Singh v Real Bake PTD Ltd

Case •

[2017] FCCA 3111

•

27 October 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v REAL BAKE PTD LTD [2017] FCCA 3111
Catchwords:
INDUSTRIAL LAW – Application for declarations and orders as a result of underpayments and breaches of applicable award – breach of a civil remedy provision – application to proceed undefended – default by respondent – orders made on default by respondent.

Legislation:

Fair Work Act 2009, ss.544, 545, 547

Federal Circuit Court Rules 2001 (Cth), rr.13.03A(2), 13.03B(2), 13.03C(1)

Cases cited:

Hartnett Legal Services Pty Ltd v Ballantyne [2015] FCA 744
Applicant: DEWINDER PAL SINGH
Respondent: REAL BAKE PTD LTD
(ACN 127 286 122)
File Number: MLG 1696 of 2017
Judgment of: Judge O'Sullivan
Hearing date: 27 October 2017
Date of Last Submission: 27 October 2017
Delivered at: Melbourne
Delivered on: 27 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Ireland
Solicitors for the Applicant: McDonald Murholme
Solicitors for the Respondent: No appearance

THE COURT ORDERS THAT:

  1. The applicant have leave to proceed on an undefended basis pursuant to Rule 13.03A(2)(i)(ii)(iii)(vii), Rule 13.03B(2)(d) and Rule 13.03C(1)(e) of the Federal Circuit Court Rules2001 (“the Rules”).

THE COURT DECLARES THAT:

  1. Upon admissions which the respondent is taken to have made consequent upon defaults by the respondent, under Rule 13.03A(2)(a)(b)(i)(ii)(iii)(vii) of the Rules the Court declares pursuant to Rule 13.03B(2)(c) of the Rules that the respondent contravened section 45 of the Fair Work Act 2009 (Cth) (“the FW Act”) by failing to comply with the Food, Beverage and Tabaco Manufacturing Award 2010.

THE COURT ORDERS THAT:

  1. Pursuant to Rule 13.03B(2)(d) of the Rules and section 545(2)(b) of the FW Act, the respondent pay the applicant an amount of $7,427.59 as required by law, within 28 days of service of this Order.

  2. Pursuant to Rule 13.03B(2)(d) of the Rules and section 547(2) of the FW Act, the respondent pay interest to the applicant on the amount referred to in paragraph 3 above, $2,511.64 within 28 days of service of this Order.

  3. The matter be fixed for a penalty hearing on 20 February 2018 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.

  4. The applicant file and serve anything to be relied on at the penalty hearing 28 days prior.

  5. The respondent file and serve anything to be relied on at the penalty hearing 14 days prior.

  6. The applicant is to serve the respondent with a copy of this Order within 14 days of today’s date.

AND THE COURT NOTES:

A.Rule 16.05.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1696 of 2017

DEWINDER PAL SINGH

Applicant

And

REAL BAKE PTD LTD (ACN 127 286 122)

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. Before the Court today are proceedings between Dewinder Pal Singh, (“the applicant”) and Real Bake Pty Ltd (“the respondent”).   

Background

  1. The applicant commenced these proceedings by application and statement of claim filed on 4 August 2017. In the statement of claim, the applicant alleged that the respondent was duly incorporated and capable of being sued. The respondent was an employer, as defined by section 335 of the Fair Work Act 2009 (Cth) (“the FW Act”); a national system employer as defined by section 14 of the FW Act; and he was employed by the respondent from July 2010 to June 2012.

  2. In the statement of claim, the applicant alleged that he was employed by the respondent on a casual basis during the above periods.  The applicant alleged during that time that his employment was covered by the Food, Beverage and Tobacco Manufacturing Award 2010, and the applicant was classified at level 3 of that award. 

  3. The applicant further alleged that during the course of his employment, he was underpaid particular amounts set out in the amended statement of claim, having regard to what he said were his entitlements under the award. The applicant alleged that these alleged breaches of the award constituted a breach of section 45 of the FW Act, and as a result of those breaches he suffered loss or damage.

  4. The applicant’s original statement of claim set out the prayer of relief and also attached calculations of what was said to be the hours worked and the amounts alleged to be owing as a result of the alleged contraventions of the applicable award made therein. 

  5. The applicant also filed an affidavit of service from a receptionist employed by his solicitor’s office on 17 October 2017.  The affidavit of service made clear that the respondent had been served with the applicant’s material at the respondent’s registered address. 

  6. When the matter came before the Court for a first Court date on 18 October 2017 the applicant appeared represented.  There was no appearance by or on behalf of the respondent.  Given the material the applicant had filed and that the Court was satisfied the respondent had been served, the Court made the following orders:

    “THE COURT ORDERS THAT:

    1.  The matter be adjourned to 27 October 2017 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.

    2.  The applicant serve the respondent with a copy of these orders by 23 October 2017.

    3.  The applicant file and serve any amended Statement of Claim by 23 October 2017.

    4.  The applicant file with the Court up to date ASIC company extract on the respondent under the cover of an affidavit by 23 October 2017.

    5. In the event the applicant complies with orders 2, 3 and 4 on the adjourned date and if the respondent fails to appear, the applicant may seek leave to apply to proceed with orders as set out in any amended statement of claim filed pursuant to Rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (“the Rules”).

    AND THE COURT NOTES:

    A. The affidavit of service filed 17 October 2017 proving service on the respondent of the application filed 4 August 2017.”

  7. Since then the applicant, has filed on 23 October 2017 an amended statement of claim and an affidavit. These documents narrowed the period of the claim made by the applicant against the respondent given s.544 of the FW Act. On 25 October 2017 there was also filed an affidavit of service of Alisha Mattiassi, evidencing that the applicant has complied with his obligations to serve the respondent with all his material and put the respondent on notice that the matter was in Court today.

The hearing

  1. The matter returned to Court for hearing today.  Mr Ireland of Counsel has appeared for the applicant. The respondent has been called outside of Court.  There has been no answer to the call.  There has been no contact made with the Court by or on behalf of the respondent to explain their absence (in the face of the evidence before the Court which satisfies me that they are aware that the matter is in Court today) or to seek an adjournment. 

  2. There has been no material filed with the Court by or on behalf of the respondent.  In the face of the default/s by the respondent to do that which they are required to do both under the rules of the Court and as contained in the orders made on 18 October 2017, Counsel for the applicant today sought leave to proceed with his client’s amended statement of claim, filed on 23 October 2017.   

  3. Rules 13.03A, 13.03B and 13.03C of the Federal Circuit Court Rules 2001 (“the Rules”) provide:

    “Rule 13.03A:

    (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

    (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.

    Rule 13.03C

    (1)  If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

    (a)  adjourn the hearing to a specific date or generally;

    (b)  order that there is not to be any hearing, unless:

    (i)  the proceeding is again set down for hearing; or

    (ii)  any other steps that the Court directs are taken;

    (c)  if the absent party is an applicant--dismiss the application;

    (d)  if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;

    (e)  proceed with the hearing generally or in relation to any claim for relief in the proceeding.

    (2)  If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(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.”

  4. In Hartnett Legal Services Pty Ltd v Ballantyne [2015] FCA 744 Rangiah J considered the correct test that should be applied in granting default judgment.[1]

    [1] See paragraphs [28]-[76].

  5. The Rules provide the Court with authority to give judgment or to make any other order against the respondent. I am satisfied the respondent has not satisfied the applicant’s claim. The respondent has not filed a notice of address for service, a response, or affidavit as required. The respondent has not complied with an order of this Court and having regard to Rules 13.03A(2)(a), 13.03A(2)(b)(i), (ii),(iii) and (vii) the respondent is in default for the purposes of Rules 13.03B(2).

  6. In the face of the respondent’s failure to appear this day and the defaults referred to above, a combination of Rules 13.03B(2), 13.03B(6) and/or 13.03C(1) provides the Court with ample authority to give judgment or make any other order against the respondent.

  7. Given the defaults by the respondent and the material that the applicant has filed, I am satisfied pursuant to the relevant sections of the Rules I am able to proceed with the application this day.

  8. On the face of the material that Counsel for the applicant has identified, I am satisfied the applicant has made out a sufficient basis on the face of the amended statement of claim for the relief sought in relation to the underpayments set out therein, as well as the interest on the amounts owing, as a result of what, I am satisfied and will declare to be the respondent’s contraventions of the applicable award. 

  9. Section 545 of the FW Act confers on the Court broad powers to grant relief to persons who have suffered as a result of a contravention of a civil remedy provision. By virtue of s.545(2) of the FW Act the Court has the power to order a payment of compensation for loss that a person has suffered “because of” a contravention as well as interest on that amount (see s.547).

  10. For the reasons set out above I make the requisite declarations that the respondent has contravened the provisions of the award referred to in the amended statement of claim and the orders pursuant to s.545 and 547 of the FW Act as a result. I will require the applicant to serve the respondent with a copy of the orders made this day and otherwise fix the matter for a penalty hearing.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Associate: 

Date:  12 December 2017


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Hartnett Legal Services Pty Ltd v Ballantyne [2015] FCA 744