Zintchenko v Maisouradze
[2019] FCCA 1724
•5 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZINTCHENKO v MAISOURADZE & ORS | [2019] FCCA 1724 |
| Catchwords: INDUSTRIAL LAW – Whether service was affected – whether previous orders should be set aside – decision of the Fair Work Commissioner – accessorial liability. |
| Legislation: Evidence Act 1995 (Cth), ss.161 and 162 |
| Applicant: | MAXIM ZINTCHENKO |
| First Respondent: | KONSTANTIN MAISOURADZE |
| Second Respondent: | AUDI ENTERPRISES PTY LTD (A.C.N 604 532 416) |
| Third Respondent: | ACN 094 365 901 PTY LTD |
| File Number: | MLG 370 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 5 June 2019 |
| Date of Last Submission: | 5 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Berrigan Doube Lawyers |
| Solicitors for the Respondents: | Peter Coper Lawyer |
ORDERS
The Orders of 30 April 2019 be set aside and in their place the Court Orders that:
(a)the First Respondent pay the Applicant the sum of $4369.05 (less deduction for taxation);
(b)the Second Respondent pay the applicant the sum of $30,810.70 (less deduction for taxation); and
(c)the Third Respondent pay the Applicant the sum of $26,441.65 (less deduction for taxation).
By 5 July 2019 the Respondents file a response and supporting affidavit(s).
By 5 August 2019, the Applicants file affidavit evidence going to the liability of the First Respondent and any application for penalties and/or general damages against all the Respondents.
By 15 August 2019 the Respondents file any affidavit(s) in reply and/or submissions.
By 26 August 2019 the Applicant file submissions.
The parties have liberty to apply.
The proceedings be listed for hearing in the Federal Circuit Court of Australia at Melbourne on 5 September 2019 at 10am, with an estimated hearing time of 1 day.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 370 of 2019
| MAXIM ZINTCHENKO |
Applicant
And
| KONSTANTIN MAISOURADZE |
First Respondent
| AUDI ENTERPRISES PTY LTD (A.C.N 604 532 416) |
Second Respondent
| ACN 094 365 901 PTY LTD |
Third Respondent
REASONS FOR JUDGMENT
(DELIVERED EXTEMPORE – REVISED FROM TRANSCRIPT)
On 30 April 2019 the Court made Orders in favour of the applicant against the First, Second and Third respondents (‘the respondents’). The respondents were not present.
That Order was made pursuant to rule 13.03C(1) of the Federal Circuit Court Rules 2001 (Cth) (‘the rules’). The Orders included an Order that the respondents pay the applicant compensation fixed in the sum of $30,810.70. Pursuant to section 547(3) of the Fair Work Act 2009 (Cth), there was also an Order that the respondents pay the applicant interest on that sum in the sum of $5,417.67.
The matter was set down for further hearing on this day, 5 June 2019. The respondents have filed an Application in a Case on 31 May 2019 seeking Orders that the Orders of 30 April 2019 be set aside save for Order 1. Order 1 was the Order requiring the respondents to pay the applicant compensation fixed in the sum of $30,810.70.
An oral application was made to the Court this morning by Mr Cooper, who appears on behalf of the respondents. Mr Cooper’s application sought to set aside Order 1 in addition to all the other Orders that were made.
The respondent has filed two affidavits in support of his application of 31 May 2019. Both were filed 31 May 2019. The first (sworn 30 May 2019), provides that he first respondent emailed the Court on 24 May 2019 raising the issue of his ill health. This email was sent to the Chambers of Judge Wilson. He was advised by those Chambers that Judge Wilson was no longer a judge of the Court.
In the second affidavit (sworn 16 May 2019), he deposes to his understanding that the proceeding had been adjourned sine die (to a date to be fixed) and that there would be a new listing before a new judge. He further deposes in this affidavit that he received an email on 1 May 2019 from the applicant which enclosed a copy of the Order of 30 April 2019.
He says that at no time did he receive from the Court or by other means a notice that the proceeding had been reallocated to a new judge, nor had a date for the hearing of any issue in the matter been listed.
The applicant has filed a response to the Application in a Case and an affidavit of Mr Ting sworn 4 June 2019 in support of the response. Mr Ting deposes to one of his colleagues sending an email to the first respondent at the email address used by him advising him of the Court date on 29 April 2019. Mr Ting further notes that another email was sent on 2 May 2019 confirming the hearing was listed on 29 April 2019. The matter was rolled over and Orders had been made by the Court on 30 April 2019.
The affidavit attaches the emails and pursuant to section 161 of the Evidence Act 1995 (Cth) (‘Evidence Act’):
(1) If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c) was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d) was received at the destination to which it appears from the document to have been sent; and
(e) if it appears from the document that the sending of the communication concluded at a particular time--was received at that destination at that time.
(2) A provision of subsection (1) does not apply if:
(a) the proceeding relates to a contract; and
(b) all the parties to the proceeding are parties to the contract; and
(c) the provision is inconsistent with a term of the contract.
Section 162 of the Evidence Act refers to letter grams and telegrams which are not relevant.
I am satisfied that the first respondent was notified of the hearing date on 29 April. The application was regularly served and the Order should not be set aside on the basis it was not served or is an irregular judgment.
Parties may set aside an Order that had been made in the absence of a party pursuant to rule 16.05(2)(a) of the rules. In general terms, the Court considers three criteria which should usually be demonstrated before a judgment Order is set aside under the rules, being:
a)there is a reasonable explanation for the party’s absence at the trial or hearing;
b)there are material arguments available to the party that might reasonably lead to the making of an Order different to that sought to be set aside; and
c)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.
In relation to (a), whilst I accept that the first respondent was served with the application, there is evidence before the Court of his medical condition. Although I am not sure to what extent it affects his capacity to deal with matters, there is evidence that he is under significant stress and that may be an explanation for his failure to appear.
In relation to whether there is a reasonable argument or material argument available which might lead to the making of a different Order, in my view, there is no argument available to the first and second respondents in relation to the sum of $4,369.05 which compromises part of Order 1. That sum represents the quantum of the Orders made by the Fair Work Commission (‘FWC’) on 13 July 2018. As those Orders were made after a hearing and there has been no application to appeal that decision, those moneys are due and payable now. The first respondent is a director of the second respondent. He gave evidence in the FWC proceeding and would have known of the need to pay the sum ordered and nothing has been put before the Court that he is not accessorily liable for the payment of the sum ordered.
In relation to the balance of the claims, they represent the findings of the Fair Work Ombudsman (‘FWO’) in relation to underpayments alleged. Whilst there has been no material put before the Court, there are arguments that may be available to the first respondent in relation to whether he is accessorily liable for all the claims made save for the claim which relates to the Order made by the FWC.
There has been no material put before the Court which would suggest there is any material argument available to the corporate respondents in relation to the claims that are made in relation to the under payments raised by the FWO.
I am not disposed to set aside the Orders as against the second respondent.
In respect of the first respondent, I will set aside the Orders save those Orders in the sums of $4,369.05. The balance of the claims as against the first respondent will be set aside and it is a matter for him to put evidence and material which goes to the question of his personal liability in relation to the FWO claims.
The claims in respect of the FWC Orders remain due and payable by both the first and second respondents. The third respondent was not a party to the FWC proceeding and therefore has no liability in respect of that claim. The second respondent is liable in the sum of $30,910.65, the third respondent is liable in the sum of $26,441.65.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 21 June 2019
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