Welsh v Allblend Holdings Pty Ltd (No.4)

[2010] FMCA 521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WELSH v ALLBLEND HOLDINGS PTY LTD (No.4) [2010] FMCA 521

INDUSTRIAL LAW – Non-payment of accrued annual leave and payment in lieu of notice.

INDUSTRIAL LAW – Costs – no costs jurisdiction – whether unreasonable act or omission – failure to attend or indicate position an unreasonable act – costs awarded – assessment of costs – where costs include all legal costs and disbursements.

PRACTICE AND PROCEDURE – Summary judgment – traditionally cautious approach to summary judgment in Federal Magistrates Court not necessary where no appearance by respondent and no evidence in opposition to application for summary judgment.

Federal Magistrates Act 1999 (Cth)
Workplace Relations Act 1996 (Cth), ss.235, 661(4), 666(3)

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352
George v Fletcher (Trustee) [2010] FCAFC 53
Hill v Lang [2010] FCA 629
Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281
Welsh v Allblend Holdings Pty Ltd (No.2) [2010] FMCA 377
Welsh v Allblend Holdings Pty Ltd (No.3) [2010] FMCA 378

Applicant: PENELOPE JANE WELSH

Respondent/Applicant by Cross-Claim: ALLBLEND HOLDINGS PTY LTD

Second Respondent by Cross-Claim: 2B WIZARDS PTY LTD

File Number: PEG 176 of 2009

Judgment of: Lucev FM

Hearing date: 19 July 2010

Date of Last Submission: 19 July 2010

Delivered at: Perth

Delivered on: 19 July 2010

REPRESENTATION

Counsel for the Applicant/Second Respondent by Cross-Claim: Mr M. Fatharly

Solicitors for the Applicant/Second Respondent by Cross-Claim: Kott Gunning Lawyers

The Respondent/Applicant by Cross-Claim: No appearance

ORDERS

1. There be judgment for the applicant in the amount of $23,536.62, payable by the respondent to the applicant by 30 July 2010; and that all other claims and applications in the matter be dismissed, save as set out below.

2. The respondent pay the applicant’s costs in the sum of $9,000 by 30 July 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 176 of 2009

PENELOPE JANE WELSH

Applicant

And

ALLBLEND HOLDINGS PTY LTD

Respondent/Applicant by Cross-Claim

2B WIZARDS PTY LTD

Second Respondent by Cross-Claim

REASONS FOR JUDGMENT

(Ex tempore – revised from the transcript)

1. This is an application made orally in these proceedings for summary judgment on behalf of the applicant, supported by an affidavit sworn by the applicant on 16 July 2010 and filed that day.[1] Liberty to make such application was granted by Order 3 of the Court’s Orders of 30 June 2010, which provided that if there was no appearance by the respondent at the mediation listed for 8 July 2010, the applicant could make an application for summary judgment at the directions hearing today, and the applicant has done so.

   [1] Affidavit of Penelope Jane Welsh, sworn 16 July 2010 (“Ms Welsh’s Summary Judgment Affidavit”).

Litigation history

1. It is necessary, in the circumstances, to set out the litigation history of the matter because that is relevant for later purposes.

2. The application was filed and commenced by way of Statement of Claim on 25 September 2009 and a Response and Defence was filed on 23 November 2009. On 10 December 2009 the respondent filed an application in a case for leave to amend its Response and Defence and to file a Cross-Claim. The respondent’s application in a case was heard on 2 February 2010, and judgment was delivered granting the application, allowing the Minute of Amended Response and Amended Defence and Cross-Claim to stand as the pleading.[2]

   [2] Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 (“Welsh (No.1)”) was delivered on 23 April 2010, and those Reasons for Judgment set out, in fairly fulsome terms, the litigation history to that time in greater detail.

3. On 29 April 2010 there was a directions hearing, as a consequence of which the question of costs of the respondent’s application in a case was argued on 24 May 2010, and judgment was delivered on the question of costs, dismissing the application for costs by the applicant on 4 June 2010.[3] As a consequence of that judgment, and the way in which the matters proceeded, there was also a further judgment indicating that the matter was properly in the Fair Work Division of the Court, rather than the General Division of the Court.[4] And, as a consequence of those matters, there was an Order made on 4 June 2010 setting the matter down for a directions hearing on 5 July 2010 and indicating that the applicant had liberty to apply for summary judgment at that time; it having been indicated, on or prior to 4 June 2010, that the respondent, Allblend Holdings Pty Ltd,[5] was likely to be unrepresented at future hearings.

   [3] Welsh v Allblend Holdings Pty Ltd (No. 3) [2010] FMCA 378 (“Welsh (No. 3)”).

   [4] Welsh v Allblend Holdings Pty Ltd (No. 2) [2010] FMCA 377.

   [5] “Allblend Holdings”.

4. On 16 June 2010 Allblend Holdings’ then solicitor filed a Notice of Withdrawal as Lawyer and, as the Court has indicated, that was previously foreshadowed and not unexpected. As a consequence, when the matter was before the Court on 30 June 2010, there was a further Order made that if there was no attendance by Allblend Holdings at the mediation on 8 July 2010, then today’s application for summary judgment could be made orally.

5. The Court notes that accompanying the application for withdrawal as lawyer was an affidavit from Mr Nevin.[6] In Mr Nevin’s Affidavit, he deposed that:

   a)he had previously had conduct of the case on behalf of Allblend Holdings;

   b)he had previously signed a Notice of Intention to Withdraw as Lawyer (on 2 June 2010) and sent that by prepaid post to the registered office of Allblend Holdings;

   c)on 8 June 2010 he wrote to the registered office of Allblend Holdings, enclosing a copy of the Orders of this Court of 4 June 2010; and

   d)on 29 June 2010 he wrote to the registered office of Allblend Holdings by regular prepaid post, advising that the matter was listed for mediation on 8 July 2010, and that Allblend Holdings should get alternative representation.

   [6] Affidavit of Peter Albert Nevin, sworn 29 June 2010 (“Mr Nevin’s Affidavit”).

6. The Court is satisfied as to service of the Order of 30 June 2010 by reason of Mr Nevin’s affidavit and also, as indicated in the course of submissions to Mr Fatharly, takes notice of the Affidavit of Service of Ms Loller,[7] that deposes to the despatch and receipt of the Order of 30 June 2010 by registered post on Allblend Holdings; the despatch being on 30 June 2010 and the confirmation of receipt being received on 6 July 2010.

   [7] Affidavit of Service (General) of Jennifer Claire Loller, sworn 8 July 2010.

7. The matter was, as indicated previously, listed for mediation on 8 July 2010 before Registrar Gilich. The Court record and Ms Welsh’s Summary Judgment Affidavit make it evident there was no appearance on that day for Allblend Holdings.

8. From Ms Welsh’s Summary Judgment Affidavit it is clear that the business of Allblend Holdings, by which she was employed, and which traded as Aragon Education and Training, has moved from the premises which it previously occupied when she was employed, and no longer appears to be accredited as a provider of training services, and has been removed from that role by reason of a decision of the Department of Racing, Gaming and Liquor; which is adverted to in her affidavit. Furthermore, it appears that both the website and phone number for Allblend Holdings’ trading entity no longer operate and the business name no longer appears in searches.

9. There is some hearsay, twice removed, evidencing that Allblend Holdings probably has no assets, and there is certainly some hearsay evidence that Allblend Holdings’ sole director went overseas in March 2010, and has not returned.

10. The Statement of Claim in this matter alleges non-payment of accrued annual leave in the sum of $16,353.90 under s.235 of the Workplace Relations Act 1996 (Cth);[8] and failure to provide payment in lieu of notice in the sum of $5,384.62 under s.661(4) of the WR Act, and the applicant claims the total of those sums. The question of penalty which was in issue is no longer pressed, but the applicant does seek interest and costs.

    [8] WR Act.

11. As the Court indicated to Mr Fatharly in the course of his submissions, it seems that the sum claimed, with respect to accrued annual leave, is slightly overstated in the Statement of Claim; the correct sum being $16,152, which comes from a reading of Ms Welsh’s Summary Judgment Affidavit which says:

    14.    I truly believe that the First Respondent has no defence to my claim and that the Amended Defence and Cross-Claim against me personally and the Second Respondent are baseless. I further believe that given the circumstances of the First Respondent referred to in this affidavit that the Amended Defence and Cross-Claim will not be pursued or the subject of any evidence.

    15.    At paragraph 9 of my Statement of Claim the events specified for which I believe the Respondent is justly and truly indebted to me are:

    (a)    Accrued annual leave for 3 fortnights at 80 hours per fortnight at $67.30 per hour; and

    (b)    Payment in lieu of notice of one fortnight’s pay of $5,384.[9]

    [9] Ms Welsh’s Summary Judgment Affidavit at paras.14-15.

12. The Court notes that the Amended Response, and Amended Defence and Cross-Claim make claims contrary to Ms Welsh’s Summary Judgment Affidavit, but there is no evidence to the contrary before the Court, and in circumstances where the Court is satisfied that Allblend Holdings are on notice of summary judgment being a possible outcome of today’s hearing, and in circumstances where Allblend Holdings has done nothing, by way of appearance or filing of an affidavit, or any other steps, since the withdrawal of their lawyer on 16 June 2010, the Court is not in a position to doubt the veracity of Ms Welsh’s Summary Judgment Affidavit.

13. In those circumstances, therefore, it is also not necessary for the Court to exercise the traditional caution which is necessary in a summary judgment application in this Court.[10] Therefore, there will be judgment for Ms Welsh on her claim for accrued annual leave and payment in lieu of notice in the sum of $21,536.62 being $16,152 for annual leave and $5,384.62 for payment in lieu of notice.

    [10] And the Court refers to the judgment of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352, a judgment which is often referred to in this Court, as well as more recent judgments to do with summary judgment by the Federal Court in George v Fletcher (Trustee) [2010] FCAFC 53 and Hill v Lang [2010] FCA 629.

14. There will also be a lump sum award of interest pursuant to the relevant provisions of the Federal Magistrates Act 1999 (Cth), bearing in mind that the unpaid moneys date from 11 June 2009 until the present date. That lump sum will be in the sum of $2,000 and there will therefore be an Order for payment of a total sum of $23,536.62 to Ms Welsh by the respondent Allblend Holdings.

15. As Mr Fatharly indicated in his submissions that penalty would not be pressed, there is no necessity to deal with the question of penalty in these proceedings.

16. With respect to costs, the matter has been brought in what is essentially a no costs jurisdiction, namely, the Fair Work Division of this Court and, therefore, costs would not ordinarily be ordered.[11]

    [11] Welsh (No. 3).

17. However, an order for costs may be made where there is an unreasonable act or omission on the part of a party. The Court in this case takes the view that the actions of Allblend Holdings, by failing to attend mediation and failing to attend today, constitute an unreasonable act or omission. The unreasonable act or omission includes the respondent failing to give any indication to either the applicant or the Court as to what its position might be or would be, and that is particularly so given the background to the matter set out above and, in particular, the seeking of leave to file, which was granted, an Amended Response and Amended Defence and Cross-Claim, granted as recently as 23 April 2010 following the Court’s decision in Welsh (No. 1).

18. At that time, every indication was given that this matter would be a hard fought contest as it had been to that point in time, and to that point in time a matter in respect of which for the reasons set out in Welsh (No. 3), no costs were able to be awarded against that background. The Court finds that the recent failure to appear is an unreasonable act both of itself and by reference to the history of the litigation, but not of course to the Court’s inability to award costs in respect of those earlier phases of the litigation. If the respondent, indeed, intended not to appear and intended not to defend the application it would have been much easier, for example, to simply consent to the filing of an order for judgment in terms like or similar to those which the Court will soon order.

19. In the circumstances, the Court is prepared to award costs to the applicant in respect of the costs of the directions hearing on 30 June 2010, the mediation including its preparation, the summary judgment application including its preparation and today’s hearing. The Court notes that s.666(3) of the WR Act provides for costs to include all legal costs and disbursements. In those circumstances, Mr Fatharly has indicated that the applicant would be content for the Court to fix costs. Having regard to the matters which the Court has alluded to and bearing in mind that the legal costs of litigation will generally exceed the quantum of costs awardable by a court by a factor of between sometimes one‑third and sometimes two-thirds, the Court proposes to order costs in the sum of $9,000, and there will be an Order to that effect: that the respondent pay the applicant’s costs in the sum of $9,000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date:  21 July 2010