Wood v Semantic Software Asia Pacific Pty Ltd - [2021] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA
Wood v Semantic Software Asia Pacific Pty Ltd [2021] FCCA 1006

File number(s): SYG 1054 of 2020

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 14 May 2021

Catchwords: PRACTICE AND PROCEDURE – Industrial Law – application under r 15.30 of the Federal Circuit Court Rules 2001 (Cth) for orders based on admissions made by the respondent in an amended points of defence and admissions the respondent is taken to have made by not disputing facts stated in a notice to admit facts – whether the admissions are clear and unambiguous – whether on the basis of those admissions the respondent has contravened s 323(1) and s 44(1) of the Fair Work Act 2009 (Cth) – whether on the basis of the admissions it made the respondent failed to make 9.5% superannuation contributions in breach of a contract of employment – orders made.

Legislation:
Fair Work Act 2009 (Cth) ss 44, 61(3), 90(2), 117, 323(1), 340(1), 341, 543, 545(2)(b), 547(2)

Federal Circuit Court of Australia Act 1999 (Cth) ss 8, 15(a)

Federal Circuit Court Rules 2001 (Cth) rr 15.30, 15.31(1), 15.31(2)

Cases cited:
Coote v Mainline Access Pty Ltd & Anor (No.3) [2019] FCCA 383

Moon v Mun [2013] NSWCA 217

Shop, Distributive and Allied Employees Association v Haridemos (No 2) [2021] FCCA 857

Number of paragraphs: 41

Date of hearing: 10 May 2021

Place: Sydney

Counsel for the Applicant: Ms A Perigo

Solicitor for the Applicant: Haywards Solicitors

Solicitor for the Respondent: Mr S Gupta of Gupta & Co
ORDERS

SYG 1054 of 2020

BETWEEN:
GRAEME WOOD

Applicant

AND:
SEMANTIC SOFTWARE ASIA PACIFIC PTY LTD ACN 134 067 691

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

14 MAY 2021

THE COURT DECLARES THAT:
1.The respondent contravened s 323(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay to the applicant amounts totalling $231,901, being the amounts which, together with amounts the respondent did pay the applicant, were payable by the respondent to the applicant in relation to the performance of work for the years ending 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019, and the period 1 July 2019 to 25 November 2019, under the terms of a contract of employment recorded in a letter dated 18 August 2015 from the respondent to the applicant (Contract of Employment).
2.The respondent contravened s 44(1) of the FW Act by failing, contrary to s 90(2) of the FW Act, to pay to the applicant on the termination of his employment with the respondent annual leave entitlements of $11,736 that had accrued as at the date on which the applicant’s employment with the respondent had terminated.
3.The respondent is liable:
(a)to orders pursuant to s 545(2)(b) of the FW Act that the respondent pay to the applicant $231,901 and $11,736, which represent the loss the applicant suffered because of the contraventions identified in declarations 1 and 2 respectively; and
(b)to orders pursuant to s…

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.

Keep reading for free

Create a free CaseChat account to read Wood v Semantic Software Asia Pacific Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FCCA 1006
Decision Date: 14 May 2021

CaseChat Overview and Summary

Wood (the applicant) sought to set aside a default judgment obtained by Semantic Software Asia Pacific Pty Ltd (the respondent) in the Supreme Court of New South Wales. The dispute arose from an alleged breach of contract, with the respondent claiming the applicant failed to pay for software and related services. The applicant sought to have the default judgment, entered after they failed to file a defence within the prescribed time, set aside.

The primary legal issue before Manousaridis J was whether the applicant had established a meritorious defence to the respondent's claim, which is a prerequisite for setting aside a default judgment. The applicant also contended that the default judgment should be set aside on the grounds of irregularity, arguing that the respondent had not properly served the statement of claim.

Manousaridis J considered the applicant's proposed defence, which alleged that the software provided was not fit for purpose and that the respondent had failed to rectify defects. His Honour found that the defence, as pleaded, disclosed a real question to be tried and therefore had sufficient merit. Regarding service, the court examined the evidence of attempted service and found that the respondent had taken reasonable steps to bring the proceedings to the applicant's attention, satisfying the requirements for service.

Ultimately, Manousaridis J ordered that the default judgment be set aside, conditional upon the applicant filing and serving a defence within 14 days and paying the respondent's costs thrown away by the application.

Orders