orders specified in r.13.03B(2) of the FCC Rules. The broadest power, provided for by paragraph (d), is that the Court can give judgment or make any other order against the respondent. I am satisfied that the appropriate order that I should make is to give judgment against the respondent in the amount of $44,632.87, being the sum of the amounts to which, on Mr Newman’s claim, he became entitled by reason of his performance of his employment contract with the respondent. I will make an order in a moment.

12. Mr Newman is not legally represented, which means he is not entitled to legal costs as such.  However, he is entitled to an order that any money he has expended by way of filing fees or fees for process services be recoverable.  I also propose to make an order entitling Mr Newman to recover those out of pocket expenses which he has incurred. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 23 March 2020