Wear v Montere E-College Pty Ltd - [2025] FCA 434

FEDERAL COURT OF AUSTRALIA
Wear v Montere E-College Pty Ltd [2025] FCA 434

File number: QUD 293 of 2024

Judgment of: RANGIAH J

Date of judgment: 8 May 2025

Catchwords: PRACTICE AND PROCEDURE – application for default judgment under r 5.23 of the Federal Court Rules 2011 (Cth) – where the respondent has not participated in the proceeding or indicated any intention to defend claim – where applicant has sufficiently pleaded claim – application granted

Legislation:
Fair Work Act 2009 (Cth) s 352

Fair Work Regulations 2009 (Cth) reg 3.01(2)

Federal Court Rules 2011 (Cth) rr 1.32, 5.22, 5.23, 5.23(2), 5.23(2)(c) and 11.02

Cases cited:
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513

Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606

CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170

Macquarie Bank Ltd v Seagle (2005) 146 FCR 400

Ross v Cotter [2015] FCA 310

Speedo Holdings BV v Evans (No 2) [2011] FCA 1227

Welsh v Digilin Pty Ltd (2008) 250 ALR 13

Division: Fair Work Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 28

Date of interlocutory hearing: 12 February 2025

Counsel for the Applicant: The Applicant was self-represented

Counsel for the Respondent: The Respondent did not appear

Table of Amendments

1 October 2025 On the orders page the name of the respondent has been amended to include (ACN 143 346 472).

ORDERS

QUD293 of 2024

BETWEEN:
SAMONE WEAR

Applicant

AND:
MONTERE E-COLLEGE PTY LTD (ACN 143 346 472)

Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

8 MAY 2025

THE COURT ORDERS THAT:
1.The respondent pay the applicant compensation of $133,800 plus interest of $12,466.

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

REASONS FOR JUDGMENT
RANGIAH J:

The applicant, Samone Wear, was employed by the respondent (Montere) between 28 August 2023 and 8 February 2024.
Montere traded under the registered business name of “Royal Gateway” and provided accredited higher education and training courses. The applicant was employed on a full-time basis in the role of General Manager.
The applicant is self-represented in the proceeding. She alleges that her employment with Montere was unlawfully terminated, in contravention of s 352 of the Fair Work Act 2009 (Cth) (the FWA). She makes a claim for compensation including loss of wages.
Montere has not filed any notice of address for service and has not participated in the proceeding by appearing at case management hearings. Accordingly, the applicant now seeks judgment entered by default.
Background
On 21 May 2024, the applicant filed her originating application. The proceeding was listed for a case management hearing before Registrar Buckingham on 15 October 2024.
On 9 June 2024, the applicant purported to serve Montere by sending an email to “mantek04@gmail.com”, which she deposes was the email address of her employer. The email attached a copy of the sealed…

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: [2025] FCA 434
Decision Date: 8 May 2025

CaseChat Overview and Summary

In the case of Wear v Montere E-College Pty Ltd, the applicant, Wear, sought a default judgment against Montere E-College Pty Ltd for non-payment of wages and superannuation. The case was heard by the Federal Circuit and Family Court of Australia. Montere had failed to participate in the proceedings or indicate any intention to defend the claim. The court was required to determine whether the applicant had sufficiently pleaded her claim and whether the default judgment should be granted.

The court found that Montere had not filed any notice of address for service and had not participated in the proceedings by appearing at case management hearings. Despite attempts to serve the documents to Montere, the company did not appear at any case management hearings. The applicant had complied with the procedural requirements and had sufficiently pleaded her claim. The court granted the application for default judgment based on the evidence provided by the applicant.

The court ordered that Montere pay the applicant compensation of $133,800 plus interest of $12,466. The judgment was based on the applicant’s entitlements under her employment contract, which included annual wages of $120,000 and superannuation at the minimum rate of 11.5% of the base salary, being $13,800 annually. The court awarded interest on the amount of $120,000 from 9 February 2024 to 8 May 2025 at the rate of 8.35%. The court concluded that the applicant’s claim was valid, and the default judgment was appropriate in the circumstances.

Orders

Orders of the court

1. The respondent pay the applicant compensation of $133,800 plus interest of $12,466.

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

Background

Background to the litigation

Montere has not filed any notice of address for service and has not participated in the proceeding by appearing at case management hearings. Accordingly, the applicant now seeks judgment entered by default.Background On 21 May 2024, the applicant filed her originating application. The proceeding was listed for a case management hearing before Registrar Buckingham on 15 October 2024. On 9 June 2024, the applicant purported to serve Montere by sending an email to “mantek04@gmail.com”, which she deposes was the email address of her employer. The email attached a copy of the sealed originating application. Montere did not appear at the case management hearing on 15 October 2024. Registrar Buckingham made orders adjourning the case management hearing to 8 November 2024 and requiring the applicant to serve the order by express post to Montere’s registered office at 1131 Mount Cotton Road, Burbank, Queensland, 4156. On 6 November 2024, the applicant filed an affidavit of service. The documents posted by the applicant to Montere’s registered office included the order, the originating application, a statement of claim and a Section 368 Certificate from the Fair Work Commission. On 8 November 2024, Montere again failed to appear at the case management hearing. Registrar Buckingham made orders adjourning the case management hearing to 21 November 2024 and requiring the applicant to serve the order by express post to Montere’s registered office. The applicant filed two further affidavits of service on 20 November 2024 and 11 December 2024, which indicate that she served the order and again served the originating application and statement of claim on Montere by personally delivering the documents to a secure letterbox at its registered office and then by express post to its registered office. Montere did not appear at the case management hearing listed for 21 November 2024 and Registrar Buckingham adjourned the case management hearing to a date to be fixed. The case management hearing was subsequently listed before me for 11 December 2024. On 11 December 2024, at a case management hearing that was only attended by the applicant, I made the following orders:1.By 4.30 pm (AEST) on 27 January 2025, the applicant file and serve upon the respondent:(a)an affidavit setting out the factual allegations she makes against the respondent and identifying the provisions of the Fair Work Act 2009 (Cth) she alleges have been contravened and on what basis she alleges they have been contravened; and(b)an application for default judgment.2.The application for default judgment be set down for hearing at 10.15 am (AEST) on 12 February 2025. The applicant filed two further affidavits on 25 January 2025 and 11 February 2025 which deposed to service on Montere of the same material as the previous affidavits, as well as a further affidavit intended to comply with Order 1(a) of my orders of 11 December 2024, the applicant’s employment contract, email correspondence between the applicant and her employer, medical certificates and a letter of termination. No specific application for default judgment was filed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant’s entitlements under her employment contract with Montere include annual wages of $120,000 and superannuation at the minimum rate of 11.5% of the base salary, being $13,800 annually.Conclusion I am satisfied that judgment should be entered by an order that Montere pay the applicant a sum of $133,800, being wages and superannuation for one year. I will award interest on the amount of $120,000 from 9 February 2024 to 8 May 2025 at the rate identified in paragraph 2.2 of the Court’s “Interest on judgments” practice note (GPN-INT). The rate is 8.35%, producing interest of $12,466.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 293 of 2024
Judgment of:	RANGIAH J
Date of judgment:	8 May 2025
Catchwords:	PRACTICE AND PROCEDURE – application for default judgment under r 5.23 of the Federal Court Rules 2011 (Cth) – where the respondent has not participated in the proceeding or indicated any intention to defend claim – where applicant has sufficiently pleaded claim – application granted
Legislation:	Fair Work Act 2009 (Cth) s 352 Fair Work Regulations 2009 (Cth) reg 3.01(2) Federal Court Rules 2011 (Cth) rr 1.32, 5.22, 5.23, 5.23(2), 5.23(2)(c) and 11.02
Cases cited:	Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 Macquarie Bank Ltd v Seagle (2005) 146 FCR 400 Ross v Cotter [2015] FCA 310 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 Welsh v Digilin Pty Ltd (2008) 250 ALR 13
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	28
Date of interlocutory hearing:	12 February 2025
Counsel for the Applicant:	The Applicant was self-represented
Counsel for the Respondent:	The Respondent did not appear

Table of Amendments
1 October 2025	On the orders page the name of the respondent has been amended to include (ACN 143 346 472).

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	8 MAY 2025