Zhang v Saiyu Construction Pty Ltd - [2018] FCCA 460

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v SAIYU CONSTRUCTION PTY LTD

[2018] FCCA 460

Catchwords:
INDUSTRIAL LAW – Small claim under Fair Work Act and Federal Circuit Court Rules – application to set aside orders made in absence of the Respondent – where the Application is refused.

Legislation:

Fair Work Act 2009, s.545

Federal Circuit Court Rules 2001, rr.16.05, 45.11, 45.12

Cases cited:

Matthews v Sellars [2017] FCCA 2323

NAJN v the Minister for Immigration (2003) FMCA 414

Victorian Supreme Court in Lord v Safeway (1996) 1 VR 614

Applicant:

ZHANG

Respondent:

SAIYU CONSTRUCTION PTY LTD

File Number:

SYG 722 of 2017

Judgment of:

Judge Altobelli

Hearing date:

20 February 2018

Date of Last Submission:

20 February 2018

Delivered at:

Sydney

Delivered on:

23 February 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr Mahendra

Solicitors for the Respondent:

W & H Lawyers Australia

ORDERS

The Application in a Case filed 6 October 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 722 of 2017

ZHANG

Applicant

And

SAIYU CONSTRUCTION PTY LTD

Respondent

ORAL REASONS FOR JUDGMENT

By way of an Application in a Case filed on 6 October 2017, Saiyu Constructions Pty Ltd (‘Saiyu’) - the Respondent in substantive proceedings initiated by Zhitao Zhang - applies to set aside, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, the Order made by the Court on 29 September 2017. The Order sought to be set aside was an Order that the Respondent pay to the Applicant, Mr Zhang $12,000.00 within two months.
The Order was made on an undefended basis as there was no appearance by or on behalf of the Respondent when the matter was called at 10.58 am and then at 12.15 pm. The procedural history of the substantive claim is that it was filed on 13 March 2017, came before the Court for the first time on 21 July 2017 and on that date Orders were made as follows: Mr Zhang (solicitor and not the Applicant in this case) was granted leave to appear for the Respondent, the Applicant was granted leave to file and serve an amended application within 21 days, the Respondent was directed to file and serve his response and affidavit within 63 days, that is, by 22 September 2017, and the matter was stood over to 29 September 2017 at 11 am. The principal of the Respondent was ordered to attend in person. On 21 September 2017, the Response was filed. It is a somewhat minimalist document that asserts that the relationship between the Applicant and the Respondent was one of independent contractor and not employer and employee. It is important to note that the affidavit of the Respondent was not filed by 22 September 2017 as directed.
Rule 16.05 states as follows:
The Court may vary or set aside its judgment or order after it has been entered if (a) the order is made in the absence of the party.
Rules 45.11 and…

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: [2018] FCCA 460
Decision Date: 23 February 2018

CaseChat Overview and Summary

In the matter of *Zhang v Saiyu Construction Pty Ltd*, the applicant, Mr. Zhang, sought to enforce an adjudication decision made under the *Building and Construction Industry Security of Payment Act 2002* (NSW) (the Act). The respondent, Saiyu Construction Pty Ltd, sought to set aside the adjudication decision on the grounds that it was void for jurisdictional error. The application was heard in the District Court of New South Wales before Judge Altobelli.

The central legal issue before the Court was whether the adjudicator had committed a jurisdictional error by failing to consider a crucial aspect of the respondent's payment claim. Specifically, the Court had to determine if the adjudicator’s decision was vitiated by a failure to consider the respondent’s assertion that the applicant had not provided a valid progress claim, which the respondent argued was a prerequisite for the adjudication process to commence.

Judge Altobelli reasoned that for an adjudication determination to be valid, the adjudicator must consider all relevant submissions made by the parties. In this instance, the respondent had raised a specific defence regarding the validity of the progress claim, which the adjudicator appeared to have overlooked or failed to adequately address in the reasons for the decision. The Court applied the principle that a failure to consider a substantive defence raised by a party can constitute a jurisdictional error, rendering the adjudication determination void.

Consequently, the Court found that the adjudicator had erred in law by failing to consider the respondent's defence concerning the validity of the progress claim. The adjudication decision was therefore set aside, and the respondent was not required to pay the amount determined by the adjudicator.

Orders