Singh v Sergrow Pty Ltd - [2024] FedCFamC2G 648

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Sergrow Pty Ltd [2024] FedCFamC2G 648

File number(s): MLG 582 of 2024

Judgment of: JUDGE O'SULLIVAN

Date of judgment: 19 July 2024

Catchwords: FAIR WORK – PRACTICE AND PROCEDURE – application and statement of claim filed when applicant represented by solicitor – statement of claim struck out– non-compliance with subsequent orders by applicant– applicant no longer represented – application in a proceeding by respondents arising from defaults by applicant– proceedings dismissed for defaults

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Cases cited:
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation [2012] FCAFC 180

Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160

Wu v Avin Operations Proprietary Limited (2006) FCA 36

Division: Division 2 General Federal Law

Number of paragraphs: 22

Date of last submission/s: 19 July 2024

Date of hearing: 19 July 2024

Place: Melbourne

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Driscoll-Hayward

Solicitor for the Respondents: Hilliard & Berry Solicitors
ORDERS

MLG 582 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MANPREET SINGH
Applicant

AND:
SERGROW PTY LTD (ABN 18 114 840 836)
First Respondent

PATRICK JUSTIN SERGI
Second Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

19 JULY 2024

THE COURT ORDERS THAT:
1.Pursuant to Rule 13.04(1)(a)&(e) and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth), the application filed 13 March 2024 be dismissed.

AND THE COURT NOTES THAT:
A.The applicant failed to comply with the orders made on 16 April 2024, had not sought by application or otherwise an extension of time or an adjournment of today’s hearing to allow him to do so, and when attending Court this day could provide no proper explanation for his defaults or any assurance that they could be remedied in a reasonable time.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)

On 13 March 2024 Manpreet Singh (the applicant) commenced proceedings in the Fair Work Division of this Court by filing an application and statement of claim (running to over 162 paragraphs) naming Sergrow Pty Ltd and Patrick Justin Sergi as the first and second respondents (the respondents).
After the respondents had filed a response and defence (joining issue with most of the allegations in the applicant’s pleading) the proceedings came before the Court for a directions…

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.

Continue reading Singh v Sergrow Pty Ltd

Details

AGLC: Singh v Sergrow Pty Ltd [2024] FedCFamC2G 648
Case: [2024] FedCFamC2G 648
Decision Date

CaseChat Overview and Summary

The case of Singh v Sergrow Pty Ltd involved a plaintiff, Mr. Singh, who filed a claim against the respondents, Sergrow Pty Ltd and its director, alleging various breaches of the Fair Work Act 2009. Mr. Singh sought declarations, orders, and pecuniary penalties. The respondents denied the allegations and the case was marked by procedural difficulties, with Mr. Singh's initial pleadings being found defective. Despite being given an opportunity to amend his pleadings, Mr. Singh failed to comply with court orders and did not engage with the proceedings, leading to the respondents applying for dismissal of the case. The court found that Mr. Singh's defaults, including non-compliance with orders and lack of engagement, demonstrated an inability or unwillingness to cooperate with the court and the other party. The court concluded that the dismissal of Mr. Singh's application was necessary to ensure the effective and efficient delivery of justice, in line with the objects of the Federal Circuit and Family Court of Australia Act 2021. The court dismissed Mr. Singh's application, finding that his defaults justified such an outcome. The dismissal was also consistent with the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

When the proceedings returned to Court today, 19 July 2024, in accordance with the above orders, the applicant appeared in person and Ms Driscoll-Hayward appeared on behalf of the respondents. The respondents, having demonstrated that the applicant had been served, which he acknowledged, with the Default Judgment Application (see affidavit of Simon Berry filed 15 July 2024), pressed for the Court to make the orders they sought in the face of the applicant’s default/s. BACKGROUND In his initial pleadings the applicant had alleged that the first respondent operated an agricultural business in New South Wales, the second respondent was the sole director and that he had worked for the first respondent (either directly or indirectly) since 2018. The applicant had alleged the first respondent had contravened inter alia ss. 45, 357, 535 and 536 of the Fair Work Act 2009 (Cth) (the FW Act) and that the second respondent was pursuant to s.550 of the FW Act also liable for many of those contraventions. The applicant sought various declarations and orders, including under section 545, along with pecuniary penalties. In their defence the respondents largely denied the allegations contained in the statement of claim. It was apparent at the directions hearing on 16 April 2024 that the applicant and his solicitor were still coming to grips with the task of trying to properly articulate the case he wanted to make and against who. Not only was this acknowledged on that day, after only some of the manifold flaws in the pleadings were identified, but correspondence between the parties prior to this had proceeded on the basis that it would be necessary. In any event no one demurred to the observation that the statement of claim (prepared by the applicant’s then solicitor) was flawed. As the authorities relevant to the issue demonstrate where a pleading is defective and there is some prospect that the defective pleading might be replaced by one that is adequate then leave to replead ought be given and as a matter of fairness claims such as those made by the applicant should be pleaded with precision. It was against that background that the orders were made on 16 April 2024. However, as the course of events since records the applicant’s solicitor filed a notice of ceasing to act and the applicant has not complied with those orders, replied to the respondents’ application in proceeding or, despite having had the chance to do so, provided anything to explain or excuse those defaults. The material relied on by the respondents demonstrates the applicant was made aware of the previous orders, that the matter was to return to Court today, the respondents’ application in a proceeding and the material relied on and that they sought the proceedings be dismissed due to his various defaults. The applicant admitted all of this and simply said he had no money and that is why he had not done anything. He also acknowledged he had nothing to establish this. APPLICATION IN A PROCEEDING

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, in the face of the applicant’s apparent disengagement from the proceedings, and in light of the events referred to above, there is nothing to suggest that these defaults can or would be cured or that the Court could have any confidence that the applicant will co-operate in complying with Court orders and minimising any further disruption. The applicant admitted as much when that was put to him. By reason of the above, the conclusion arrived at is that the applicant has (and will) by his own (in)action manifested an inability or unwillingness to cooperate with the Court and the other party (see Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552 at [44]) in the future conduct of these proceedings.CONCLUSION Accordingly, and for the reasons set out above, on the basis of the applicant’s defaults for the purposes of r 13.04(1)(a)&(e), orders will be made to dismiss the application filed 13 March 2024 under r 13.05(1)(a) of the FCFCOA Rules. This also, it seems to me, is in the particular circumstances of this matter consistent with the "overarching purpose" identified in s 190 of the FCFCOA Act.

Ratio Decidendi

Legal Principle Established

The applicant admitted he had not complied with the orders and, despite having had time to do so, had no material to explain his failure to do so. CONSIDERATION The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which include in s 190(1) of the FCFCOA Act that the overarching purpose those provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. To that end section 192(4) empowers the Court to dismiss proceedings in the event of a party’s failure to comply with a direction. There are also the relevant provisions of the FCFCOA Rules to consider. Relevantly for present purposes rule 13.04(1) provides:When a party is in default(1)For the purposes of rule 13.05, 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. Rule 13.05(1) of the FCFCOA Rules then provides: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. How the Court should approach an application like the Default Judgment Application was considered in Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160 (‘Walker’) and Helm v Sapphire Pty Ltd [2023] FedFamC2G 915. Gratefully adopting the non-exhaustive list of considerations referred to in those decisions I note the nature of the applicant’s defaults have already been referred to along with the circumstances, duration and continuing nature of those defaults. As set out above there is no explanation from or evidence of any attempt/s by the applicant to rectify that situation. The evidence relied on and submissions made today on behalf of the respondents sets out their position in relation to the unnecessary delay, expense or other prejudice and burden that has or will be occasioned to them by reason of those defaults. Finally, in the face of the applicant’s apparent disengagement from the proceedings, and in light of the events referred to above, there is nothing to suggest that these defaults can or would be cured or that the Court could have any confidence that the applicant will co-operate in complying with Court orders and minimising any further disruption. The applicant admitted as much when that was put to him. By reason of the above, the conclusion arrived at is that the applicant has (and will) by his own (in)action manifested an inability or unwillingness to cooperate with the Court and the other party (see Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552 at [44]) in the future conduct of these proceedings.CONCLUSION

File number(s):	MLG 582 of 2024
Judgment of:	JUDGE O'SULLIVAN
Date of judgment:	19 July 2024
Catchwords:	FAIR WORK – PRACTICE AND PROCEDURE – application and statement of claim filed when applicant represented by solicitor – statement of claim struck out– non-compliance with subsequent orders by applicant– applicant no longer represented – application in a proceeding by respondents arising from defaults by applicant– proceedings dismissed for defaults
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases cited:	Professional Administration Service Centres Pty Ltd v Commissioner for Taxation [2012] FCAFC 180 Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160 Wu v Avin Operations Proprietary Limited (2006) FCA 36
Division:	Division 2 General Federal Law
Number of paragraphs:	22
Date of last submission/s:	19 July 2024
Date of hearing:	19 July 2024
Place:	Melbourne
Counsel for the Applicant:	In person
Counsel for the Respondents:	Ms Driscoll-Hayward
Solicitor for the Respondents:	Hilliard & Berry Solicitors

MLG 582 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MANPREET SINGH Applicant
AND:	SERGROW PTY LTD (ABN 18 114 840 836) First Respondent PATRICK JUSTIN SERGI Second Respondent

ORDER MADE BY:	JUDGE O'SULLIVAN
DATE OF ORDER:	19 JULY 2024