Payne v Secure Melbourne Protective Services Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311   

File number: VID 746 of 2020
Judgment of: SNADEN J
Date of judgment: 1 November 2023
Catchwords: INDUSTRIAL LAW – breach of award and statutory obligation – failure to pay superannuation – injury suffered at work – compensation for lost opportunity to make insurance claim – default judgment – assessment of loss – value of lost opportunity – compensation and interest awarded  
Legislation:

Federal Court of Australia Act 1976 (Cth), s 51A

Fair Work Act 2009 (Cth), ss 45, 539, 545, 547, 570

Superannuation Guarantee (Administration) Act 1992 (Cth), ss 16, 17, 19 and 23

Superannuation Guarantee Charge Act 1992 (Cth), ss 3, 5 and 6

Federal Court Rules 2011 (Cth), r 5.23

Security Services Industry Award 2010  
Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Corum Systems Pty Ltd v Fred It Group Pty Ltd [2023] VSC 208

Ibeneweka v Egbuna [1964] 1 WLR 219

La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299

Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 67
Date of last submission: 26 June 2023
Date of hearing: 19 June 2023
Counsel for the Applicant: Mr D Kelsey-Sugg
Solicitor for the Applicant: Ellis Palmos & Co Lawyers
Counsel for the Respondent: The respondent did not appear

ORDERS

VID 746 of 2020
BETWEEN:

TERRENCE ANDREW PAYNE

Applicant
AND:

SECURE MELBOURNE PROTECTIVE SERVICES PTY LTD

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

1 NOVEMBER 2023

THE COURT ORDERS THAT:

1.There be judgment for the applicant in the amount of $80,000.00, together with interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) and/or s 547(2) of the Fair Work Act 2009 (Cth), such interest to be calculated from 12 February 2019 at the rates referred to at paragraph 2.2 of the court’s Interest on judgments practice note (gpn-int).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. Between January and October 2014, the respondent employed the applicant, Mr Payne, as a crowd controller.  Mr Payne’s employment was subject to the Security Services Industry Award 2010 (the “Award”), which was a “modern award” made pursuant to pt 2‑2 of the Fair Work Act 2009 (Cth) (the “FW Act”).

  2. On 12 May 2014, Mr Payne worked at a venue in Caulfield, Victoria.  In ways that needn’t be particularised, he that night found himself on the receiving end of a violent attack perpetrated by some of the venue’s patrons.  Following (and apparently as a result of) that attack—and perhaps a second attack that he witnessed on 30 August 2014—Mr…

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Details
Case
[2023] FCA 1311
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a case between Mr Payne and Secure Melbourne Protective Services Pty Ltd regarding a failure to pay superannuation contributions. Mr Payne alleged that the company had contravened award and statutory obligations by not making superannuation contributions for him prior to a specific date, resulting in financial loss and the lost opportunity to make an insurance claim. The court granted Mr Payne's application to amend his originating application and amended statement of claim, replacing references to clause 18 of the Award with references to clause 20, due to the typographical errors having no material bearing on the determination of Mr Payne's claims.

The court was required to decide on the legal and factual propositions set out in Mr Payne's amended statement of claim and whether the respondent breached clause 20 of the Award and contravened section 45 of the Fair Work Act 2009. The court found that the respondent breached clause 20 of the Award by not making superannuation contributions on Mr Payne's behalf prior to 12 May 2014 and that this constituted a contravention of section 45 of the Fair Work Act. The court also accepted that Mr Payne had suffered loss due to the respondent's contravention of section 45 of the Fair Work Act.

The court assessed the loss suffered by Mr Payne and determined the amount of compensation to be awarded, considering the lost opportunity to make an insurance claim. In the end, the court awarded Mr Payne $80,000.00 in compensation, together with interest pursuant to section 51A of the Federal Court of Australia Act 1976 and/or section 547(2) of the Fair Work Act 2009. The interest was to be calculated from 12 February 2019 at the rates referred to in the court's Interest on judgments practice note.

Orders

Orders of the court

1. There be judgment for the applicant in the amount of $80,000.00, together with interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) and/or s 547(2) of the Fair Work Act 2009 (Cth), such interest to be calculated from 12 February 2019 at the rates referred to at paragraph 2.2 of the court’s Interest on judgments practice note (gpn-int).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of that infelicity, Mr Payne sought leave to amend his originating application and amended statement of claim so as to replace the references to cl 18 of the Award with references to cl 20. That application was made by means of a written submission filed with leave after the hearing of 19 June 2023, a copy of which was served upon the respondent. The court subsequently confirmed to the parties in writing that, in the event that the respondent failed to indicate any opposition to the applicant’s request for leave to amend, it would proceed to determine both that request and the substantive application.JUDGMENT I shall deal first with Mr Payne’s request for leave to amend his originating application and amended statement of claim. In the absence of any opposition, that request should be granted. Indeed, it should quite obviously be granted regardless. The errors that have been identified (and that are sought to be corrected) are typographical and have no material bearing on the determination of Mr Payne’s claims. I do not consider it necessary that Mr Payne should file amended (or further amended) versions of his originating application and pleading. Instead, I shall proceed on the basis that the references therein to cl 18 of the Award are to be read, instead, as references to cl 20. The respondent has long been on notice of that reality and there is no prejudice to it in proceeding as outlined. In light of the respondent’s non‑attendance at the hearing, it is appropriate that judgment should be entered in favour of Mr Payne and that the court should proceed to assess the compensation that ought to be paid to him in consequence of his success. That is the course contemplated by r 5.23(2)(d) of the FC Rules. Inherent in that, of course, is an acceptance of the legal and factual propositions that are set out in Mr Payne’s amended statement of claim. I am satisfied that, by omitting to make a superannuation contribution on Mr Payne’s behalf prior to 12 May 2014 (indeed, prior to 29 April 2014), the respondent breached cl 20 of the Award. In so doing, it contravened s 45 of the FW Act, which provides, very simply:45 Contravening a modern award A person must not contravene a term of a modern award.… This court has jurisdiction to make an order requiring that a person who has contravened s 45 of the FW Act pay compensation to a person who has suffered loss because of it: FW Act, ss 539(1), 545(1) and 545(2). Although his originating application seeks relief in the form of both compensation and the imposition of a pecuniary penalty, the latter was abandoned at the hearing. The only issues of substance that remain for the court to determine are whether to make an order for compensation and, if so, in what amount. The first of those two questions should be answered in the affirmative. Mr Payne’s pleading alleges that he has suffered loss in consequence of the respondent’s contravention of s 45 of the FW Act; and, upon giving judgment in default, that must be accepted. All that remains, then, is the assessment contemplated by r 5.23(2)(d) of the FC Rules: what has Mr Payne lost as a result of the respondent’s contravention of s 45 of the FW Act and what should the court proceed to award to compensate him for that loss?ASSESSMENT OF LOSS

Ratio Decidendi

Legal Principle Established

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