Siedlanowski v The Chocolate Barn Pty Ltd

[2012] FMCA 765

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIEDLANOWSKI v THE CHOCOLATE BARN PTY LTD & ANOR [2012] FMCA 765

INDUSTRIAL LAW – Small claims – no appearance by or for the respondents – application made.

Fair Work Act 1999, s.548
Federal Magistrates Court Act 1999, s.17A
Federal Magistrates Court Rules 2001, rr.4.03, 13.03B, 16.05

Black v Young Republic & Anor [2012] FMCA 729

Applicant: JADE SIEDLANOWSKI

First Respondent: THE CHOCOLATE BARN PTY LTD
ACN 135 432 165

Second Respondent: ABDUL-RAHMAN ABU-MAHMOUD

File Number: SYG 1283 of 2012

Judgment of: Nicholls FM

Hearing date: 22 August 2012

Date of Last Submission: 22 August 2012

Delivered at: Sydney

Delivered on: 30 August 2012

REPRESENTATION

The Applicant: In Person

The Respondents: No appearance

ORDERS

1. The applicant is granted leave to amend the application, made on 12 June 2012, such that “The Chocolate Barn Pty Ltd – ACN 135 432 165” is named as the first respondent and Mr Abdul-Rahman Abu-Mahmoud is named as the second respondent.

2. The first and second respondents pay the applicant the sum of $1,230.54 less tax within 28 days of the date on which these orders are entered.

3. The first and second respondent pay the applicant’s costs set in the sum of $150.00 within 28 days of the date on which these orders are entered.

4. The applicant notify the first and second respondents, in writing and within 21 days of the date on which these orders are entered, at their registered business address and residential address respectively, of the making of these orders and Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1283 of 2012

JADE SIEDLANOWSKI

Applicant

And

THE CHOCOLATE BARN PTY LTD - ACN 135 432 165

First Respondent

ABDUL-RAHMAN ABU-MAHMOUD

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Jade Siedlanowski (“the applicant”), made on 12 June 2012 and amended in Court on 22 August 2012, pursuant to the Fair Work Act 2009 (Cth) (“FWA”). The applicant elected to make that application under the small claims procedure, as provided for in s.548 of the Act.

2. The applicant alleged that her former employer, The Chocolate Barn Pty Ltd (“the first respondent”), and the director of that business,

   
   

   Abdul-Rahman Abu-Mahmoud (“the second respondent”), breached the National Employment Standard by failing to provide her with written notice of the termination of her employment. Further, that the respondents breached the Restaurant Industry Award 2010 by, variously, failing to pay to the applicant her wage, a tool allowance, overtime, and penalty rates.

3. As remedy for the above breaches, the applicant sought payment of $1,230.54. In addition, before the Court at the final hearing, the applicant sought to amend her points of claim (referred to as the “Form 5”) to seek that the respondents also pay the costs incurred by the applicant in the initiation of these proceedings. That was said to be a filing fee, paid on 12 June 2012, in the sum of $150.

Before the Court

1. The matter was first before the Court on 1 August 2012. On that occasion, the applicant appeared in person and leave was granted for her grandmother (Ms Jessie Imoag) to assist her at the bar table. There was no appearance by, or for, the respondents [I note that while Mr Abu-Mahmoud was not named as the second respondent until the hearing, he was named in the originating application to the Court. It was unclear in that originating application whether he was a respondent or not – see further below in relation to this ambiguity.]

2. At that time, the applicant sought leave to file in Court an affidavit of service, made by her on 14 June 2012. Leave was granted for that purpose. Further, the applicant sought to tender a “Registered Post – Lodgement Receipt”, dated 14 June 2012, to which was attached a tax invoice from Australia Post (subsequently admitted and marked “Applicant’s Exhibit 1” – “AE1(1.8.12)”).

3. The affidavit of service provided that a copy of the application to the Court, as well as the “small claim under the fair work act” (which I understood to be the Form 5), were served on the first respondent by postage of those documents by pre-paid post. When read in conjunction with AE1(1.8.12), it appeared that that pre-paid post package had been sent to the first respondent and marked to the attention of the second respondent.

4. In the circumstances, I was satisfied that the respondents were on notice of the matter and its listing for a first Court date. Despite having been put on notice of the matter and the details of its listing, neither of the respondents, nor anyone on their behalf, had appeared. Further nothing had been heard from the respondents to indicate that they had had any difficulty in arranging someone to attend on their behalf. Nor had any request for an adjournment been received. The matter was set down for further directions on 22 August 2012 at 2pm.

5. At that time, the applicant, again, appeared in person and leave was, again, granted for her to be assisted by her grandmother. There was no appearance by or for the respondents. Nor had anything been heard from them to indicate any difficulty in attending.

6. The applicant sought to tender three documents:

   1)A “Registered Post – Lodgement Receipt”, dated 7 August 2012, to which was attached a tax-invoice from Australia Post. That document stated that a parcel had been sent by the applicant to the first respondent, marked to the attention of the second respondent. [That document was subsequently admitted and marked “Applicant’s Exhibit 1” – “AE1(22.8.12)”].

   2)A letter from the applicant, dated 6 August 2012, addressed to the second respondent. That letter noted that the matter had been adjourned to 22 August 2012 at 2pm and that the orders made by the Court at the first Court date were enclosed. Further the applicant indicated her intention to attend on the next occasion that the matter was before the Court and, in the event that the respondents did not attend, she would ask the Court to proceed in their absence. [That document was subsequent admitted and marked “Applicant’s Exhibit 2” – “AE2”.]

   3)An “ASIC” search of “The Chocolate Barn Pty Ltd”. That document indicated that the second respondent was the director of that company and that he was the sole shareholder. [That document was subsequently admitted and marked “Applicant’s Exhibit 3” – “AE3”.]

The Respondents

1. The application to the Court, made on 12 June 2012, provided that the respondent was “The Chocolate Barn Pty Ltd – ACN 135432165, the individual being Abdul-Rahman Abu-Mahmoud”.

2. The Chocolate Barn Pty Ltd, as a company, is a separate legal entity. In those circumstances the identification of the respondent in the originating application to the Court was deficient. The applicant applied to the Court to amend her application so that the respondents were clearly and accurately identified. That is, that the Chocolate Barn Pty Ltd – ACN 135 432 165, be named as the first respondent and Abdul-Rahman Abu-Mahmoud be named as the second respondent.

3. Section 548(4) of the FWA provides that:

   “At any stage of the small claims proceedings, the court many amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.”

4. In light of s.548(4), and in the circumstances of this case, it was appropriate that the respondents to the application be amended. First, it was necessary that the application clearly identify the two respondents. That is the company, as a separate legal entity, and

   
   

   Mr Abu-Mahmoud, as an individual.

5. Second, and in light of AE1(1.8.12), I was satisfied that

   
   

   Mr Abu-Mahmoud was on notice of the proceedings before the Court, as well as the nature of the proceedings. That is, that that the application to the Court and the Form 5 had been sent to the Chocolate Barn Pty Ltd and marked to the attention of Mr Abu-Mahmoud. Further, and in light of AE1(22.8.12) and AE2, I was satisfied that Mr Abu-Mahmoud was on notice of the matter’s listing on 22 August 2012 and that, in the event that he did not appear on that occasion, the applicant would seek to have her application granted.

6. Further, AE3 made clear that Mr Abu-Mahmoud was the director of the Chocolate Barn Pty Ltd and, in light of that, I was satisfied that he was an appropriate person to be named as a respondent.

7. In those circumstances, the application was amended so that Chocolate Barn Pty Ltd – ACN 135 432 165, was named as the first respondent and Abdul-Rahman Abu-Mahmoud was named as the second respondent.

The Application to the Court

1. Given the respondents failure to appear, the applicant sought that the Court proceed to grant the application and make the orders sought by her.

2. Under the Federal Magistrates Court Act 1999 (Cth) (“FMC Act”) the Court is able to proceed to summary judgment in certain circumstance. Section 17A of the FMC Act relevantly provides that:

   “Summary judgment

   (1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a) the first party is prosecuting the proceeding or that part of the proceeding; and

   (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

   …

   (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a) hopeless; or bound to fail;

   (b) for it to have no reasonable prospect of success.

   (4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.”

3. Further, the Federal Magistrates Court Rules 2001 (Cth) (“the FMC Rules”) provide that, on the default of a party, the Court can enter judgment against that party. Relevantly, r.13.03B provides that:

   “Orders on default

   …

   (2) If a respondent is in default, the Court may:

   (a) order that a step in the proceeding be taken within the time limited in the order; or

   (b) if the claim against the respondent is for a debt or liquidated damages -- grant leave to the applicant to enter judgment against the respondent for:

   (i) the debt or liquidated damages; and

   (ii) if appropriate -- costs; or

   (c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings -- give judgment against the respondent for the relief that:

   (i) the applicant appears entitled to on the statement of claim; and

   (ii) the Court is satisfied it has power to grant; or

   (d) give judgment or make any other order against the respondent; or

   (i) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

   …

   (6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.”

4. In light of AE1(1.8.12), I was satisfied that the respondents were on notice of the application to the Court and the nature of that application. Further, given the matters set out in AE1(1.8.12), AE1(22.8.12) and AE2, I was satisfied that the respondents had been given reasonable notice of both occasions that the matter was before the Court. Further, they had been put on notice that, in the event of their non-appearance at the matter’s listing on 22 August 2012, the applicant intended to apply to the Court for final orders.

5. Despite being on notice of those matters, there had been no appearance by, or for, either of the respondents. Nothing had been heard from them to indicate that there was any difficulty in their attending, or arranging someone to attend on their behalf. Nor was any adjournment application made. Even further, despite being required to file a formal Response within 14 days of service of the application (r.4.03 of the FMC Rules), no Response has been filed by the respondents.

6. In the context of the respondents’ complete unwillingness, despite reasonable notice, to engage in the Court proceedings, it was appropriate that the application to the Court be finalised. Further, in light of r.13.03B(2)(b) of the FMC Rules and s.17A(1) of the FMC Act, it was appropriate that I proceed to judgment and that that be in the applicant’s favour.

7. The applicant provided sworn oral evidence on that occasion in support of the matters set out in her Form 5. Further, that the calculation of the remedy she sought was, to the best of her knowledge, true and correct. In light of that uncontested evidence, and in the circumstances set out above, it was appropriate that I make the orders sought by the applicant.

8. Further, the applicant sought that the respondents be ordered to pay the costs of her initiating the proceedings. In the circumstances, it was appropriate that such an order be made.

9. Finally, in addition to the orders set out above and given that those orders had been entered into because of the respondent’s non-attendance and unwillingness to engage in the proceedings, I make an order that the Applicant, within 21 days of the orders being entered, notify the respondents of the orders and the existence of r.16.05 of the FMC Rules. Rule 16.05 provides that:

   “(1) The Court may vary or set aside its judgment or order before it has been entered.

   (2) 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 a party; or

   (b) the order is obtained by fraud; or

   (c) the order is interlocutory; or

   (d) the order is an injunction or for the appointment of a receiver; or

   (e) the order does not reflect the intention of the Court; or

   (f) the party in whose favour the order is made consents.

   (3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.”

Conclusion

1. In circumstances where the respondents have been given reasonable notice of the matter before the Court and have failed to engage at all in the proceedings, it is appropriate, pursuant to the Act and Rules of this Court, that judgment be entered for the applicant and that the respondents be ordered to pay the applicant’s costs incidental to the proceedings. I will make orders accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  30 August 2012