Shafaq v Milez Trading Group Pty Limited
[2016] FCCA 2135
•18 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAFAQ v MILEZ TRADING GROUP PTY LIMITED & ANOR | [2016] FCCA 2135 |
| Catchwords: INDUSTRIAL LAW – Application in a Case for default judgment – alleged contraventions of Fair Work Act 2009 (Cth) – default judgment made. |
| Legislation: Fair Work Act 2009, ss.44, 62, 90, 117, 323, 545, 546, 547, 550, 570 Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B, 13.03C |
| Cases cited: Fair Work Ombudsman v Tsurc Pty Ltd (ACN 130 749 969) & Anor [2014] FCCA 2472 Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 Luna Park Sydney Pty Limited (ACN 102 907 184) v Bose [2006] FCA 94 Tyco (Australia) Pty Ltd t/as ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352 Transport Workers’ Union of Australia v Atkins [2014] FCCA 1553 |
| Applicant: | NASEER AHMAD SHAFAQ |
| First Respondent: | MILEZ TRADING GROUP PTY LIMITED ABN 86 151 371 (DISCONTINUED) |
| Second Respondent: | MANNAN ASIF KHAN |
| File Number: | SYG 353 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 20 April 2016 |
| Date of Last Submission: | 4 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Fogarty |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| First Respondent: | Discontinued |
| Second Respondent: | No Appearance |
DECLARATION
The second respondent is in default of the Orders of 24 June 2015 and 4 November 2015.
ORDERS
Default judgment be entered for the applicant against the second respondent pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
The second respondent pay the applicant an amount of $14,841.73 pursuant s.545(2)(b) of the Fair Work Act 2009 (Cth).
The second respondent pay interest on the judgment.
The second respondent pay the applicant an amount of $1240.25 for costs thrown away in relation to the mediation.
CERTIFICATION
Pursuant to r. 21.15 of the Federal Circuit Court Rules 2001 (Cth), the proceedings reasonably required the employment of an advocate by the applicant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 353 of 2015
| NASEER AHMAD SHAFAQ |
Applicant
And
| MILEZ TRADING GROUP PTY LIMITED ABN 86 151 371 (DISCONTINUED) |
First Respondent
| MANNAN ASIF KHAN |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made by Naseer Ahmad Shafaq (“the applicant”) on 17 February 2016 seeking default judgment against Mr Mannan Asif Khan (“the second respondent”) in relation to the relevant substantive application made under the Fair Work Act 2009 (Cth) (“the FWA”) on 13 February 2015 by the applicant against Milez Trading Group Pty Limited ABN 86 151 371 (“the first respondent”, discontinued on 1 December 2015 ‑ see further below) and the second respondent.
Evidence Before the Court
The following affidavits were filed by the applicant and read into evidence before the Court:
1)The affidavit of Naseer Ahmad Shafaq made on 4 February 2015.
2)The affidavit of Naseer Ahmad Shafaq made on 19 November 2015.
3)The affidavit of Rachel Bickovsky, solicitor, made on 17 February 2016.
4)The affidavit of Rachel Bickovsky, solicitor, made on 4 March 2016.
No evidence has been filed by the respondents. The applicant has filed written submissions in support of his AIC.
Relevant History Before the Court
On 13 February 2015, the applicant made an application under the FWA alleging various contraventions of the FWA by the first respondent pursuant to ss.62(1), 90(2), 117(2), 44(1) and 323 of the FWA.
The applicant also alleged that the second respondent, who was the sole director, company secretary and sole shareholder of the first respondent, and who was also the supervisor of the applicant at the first respondent’s workplace, had knowledge of, carried out, and was involved in, the contraventions and therefore liable for them pursuant to s.550(1) of the FWA.
The substantive application first came before the Court on 25 March 2015. The applicant mentioned the matter by consent of the respondents. On this occasion, the Court made a number of orders by consent for the progress of the case, including that the proceedings continue by way of pleadings. All parties were legally represented at that time.
The applicant filed a “Statement of Claim” on 10 April 2015 in line with the orders made on 25 March 2015. The respondents, then represented by a firm of solicitors, filed a “Defence and Cross-Claim” and a “Genuine Steps Statement” on 13 May 2015.
The orders of 25 March 2015 also contained, at Orders 7 and 9, provision for mediation to occur by a Registrar of this Court pursuant to Part 27 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Those orders were amended by consent on 24 June 2015, extending the time within which mediation was to take place.
On the evidence before the Court, on 2 June 2015 the Court’s Registry confirmed with the parties that the mediation was listed on 11 September 2015 before a Registrar of the Court, a date which the parties indicated was one they were available to attend for mediation.
On 28 July 2015 the solicitor for the respondents wrote to the applicant’s solicitor and advised her that the respondents no longer pressed the Cross-Claim. The applicant filed a Reply to the Respondents’ Defence and Cross-Claim on 3 August 2015.
On 18 September 2015, the solicitor for the respondents filed a Notice of Withdrawal as Lawyer for the first and second respondents. Pursuant to the FCC Rules, and attached to that Notice was a “Notice of Intention to Withdraw as Lawyer” made by the solicitor for the respondents on 9 September 2015, and, on the evidence before the Court, served on the applicant on 9 September 2015.
The mediation scheduled to commence on 11 September 2015 was vacated as, on the evidence before the Court (see affidavit of Ms Bickovsky of 17 February 2016 at [18]), it appeared that the second respondent was overseas and not able to attend.
On 4 November 2015 there was an appearance for the applicant at the directions hearing at which the Court made further orders for the progress and conduct of the matter, but there was no appearance for, or by, the respondents.
On 1 December 2015 the applicant discontinued the proceedings against the first respondent as an Official Liquidator, HoskingHurst, had been appointed on 16 September 2015.
On 10 February 2016 the Court made further orders for the conduct of the proceedings. There was an appearance for the applicant at the directions hearing at which these orders were made, but no appearance by, or for, the second respondent.
Relevant Legislation
Rule 13.03A of the FCC Rules is in the following terms:
“13.03A When a party is in default
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2) For rule 13.03B, 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 13.03B of the FCC Rules is in the following terms:
“13.03B Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate—costs; or
(c) if the proceeding was commenced 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; or
(d) give judgment or make any other order against the respondent; or
(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
(3) The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i) service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b) an affidavit for the debt or liquidated damages in accordance with the approved form.
(4) Unless the Court otherwise orders, if a respondent to a cross‑claim is in default:
(a) a judgment or decision on any claim, question or issue in the proceeding on the originating process; or
(b) any other cross-claim in the proceeding;
is binding as between the cross‑claimant and the respondent to the cross‑claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross‑claim.
(5) In subrule (4):
decision includes a decision by consent.
judgment includes a judgment by default or by consent.
(6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.”
The hearing of the applicant’s AIC was set down on 20 April 2016 by order made on 10 February 2016 (see Order 5). There was no appearance by, or on behalf of, the second respondent on that day. That is, the order was made in his absence.
Nonetheless, I was satisfied on the evidence before me, in particular the affidavit of Ms Bickovsky of 4 March 2016, that a number of reasonable steps had been taken to notify the second respondent of the orders made on 10 February 2016, and in particular Order 5. No request for an adjournment or explanation for his inability to attend has been received from the second respondent. In these circumstances I found it was appropriate to proceed pursuant to r.13.03C(1)(e) and r.13.03C(2) of the FCC Rules to hear the AIC.
Principles of Default Judgment
As I have previously stated in similar cases, the Court’s ability to give judgment pursuant to r.13.03B(2)(c) of the Rules against the second respondent in these proceedings without his attendance is pursuant to r.13.03C(2) of the Rules. For a default judgment to be made, two elements must be met:
1)The applicant appears entitled to the claim for relief sought on the statement of claim; and
2)The Court is satisfied that on what is before it, it is within its powers to grant the relief sought.
Further, there is no requirement of proof by way of evidence for item 1 above (see Fair Work Ombudsman v Tsurc Pty Ltd (ACN 130 749 969) & Anor [2014] FCCA 2472 at [11] and references there to Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3], Luna Park Sydney Pty Limited (ACN 102 907 184) v Bose [2006] FCA 94 at [20], Tyco (Australia) Pty Ltd t/as ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615 at [5] and Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352).
The applicant submitted that the second respondent is in default as he has not satisfied the applicant’s claim, has failed to comply with orders of the Court made on 24 June 2015, 4 November 2015 and 10 February 2016 and has failed to “prosecute these proceedings with due diligence”.
Substantive Application
The originating, substantive, application to the Court was one supported by a statement of claim, filed on 16 April 2015, as required by r.13.03B(2)(c) of the FCC Rules. As set out above, the applicant claims that the second respondent, being the sole director, company secretary and sole shareholder of the first respondent at the relevant times, and the direct supervisor of the applicant at the workplace of the first respondent at the relevant times, had knowledge of and carried out the contraventions alleged against the first respondent. These alleged contraventions were of the FWA and the Fair Work Regulations 2009 (Cth).
The applicant has summarised them helpfully as follows (see [7]a. ‑ f. of the applicant’s written submissions):
“a. the First Respondent was bound by the National Employment Standards (NES) under Part 2-2 of the FW Act in respect of the terms and conditions of employment of the Applicant and the NES applied to the Applicant's employment with the First Respondent;
b. the First Respondent did not keep employee records in relation to the Applicant, its employee, either at all or, in the alternative, with the information required and prescribed by the Regulations, in contravention of Regulations 3.31 to 3.37 and 3.44, and subsection 535(2) of the FW Act (section 535 of the FW Act being a civil remedy provision);
c. the First Respondent did not issue payslips to the Applicant, in contravention of Regulations 3.45 and 3.46, and subsection 536(1) of the FW Act (section 536 of the FW Act being a civil remedy provision);
d. in the alternative to the preceding paragraph, the First Respondent issued payslips which contained false, misleading and/or deficient information, in contravention of subsection 536(2) of the FW Act (section 536 of the FW Act being a civil remedy provision);
e. the First Respondent contravened the NES in respect of the Applicant as follows:
i. the First Respondent required the Applicant to work more than 38 hours per week and that work was not reasonable, thereby contravening subsection 62( 1) of the FW Act;
ii. the Applicant did not take any annual leave when employed with the First Respondent and, when the Applicant's employment ended, the First Respondent did not pay the Applicant the amount that was payable to him had he taken annual leave, thereby contravening subsection 90(2) of the FW Act; and
iii. the First Respondent terminated the Applicant's employment without:
1. providing the minimum period of notice; or
2. paying the Applicant in lieu of notice the amount the First Respondent was liable to pay to the Applicant at the full rate of pay for the hours the Applicant would have worked had his employment continued until the end of the minimum period of notice,
thereby contravening subsection 117(2) of the FW Act, each of the contraventions set out in this subparagraph 7.e. being a contravention of subsection 44(1) of the FW Act (and subsection 44(1) of the FW Act being a civil remedy provision);
f. the First Respondent:
i. did not pay the Applicant a shift allowance;
ii.· did not pay the Applicant superannuation;
iii. did not pay the Applicant overtime or penalty rates;
iv. did not pay the Applicant annual leave or leave loading; and
v. did not allow the Applicant to take time in lieu owed at the end of his employment,
thereby contravening section 323 of the FW Act (section 323 of the FW Act being a civil remedy provision);…”
In the substantive application, the applicant sought the orders and relief summarised at [8] of his written submissions:
“In the Originating Application the Applicant sought the following orders and relief of the Court:
a. an order that the Respondents pay the Applicant damages by way of compensation, pursuant to subsection 545(2)(b) of the FW Act, for loss and damage suffered by the Applicant comprising of:
i. $12,206.40, for 240 hours of unpaid overtime;
ii. $1191.83, for unpaid superannuation entitlements;
iii. $993.50, for unpaid annual leave entitlements;
iv. $450, for a $45 per week 'employee deduction' deducted from the Applicant's wages over 10 weeks without his authorisation;
v. $25,000, for an amount demanded of the Applicant by the Respondents and paid by the Applicant to the Respondents for sponsorship by the Respondents for the Applicant's Temporary Work (Skilled) (subclass 457) Visa (Visa Grant Number: 8099574184411); and
vi. distress, hurt and humiliation;
b. an order that the Respondents pay the Applicant pecuniary penalties in accordance with section 546 of the FW Act in respect of the Respondents' contraventions and/or involvement in contraventions of subsections 44(1), 535, 536(1) and/or 536(2) of the FW Act, being civil remedy provisions;
c. an order that the Respondents pay the Applicant's costs of the proceedings;
d. interest on judgment in accordance with section 547 of the FW Act;
e. certification that it was reasonable to engage counsel to appear for the Applicant in the proceedings pursuant to Rule 21.15 of the Federal Circuit Court of Australia Rules 2001 (Cth); and
f. such other orders as the Court thinks appropriate,”
As stated above, the applicant is not required to “prove” his case. Instead the Court must determine if he has made out a prima facie case for the relief he seeks.
The allegations of fact made by the applicant can be summarised as follows from the affidavit evidence of the applicant, the statement of claim, and the written submissions provided by the applicant:
1)The applicant came to Australia with the assistance of the second respondent on a “457 visa”. He paid the second respondent in a number of instalments for his assistance with the visa.
2)The applicant’s visa was granted on 20 December 2013. He commenced working at the place of business of the first respondent in Australia on 20 January 2014. The second respondent, the director of the first respondent, “directly supervised and managed” the work of the applicant for the first respondent.
3)The applicant undertook a number of different tasks and learnt new roles. The applicant claims that in “addition to the duties listed in his employment contract” the second respondent instructed the applicant to perform “numerous other duties”, which required the applicant to work “eleven to twelve hours per day”. The applicant claims that he “was not asked to record his start and finish times anywhere and was not paid any overtime or penalty rates”. Further, the applicant was paid by the second respondent in cash and was not provided payslips or receipts by the first or second respondent.
4)In mid-February 2014 the second respondent told the applicant that he was planning to open a new business in Canberra and wanted the applicant to work there. The applicant claims that on 26 or 27 March 2014 the second respondent requested approximately $18,000 in total from him for the new position to assist with visa costs, and to assist the applicant in making a permanent residency application. The applicant did not accept this offer.
5)The applicant claims that on 31 March 2014 the second respondent “had a conversation” with him during which the second respondent told the applicant that “he was not working hard enough”. The applicant claims that he told the second respondent that he “was unable to keep working the hours he was if he was not being paid for them”. The second respondent told the applicant that “if he was not happy with the work he could go”.
6)The applicant made a complaint to the Fair Work Ombudsman on 1 April 2014, after a similar conversation with the second respondent (see (5) above)). The applicant complained that the first and second respondents had not “paid for the work he had performed”, and that the second respondent had not “arranged for him to pay tax”, and also complained about the money he had paid to the second respondent for the “457 visa”.
7)The applicant told the second respondent about the above complaint on 3 April 2014.
8)On 7 April 2014, the applicant received a letter dated 3 April 2014, by email, stating that the applicant’s employment with the first respondent had been terminated.
In these proceedings, while the second respondent filed, jointly with the first respondent, a Defence and a Cross-Claim on 13 May 2015, since withdrawn, the second respondent has not, despite opportunity, filed any evidence. In these circumstances I accepted the applicant’s submissions that his evidence should be taken at its highest, given the absence of countermanding or contrary evidence, and, further, absent any reason not to accept the evidence at face value.
As referred to above, r.13.03A(2) of the FCC Rules set out the circumstances where a respondent can be said to be in default. In the current case I am satisfied on what is before the Court that, for the purposes of r.13.03A(2)(a) of the FCC Rules, the second respondent has not satisfied the applicant’s claim, and has failed to comply with certain orders of the Court (r.13.03A(2)(b)(iii) of the FCC Rules, Order 2 of 24 June 2015 and Orders 7, 9, 10, 11 of 4 November 2015) and has failed to defend the proceedings with due diligence. For the purposes of r.13.03B(2) of the FCC Rules I find, therefore, that the second respondent is in default.
Further, for the purposes of r.13.03B(2)(c) of the FCC Rules, the commencement of the application to the Court was later supported by a statement of claim and in any event the Court ordered on 25 March 2015 (Order 1) that the proceedings continue by way of pleadings. In these circumstances it is appropriate that the Court proceeds to give judgment against the second respondent in favour of the applicant for the contraventions alleged in the statement of claim.
Those contraventions are set out above (see [24]). The relief the applicant seeks is set out at [40]a. of the applicant’s written submissions:
“The Applicant submits that the Court can, on the evidence before it, find the contraventions alleged by him in his statement of claim, namely of sections 44, 62, 90, 117, 323, 535 and 536 of the FW Act and Regulations 3.31-3.37 and 3.44-3.46, and has the power to make orders for relief as follows:
a. an order that the Second Respondent pay the Applicant damages by way of compensation, pursuant to subsection 545(2)(b) of the FW Act, for loss and damage suffered by the Applicant comprising of:
i. $12,206.40, for 240 hours of unpaid overtime;
ii. $1191.83, for unpaid superannuation entitlements;
iii. $993.50, for unpaid annual leave entitlements;
iv. $450, for a $45 per week 'employee deduction' deducted from the Applicant's wages over 10 weeks without his authorisation;
v. $25,000, for an amount demanded of the Applicant by the Respondents and paid by the Applicant to the Respondents for sponsorship by the Respondents for the Applicant's Temporary Work (Skilled) (subclass 457) Visa (Visa Grant Number: 8099574184411); and
vi. distress, hurt and humiliation [footnote here refers to: The Applicant submits that there is authority for the proposition that the Court has the power under s 545 of the FW Act to award damages for non-economic loss of pain and suffering, that authority being Transport Workers' Union of Australia v Atkins [2014] FCCA 1553, per Driver J];”
I accept the Court has the power, and that it is appropriate to make the order in respect of items (i) to (iv) above. I also note, agree with, and relevantly apply, the calculations attached to the applicant’s written submissions of 4 May 2016, as they derive from the evidence before the Court, to find that the amounts sought by the applicant at (i) to (iv) are amounts for which he should be compensated. I will make an order in that regard.
I do not accept however, that given the nature of the current consideration in these proceedings that I can make the order in respect of item (vi).
The applicant initially submitted that Transport Workers’ Union of Australia v Atkins [2014] FCCA 1553 at [16] per Judge Driver, was authority for the proposition that the Court has the power to make orders for non-economic loss under s.545 of the FWA.
That may be the case in certain circumstances. However, as His Honour made clear (Atkins at [16]), the power to make such an order derives from the Court’s satisfaction that a breach of the FWA has occurred. In the current case, however, these proceedings did not reach a final hearing from which such a determination may have arisen.
In the current case, the relief sought by the applicant derives from summary proceedings where the relevant test for the Court is not satisfaction as to a breach of the FWA, but whether, on the case as pleaded, the applicant appears entitled to judgment against the second respondent.
The context for the Court’s reasoning in Atkins arose from a subsequent hearing on compensation and penalties at which the party against whom the relevant orders were made, participated, and was heard (Atkins at [9], [10] and [12]).
The current proceedings have not reached that stage. Further, while the respondent in Atkins did not appear at an earlier hearing of that matter (Atkins at [2]), he subsequently appeared, and did not contest the proposition that he had breached relevant parts of the FWA. The Court proceeded on that basis. No such concession or finding has been made in the current case.
I am unable to be satisfied on the statement of claim filed in this case, and in the absence of anything further, that the applicant is entitled to compensation for distress, hurt or humiliation.
The applicant initially also sought an amount of $25,000 being an amount he paid to the first respondent and second respondent for sponsorship by them for the applicant’s work visa (see item (v)). The matter was the subject of exchange between the Court and the applicant’s counsel at the hearing. Ultimately the applicant did not press this item.
The applicant also sought an order that the second respondent pay pecuniary penalties, pursuant to s.546(1) and s.546(3)(c) of the FWA in respect of the contraventions.
Again, it is important to note that these proceedings reached the state of an interlocutory hearing, and the matter disposed of because of the second respondent’s default.
On the evidence, the second respondent would have been on general notice of the issue of pecuniary penalties (see the affidavit of Ms Bickovsky of 17 February 2016 and 4 March 2016, with annexures of letters to the second respondent). However, I cannot be satisfied that the second respondent has had reasonable notice specifically of any hearing on the question of pecuniary penalties. While the second respondent has not acted with due diligence in this matter, given the serious nature of the matter of pecuniary penalties, it is not appropriate to proceed without that opportunity being given to him. At this time, I will make no order as to pecuniary penalties.
The applicant has also sought an order that the second respondent pay interest on the judgment pursuant so s.547 of the Act. As the order I propose to make is not a pecuniary penalty order, and the applicant has applied for interest on judgment, in my view it is appropriate to make such an order as to the interest, given that I cannot see any good reason to not make that order.
The applicant also asks for an order for costs. That is that the second respondent pay the applicant’s costs thrown away in relation to the mediation listed for 11 September 2015 in these proceedings. The applicant says that the second respondent’s conduct in relation to this was unreasonable and therefore the order should be made.
By virtue of s.570(1) of the FWA, parties in proceedings of this type should ordinarily bear their own costs. Section 570(2) of the FWA however sets out limited circumstances where costs may be awarded in the exercise of the Court’s discretion.
Section 570(2)(b) of the FWA is in the following terms:
“(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs;…”
On the relevant evidence (see affidavit of Ms Bickovsky of 17 February 2016 at [6] – [21] and annexures “RB-2” to “RB-17”), I find that the second respondent’s conduct was so unreasonable as to justify the order as sought by the applicant. On the evidence, the applicant incurred costs in preparing for the mediation. This included preparation of relevant documents and correspondence with the second respondent and his then legal representative.
I find, on the evidence, that the second respondent had reasonable notice of the date of the mediation and did not appear. His explanation that he could not do so because he was overseas on the day before the date of the mediation does not provide, in the circumstances, a satisfactory basis for not attending. This is particularly so, given the length of the notice, and that the second respondent made, on the evidence, no satisfactory attempt to notify the applicant at any earlier time.
As to the amount sought, I am satisfied on the evidence that $1240.25 is a reasonable amount (see affidavit of Ms Bickovsky of 4 May 2016).
Finally, the applicant seeks certification that it was reasonable to engage counsel to appear in the proceedings pursuant to r.21.15 of the FCC Rules. The relevant test is one of reasonableness. I am satisfied it was reasonable for the applicant to engage counsel. Therefore, it is appropriate that such a certificate be granted and I will do so.
In all I make the following orders:
1)The second respondent pay the applicant an amount of $14,841.73 pursuant s.545(2)(b) of the FWA.
2)The second respondent pay interest on the judgment.
3)The second respondent pay the applicant an amount of $1240.25 for costs thrown away in relation to the mediation.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 August 2016
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