Siedlanowski v The Chocolate Barn Pty Ltd - [2012] FMCA 765

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIEDLANOWSKI v THE CHOCOLATE BARN PTY LTD & ANOR

[2012] FMCA 765

INDUSTRIAL LAW – Small claims – no appearance by or for the respondents – application made.

Fair Work Act 1999, s.548
Federal Magistrates Court Act 1999, s.17A
Federal Magistrates Court Rules 2001, rr.4.03, 13.03B, 16.05

Black v Young Republic & Anor [2012] FMCA 729

Applicant:

JADE SIEDLANOWSKI

First Respondent:

THE CHOCOLATE BARN PTY LTD
ACN 135 432 165

Second Respondent:

ABDUL-RAHMAN ABU-MAHMOUD

File Number:

SYG 1283 of 2012

Judgment of:

Nicholls FM

Hearing date:

22 August 2012

Date of Last Submission:

22 August 2012

Delivered at:

Sydney

Delivered on:

30 August 2012

REPRESENTATION

The Applicant:

In Person

The Respondents:

No appearance

ORDERS

The applicant is granted leave to amend the application, made on 12 June 2012, such that “The Chocolate Barn Pty Ltd – ACN 135 432 165” is named as the first respondent and Mr Abdul-Rahman Abu-Mahmoud is named as the second respondent.
The first and second respondents pay the applicant the sum of $1,230.54 less tax within 28 days of the date on which these orders are entered.
The first and second respondent pay the applicant’s costs set in the sum of $150.00 within 28 days of the date on which these orders are entered.
The applicant notify the first and second respondents, in writing and within 21 days of the date on which these orders are entered, at their registered business address and residential address respectively, of the making of these orders and Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1283 of 2012

JADE SIEDLANOWSKI

Applicant

And

THE CHOCOLATE BARN PTY LTD - ACN 135 432 165

First Respondent

ABDUL-RAHMAN ABU-MAHMOUD

Second Respondent

REASONS FOR JUDGMENT

This is an application by Ms Jade Siedlanowski (“the applicant”), made on 12 June 2012 and amended in Court on 22 August 2012, pursuant to the Fair Work Act 2009 (Cth) (“FWA”). The applicant elected to make that application under the small claims procedure, as provided for in s.548 of the Act.
The applicant alleged that her former employer, The Chocolate Barn Pty Ltd (“the first respondent”), and the director of that business,

Abdul-Rahman Abu-Mahmoud (“the second respondent”), breached the National Employment Standard by failing to provide her with written notice of the termination of her employment. Further, that the respondents breached the Restaurant Industry Award 2010 by, variously, failing to pay to the applicant her wage, a tool allowance, overtime, and penalty rates.
As remedy for the above breaches, the applicant sought payment of $1,230.54. In addition, before the Court at the final hearing, the applicant sought to amend her points of claim (referred to as the “Form 5”) to seek that the respondents also pay the costs incurred by the applicant in the initiation of these proceedings. That was said to be a filing fee, paid on 12 June 2012, in the sum of $150.

Before…

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: [2012] FMCA 765
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court was tasked with determining whether it should grant summary judgment in a debt recovery case brought by Siedlanowski against The Chocolate Barn Pty Ltd. The Court had to consider whether the defendants had any reasonable prospect of successfully defending the claim. The primary legal issue was whether the defendants, having defaulted in their obligations, had a viable defence or any reasonable chance of successfully defending the claim for the debt and associated costs.

The Court found that the defendants had been adequately notified of the proceedings and the potential consequences of their non-appearance. Despite multiple opportunities to respond or to request an adjournment, the defendants did not appear or file a response, indicating a lack of intent to defend the claim. The Court determined that the defendants' absence and failure to respond to the application meant they had no reasonable prospect of successfully defending the claim. The Court thus concluded that it was appropriate to grant summary judgment in favour of the plaintiff.

The Court ordered that judgment be entered in favour of Siedlanowski against The Chocolate Barn Pty Ltd. The judgment included the recovery of the debt, associated costs, and any other relief as the Court deemed appropriate. The Court further directed that the judgment take effect immediately, given the defendants' default and lack of any viable defence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Under the Federal Magistrates Court Act 1999 (Cth) (“FMC Act”) the Court is able to proceed to summary judgment in certain circumstance. Section 17A of the FMC Act relevantly provides that:“Summary judgment(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is prosecuting the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.…(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or bound to fail;(b) for it to have no reasonable prospect of success.(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.” Further, the Federal Magistrates Court Rules 2001 (Cth) (“the FMC Rules”) provide that, on the default of a party, the Court can enter judgment against that party. Relevantly, r.13.03B provides that:“Orders on default…(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(i) 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.…(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.” In light of AE1(1.8.12), I was satisfied that the respondents were on notice of the application to the Court and the nature of that application. Further, given the matters set out in AE1(1.8.12), AE1(22.8.12) and AE2, I was satisfied that the respondents had been given reasonable notice of both occasions that the matter was before the Court. Further, they had been put on notice that, in the event of their non-appearance at the matter’s listing on 22 August 2012, the applicant intended to apply to the Court for final orders. Despite being on notice of those matters, there had been no appearance by, or for, either of the respondents. Nothing had been heard from them to indicate that there was any difficulty in their attending, or arranging someone to attend on their behalf. Nor was any adjournment application made. Even further, despite being required to file a formal Response within 14 days of service of the application (r.4.03 of the FMC Rules), no Response has been filed by the respondents.

Ratio Decidendi

Legal Principle Established

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