WILLIAMS v LG Staff Pty Ltd
[2020] FCCA 1000
•7 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILLIAMS v LG STAFF PTY LTD | [2020] FCCA 1000 |
| Catchwords: INDUSTRIAL LAW – Application in a case – respondent failed to appear – application in a case to set aside orders pursuant to Rule 16.05(2)(a) – explanation for failure to appear – whether reasonable explanation – insufficient evidence – prejudice – application in a case dismissed – consent to order for payment being extended. |
| Legislation: Fair Work Act 2009 (Cth), ss.545, 548 Federal Circuit Court Act 1999 (Cth), ss.3, 42 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 13.03, 16.05 |
| Cases cited: Clifford & Mountford [2006] FMCAfam 450 Wint v Medimobile Pty Ltd [2016] FCCA 102 McShane v Image Bollads Pty Ltd [2011] FMCA 215 |
| Applicant: | JAYE WILLIAMS |
| Respondent: | LG STAFF PTY LTD |
| File Number: | MLG 2457 of 2019 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 7 April 2020 |
| Date of Last Submission: | 7 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2020 |
REPRESENTATION
| Applicant: | In Person |
| Respondent: | Mr Fisher – Director |
ORDERS
Pursuant to Rule 16.05(2)(f) of Federal Circuit Court Rules 2001 order 4 of the orders made on 12 March 2020 be varied as follows:
“4. Pursuant to s.545 of the Fair Work Act 2009 (Cth) the respondent pay the applicant the sum of $8,925.00 gross by no later than 30 June 2020.”
The application in a case filed 1 April 2020 be otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2457 of 2019
| JAYE WILLIAMS |
Applicant
And
| LG STAFF PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
On 12 March 2020, the following orders were made in these proceedings:
“1.The name of the respondent to the application filed on 30 July 2019 be amended to LG Staff Pty Ltd (ACN 165 878 651).
2. The applicant have leave to proceed undefended pursuant to Rule 13.03A(2)(a)(b)(ii)(vii), 13.03B(2)(d) and 13.03C(1)(e) of the Federal Circuit Court Rules 2001.
THE COURT DECLARES THAT:
3. The respondent contravened the Building and Construction General On-site Award 2010 and the Fair Work Act 2009 (Cth).
THE COURT ORDERS THAT:
4. Pursuant to s.545 of the Fair Work Act 2009 (Cth) the respondent pay the applicant the sum of $8,925.00 gross within 14 days of service of this order on the respondent.
5. The applicant serve the respondent with a copy of this order within 14 days for this date.
THE COURT NOTES:
A Rule 16.05.
Those orders were made in the context of proceedings that had been commenced by Jaye Williams (“the applicant”). The applicant had filed a small claims application under the Fair Work Act 2009 (Cth) (“the FW Act”) on 30 July 2019. The applicant had named Barry Williams as the respondent (“the respondent”).
The application was made returnable on 12 March 2020. For reasons given ex tempore that day the orders referred to earlier were made. In summary (as well as correctly recording the applicant’s former employer as the respondent) given the material before the Court the applicant was given leave to proceed undefended. A declaration was made that the respondent had contravened the applicable modern award and the FW Act, and an order was made pursuant to s.545 of the FW Act that the respondent pay the applicant the sum of $8,925.00 within 14 days of service of the order.
Application in a case
On 1 April 2020, the respondent filed an application in a case. The orders sought in the application in a case, signed by Mr Fisher as the director of the respondent, were as follows:
“1.The applicant would like hearing to be re-heard for the purposes of:
(a) Having the order said aside; or
(b)Amount of money that was ordered against applicant to be reduced to fair and reasonable amount.
2. In the alternative, formally defer payment of the amount of money awarded against the applicant for a period of 90 days.”
The application in a case was supported by an affidavit of Mr Fisher dated 31 March 2020. The affidavit filed by Mr Fisher on behalf of the respondent was as follows:
“1.Re: to have orders set aside or that amount of money ordered to pay being reduced. Refer to Annexure 1.
2.Have payment of order deferred for 90 days. Refer to letter 2.”
Attached to Mr Fisher’s affidavit were two annexures. Annexure 1 was a series of tables which were said to be the hours worked by the applicant during the course of his employment. Annexure 2 was a letter dated 29 March 2020 signed by Mr Fisher. In summary, the letter requested approval to defer the payment ordered on 12 March 2020 for a period of 90 days until 30 June 2020. The reasons set out in the letter included the impact of the COVID-19 virus which, it was said, had made things most difficult for the respondent’s business.
Upon the respondent filing the application in a case, the applicant and the respondent were advised the matter would be heard by telephone today. Email communication to both parties was sent to that effect. At the hearing today, the respondent was represented by Mr Fisher. The applicant appeared in person. The respondent confirmed that it sought the orders in the application in a case, and the applicant confirmed that he opposed the orders sought by the respondent to the extent that the respondent sought to set aside the orders of 12 March 2020.
Approach to application in a case
The decision in Clifford & Mountford [2006] FMCAfam 450, sets out the principles to be applied in relation to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), as follows:
“34.From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a. The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b. There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i. a reasonable explanation for the applicant's absence at the trial or hearing;
ii. material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii. no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c. Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i. Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii. Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii. the conduct of the applicant since the judgment or order sought to be set aside was made.”
In Wint v Medimobile Pty Ltd [2016] FCCA 102, His Honour Judge Jarrett set out at paragraphs [5]–[7] a helpful indication of how the Court should approach such matters essentially in the same terms as set out in the above mentioned decision.
Consideration
On 30 July 2019, the applicant had filed a small claims application supported by a form 5. The application had been given a court date of 12 March 2020. The applicant’s small claims application was governed by s.548 of the FW Act, which states:
“(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2) In small claims proceedings, the court may not award more than:
(a) $20,000; or
(b) if a higher amount is prescribed by the regulations--that higher amount.
Procedure
(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
(4)At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
…”
In McShane v Image Bollards Pty Ltd[1], Lucev FM (as His Honour then was) said this process:
“Section 548(3) of the FW Act provides as follows:
5. Procedure(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.[1] McShane v Image Bollads Pty Ltd [2011] FMCA 215
6. Rule 45.11(2) of the FMC Rules provides as follows:
(2) The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.
7. Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force. The necessity to prove the claim was pointed out with particularity to the parties at the directions hearing on 18 March 2011. That particularity was necessary because Mr McShane had described the hearing, which the Court had just ordered be listed for 31 March 2011, as the “next get-together” (or words to that effect). The Court was at pains to point out that it was in fact a hearing at which the claim would need to be proved. Thus, Mr McShane was on notice that he would need to attend the hearing and prove his claim.” [FOOTNOTES OMITTED].
Any application of a technical kind such as this requires the Court to consider the practical effect, and to do so in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court Act 1999 (Cth) (“the FCC Act”),[2] and the Federal Circuit Court Rules (“the FCC Rules”), as prescribed by the objects of the FCC Act,[3] and the objects of the FCC Rules[4], provide for the Court to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b)which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)which uses streamlined procedures; and
(e)that avoids undue delay, expense and technicality.[5]
[2] “FCC Act”.
[3] FCC Act, ss.3 and 42.
[4] FCC Rules, r.1.03
[5] FCC Act, s.3; FCC Rules, r.1.03
The Court must also take into account the following principles when determining whether or not to grant an application of a technical kind, such as this. Those are:
(a)the doing of justice between the parties, which remains a paramount consideration, to achieve a just resolution which must have regard to any relevant legislative purpose or object;
(b)modern principles of case management;
(c)the avoidance of undue delay; and
(d)the wastage of public resources.[6]
[6] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para. 30 French CJ and parags.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman V Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
The application had made allegations of contraventions by the respondent of the FW Act. In his application, the applicant alleged that he had worked for the respondent between 2015 and 2019 and, following a dispute over monies he alleged were owed to him, he resigned his employment and pursued money he said was owed to him by the respondent.
On 12 March 2020, there was no appearance by or on behalf of the respondent. The applicant had filed an affidavit of service. In the absence of the respondent, and as there was no explanation for their absence, no material had been filed by or on its behalf, and there had been no application or contact made with the Court on behalf of the respondent, the applicant was granted to leave to proceed undefended. The applicant gave evidence, and adopted as evidence in support of the orders he sought in his small claims application, the detail contained in the material he had filed.
On the basis of the applicant’s evidence before the Court on 12 March 2020, the Court was able to make the declarations and the orders consequential upon that pursuant to s.545 of the FW Act. At the hearing of the application in a case today, the respondent, through its director Mr Fisher, confirmed there was no other material in support of the application in a case other than that contained in the affidavit he filed on 2 April 2020.
As was pointed out to the respondent, there was no evidence from the respondent that it was not aware of the hearing on 12 March 2020, and no explanation from the respondent for its absence or its failure to file a response, or its failure to file an application for an adjournment either on or prior to 12 March 2020. The respondent understood that the absence of an explanation for its failure to appear was deficient and unsatisfactory. The respondent was advised that it was a significant matter telling against there being a finding of a reasonable explanation for the absence of the respondent at the hearing, and whilst there may be arguments available to the respondent, the applicant would be prejudiced if the orders sought in the application in a case were made.
The respondent was advised that, having considered all the factors relevant to the exercise of discretion, the material upon which the respondent relied, and the submissions made on its behalf, the Court could not be satisfied that the orders of 12 March 2020 should be set aside pursuant to r.16.05(2)(a) of the FCC Rules. However, the applicant confirmed he would consent, and the respondent did also, to the order sought in the application in a case in the alternative. The order the parties told the Court they agreed to provided for the amount ordered on 12 March 2020 to not become payable in full until 30 June 2020.
Rule 16.05(2)(f) of the FCC Rules provides a judgment or order may be varied or set aside after it has been entered if the party in whose favour it was made consents. The applicant confirmed that in the circumstances (particularly having regard to the impact of the COVID-19 pandemic on businesses across Australia) he would agree to order 4 of the orders of 12 March 2020 being varied as follows:
“4.Pursuant to section 545 of the Fair Work Act 2009, the respondent pay the applicant the sum of $8,925.00 gross by no later than 30 June 2020.”
For the reasons set out above, and as the Court was not satisfied that the orders of 12 March 2020 should be said aside under r.16.05(2)(a) of the FCCA Rules but the applicant agreed to order 4 of the orders of 12 March 2020 being varied, an order to that effect was made and the application in a case filed 1 April 2020 was otherwise dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 29 April 2020
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