Federal Court of Australia

Wear v Montere E-College Pty Ltd [2025] FCA 434

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant compensation of $133,800 plus interest of $12,466.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant, Samone Wear, was employed by the respondent (Montere) between 28 August 2023 and 8 February 2024.

2    Montere traded under the registered business name of “Royal Gateway” and provided accredited higher education and training courses. The applicant was employed on a full-time basis in the role of General Manager.

3    The applicant is self-represented in the proceeding. She alleges that her employment with Montere was unlawfully terminated, in contravention of s 352 of the Fair Work Act 2009 (Cth) (the FWA). She makes a claim for compensation including loss of wages.

4    Montere has not filed any notice of address for service and has not participated in the proceeding by appearing at case management hearings. Accordingly, the applicant now seeks judgment entered by default.

Background

5    On 21 May 2024, the applicant filed her originating application. The proceeding was listed for a case management hearing before Registrar Buckingham on 15 October 2024.

6    On 9 June 2024, the applicant purported to serve Montere by sending an email to “mantek04@gmail.com”, which she deposes was the email address of her employer. The email attached a copy of the sealed originating application.

7    Montere did not appear at the case management hearing on 15 October 2024. Registrar Buckingham made orders adjourning the case management hearing to 8 November 2024 and requiring the applicant to serve the order by express post to Montere’s registered office at 1131 Mount Cotton Road, Burbank, Queensland, 4156.

8    On 6 November 2024, the applicant filed an affidavit of service. The documents posted by the applicant to Montere’s registered office included the order, the originating application, a statement of claim and a Section 368 Certificate from the Fair Work Commission.

9    On 8 November 2024, Montere again failed to appear at the case management hearing. Registrar Buckingham made orders adjourning the case management hearing to 21 November 2024 and requiring the applicant to serve the order by express post to Montere’s registered office.

10    The applicant filed two further affidavits of service on 20 November 2024 and 11 December 2024, which indicate that she served the order and again served the originating application and statement of claim on Montere by personally delivering the documents to a secure letterbox at its registered office and then by express post to its registered office.

11    Montere did not appear at the case management hearing listed for 21 November 2024 and Registrar Buckingham adjourned the case management hearing to a date to be fixed. The case management hearing was subsequently listed before me for 11 December 2024.

12    On 11 December 2024, at a case management hearing that was only attended by the applicant, I made the following orders:

1.    By 4.30 pm (AEST) on 27 January 2025, the applicant file and serve upon the respondent:

(a)    an affidavit setting out the factual allegations she makes against the respondent and identifying the provisions of the Fair Work Act 2009 (Cth) she alleges have been contravened and on what basis she alleges they have been contravened; and

(b)    an application for default judgment.

2.    The application for default judgment be set down for hearing at 10.15 am (AEST) on 12 February 2025.

13    The applicant filed two further affidavits on 25 January 2025 and 11 February 2025 which deposed to service on Montere of the same material as the previous affidavits, as well as a further affidavit intended to comply with Order 1(a) of my orders of 11 December 2024, the applicant’s employment contract, email correspondence between the applicant and her employer, medical certificates and a letter of termination. No specific application for default judgment was filed.

14    Montere did not appear at the hearing on 12 February 2025. The applicant made oral submissions that were taken as an application for default judgment against Montere. I am satisfied that Montere had adequate notice of the application, having been served with the order of 11 December 2024. I consider it appropriate to dispense with any service of the application under r 17.04(c) of the Rules.

Principles

15    Rule 5.23(2) of the Federal Court Rules 2011 (Cth) (the Rules) provides:

(2)    If a respondent is in default, an applicant may apply to the Court for:

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

(b)    if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

(i)    the debt or liquidated damages; and

(ii)    if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

(c)    if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d)    an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e)    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 specified in the order.

16    Rule 5.22 provides:

5.22    When a party is in default

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

17    The principles that apply to a decision to make orders under r 5.23 of the Rules include the following:

(a)    The discretion to grant default judgment is broad and unconfined: Welsh v Digilin Pty Ltd (2008) 250 ALR 13 at [12]-[14]; Ross v Cotter [2015] FCA 310 at [20].

(b)    The discretion is to be exercised with caution: Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 (Speedo) at [20]-[21].

(c)    In respect of r 5.23(2)(c), it is unnecessary to prove each element of the alleged wrong, but the Court must be satisfied that each element is properly and discretely pleaded: Macquarie Bank Ltd v Seagle (2005) 146 FCR 400 at [24]; Speedo at [24].

(d)    It is not a requirement that the applicant prove the claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at [42].

(e)    If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18]-[19]; Speedo at [23]; Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 (Chamberlain) at [14].

(f)    Further evidence may be adduced, provided that it is not evidence that would alter the pleaded case: Chamberlain at [14].

Consideration

18    Montere has been properly served with the originating application, statement of claim and supporting affidavits and has had an adequate opportunity to defend the claim.

19    Montere has failed to file a notice of intention to defend as required under r 11.02 of the Rules and has failed to attend any case management hearings. It has failed to defend the proceeding with due diligence. I am satisfied that Montere is in default according to r 5.22 of the Rules and that the preconditions for the making of an application for default judgment under r 5.23(2) have been established.

20    As the applicant is self-represented, her statement of claim and affidavits are not altogether easy to understand. However, the substance of her allegations are ascertainable. I will provide a brief summary of what I understand to be the applicant’s principal claim against Montere.

21    The applicant alleges that she was dismissed in contravention of s 352 of the FWA, which provides that:

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

22    Regulation 3.01(2) of the Fair Work Regulations 2009 (Cth) (the FW Regulations) provides relevantly that:

(2)    A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

(a)    24 hours after the commencement of the absence; or

(b)    such longer period as is reasonable in the circumstances.

…

23    In her statement of claim the applicant alleges that:

(a)    she was unwell due to an ongoing medical condition and took leave between 2 February and 9 February 2024;

(b)    she provided Montere with medical certificates via email to “Royal Gateway Administration” on 2 February, 7 February and 9 February 2024;

(c)    she received no response from her employer;

(d)    her employment was terminated on 8 February 2024 by a letter containing a “Royal Gateway Higher Education” letterhead and signed by Sheran Ferando, Chief Operating Officer - Global;

(e)    the termination was because she was temporarily absent from work because of illness or injury of a kind prescribed by the FW Regulations; and

(f)    she has subsequently been unable to find employment.

24    The statement of claim includes allegations of other conduct by Montere contravening the FWA, including making threats of dismissal and coercion. I find it unnecessary to consider these additional allegations for the purpose of determining the application for judgment by default.

25    I am satisfied that the applicant has adequately pleaded that Montere contravened s 352 of the FWA and that she is entitled to the relief sought by her. There are no discretionary reasons to refuse to grant default judgment.

26    The applicant’s entitlements under her employment contract with Montere include annual wages of $120,000 and superannuation at the minimum rate of 11.5% of the base salary, being $13,800 annually.

Conclusion

27    I am satisfied that judgment should be entered by an order that Montere pay the applicant a sum of $133,800, being wages and superannuation for one year.

28    I will award interest on the amount of $120,000 from 9 February 2024 to 8 May 2025 at the rate identified in paragraph 2.2 of the Court’s “Interest on judgments” practice note (GPN-INT). The rate is 8.35%, producing interest of $12,466.

Associate:    

Dated:    8 May 2025