Clyne v Ituau-Puletua [2025] FedCFamC2G 1355

Nature and scope of r 13.05(2)(c) of the GFL Rules

1. Rules 13.04 and 13.05(2)(c) of the GFL Rules were adapted from, and are substantially similar to, the rules contained in O 35A of the now repealed Federal Court Rules 1979 (Cth) (old FC Rules); and r 13.05(2)(c) of the GFL Rules is almost identical to O 35A r 3(2).
2. Before O 35A was introduced into the old FC Rules in 2004, the Federal Court could enter default judgment against a respondent only if an application for default judgment was supported by admissible evidence that proved the applicant's claims for relief. In Australian Securities Commission v MacLeod & Ors Drummond J described this limitation in the old FC Rules by reference to the rules of other courts which had as their source the rules of court of the English High Court after the passing of the Judicature Acts:

This rule (and other Federal Court Rules which permit the making of the same orders where a respondent is in default in complying with other procedural requirements, eg, O 11, r 23; O 15, r 16 and O 16, r 9) differs from provisions found in the rules of other courts which are derived from the post-Judicature Act rules of the English High Court. In certain classes of action, eg, where the plaintiff's claim was for a liquidated demand, the rules of other courts allowed the plaintiff to enter judgment by the ministerial act of a court official and without the intervention of the court; but the general rule empowered the entry of such judgment in default as the plaintiff appeared entitled to on his statement of claim. Initially there was some uncertainty as to whether on an application under English O 27, r 11 (the rule permitting judgment in default of defence), proof of the facts alleged in the statement of claim was required. It appears that late in the 1880s, a meeting of the judges resolved that, on such an application, the court should not receive evidence but should give judgment on the statement of claim alone: see Smith v Buchan (1888) 58 LT 710. From this time, it was firmly established that, on a motion for judgment in default, the plaintiff was not required (or entitled) to produce any evidence in support of the allegations in the statement of claim: see Young v Thomas [1892] UKLawRpCh 60; [1892] 2 Ch 134, where Bowen LJ identified the justification for the practice: the defendant's failure to plead amounted to an admission of the facts in the statement of claim. The English practice thus proceeded on the basis that evidence was required on a motion for judgment in default of defence, but that that evidence was to be found, and found only, in the defendant's admission of the facts alleged in the statement of claim constituted by his failure to plead to them.

1. The purpose of the addition to the old FC Rules of O 35A r 3(2)(c), therefore, was to include in the old FC Rules a rule to the effect that had been used in State and Territory courts for years that authorised the entry of default judgment on the assumption that the defaulting respondent has admitted the allegations of fact made in the statement of claim.
2. There are a number of matters to note about r 13.05(2)(c) of the GFL Rules. First, and consistently with the purpose for which O 35A r 3(2)(c) was introduced into the old FC Rules, r 13.05(2)(c) "does not require proof of the claim by evidence, but only requires that - on the face of the statement of claim - there is a claim for the relief sought".
3. Second, before the Court may make an order under r 13.05(2)(c) of the GFL Rules it must be satisfied that the document which the applicant has filed with the application is in fact a "statement of claim". A statement of claim is a pleading, which means it must comply with the rules of pleading. Thus, for example, the purported statement of claim must "state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved". Here, "material facts" are facts whose existence is "necessary for the purpose of formulating a complete cause of action". A "cause of action", in turn, is "a factual situation the existence of which entitles one person to obtain from the court a remedy against another person". Another example of a rule of pleading is that the statement of claim must not allege "conclusions drawn from unstated facts".
4. Third, it follows from what I have said in the previous paragraph that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, "each element of the relevant civil wrong" of which the applicant complains must be "properly and discretely pleaded in the statement of claim".
5. Fourth, although r 13.05(2)(c) of the GFL Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought. That point was made by Lord Woolf MR in Phonographic Performance Ltd v Maitra:

It is clear from the terms of O19, r 7 and para 19/7/10 that judgment in default is given upon the facts pleaded in the statement of claim and that affidavit evidence to supplement or support those facts is not appropriate as the pleaded facts are deemed to be admitted. However, that cannot be rigidly applied where the judge has to exercise a discretion whether to grant the relief sought. Where an injunction is sought facts relevant to the grant of that injunction, which are not deemed to be admitted, should be brought to the attention of the judge by way of affidavit or otherwise. Further, if the judge is aware of matters relevant to the exercise of his discretion, he can seek an appropriate explanation before coming to any decision.

1. It has been confirmed that it is permissible on an application for an order under O 35A r 3(2)(c) of the old FC Rules to adduce evidence relevant to relief. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited, Kiefel J (as her Honour then was) said:

It may be accepted that some further affidavit material may be accepted by the Court in relation to the relief sought. . . . Evidence which would alter the pleaded case should not be admitted. . . . Regard should not be had to evidence of facts which could have been, but were not, pleaded concerning the conduct of the respondents.

1. Fifth, there is the question of the approach that should be taken to construing the statement of claim. The question of construction of a statement of claim was considered by the Court of Appeal of the Supreme Court of New South Wales in Penthouse Publications Ltd v McWilliam in the different context of an application to strike out a statement of claim. Priestley JA, with whose reasons Meagher JA and Waddell AJA agreed, gave a "liberal construction to the plaintiff's statement of claim". His Honour was of the view that a statement of claim would be given a liberal construction by answering the question of what a "demurring" party will be taken to accept when that party claims the statement of claim discloses no reasonable cause of action. His Honour said that a demurring party "is in the position not only of having to accept the truth of all allegations in the statement of claim, but also the truth of the ranges of meaning of the assertions of fact in the statement of claim which those assertions are reasonably capable of bearing". I will follow this approach in the context of an application for an order under r 13.05(2)(c) of the GFL Rules.
2. Also relevant to construing a statement of claim is the principle that "[p]articulars control the generality of the pleadings". That means that the generality of an allegation contained in the statement of claim will be limited by any particulars appended to that allegation.
3. Finally, the Court retains a discretion not to make an order under r 13.05(2)(c) of the GFL Rules even if the preconditions for making an order are satisfied.

1. As noted above, r 13.05(2)(c) of the GFL Rules gives the Court discretion to give default judgment against a respondent and grant relief, if satisfied that the applicant has filed a statement of claim which complies with the rules of pleadings and discloses at least one reasonable cause of action that supports the granting of the relief sought in the application.
2. In this case, the applicant also relied on his affidavit (referred to at [13] of this judgment), which was admitted on the basis that it was relevant to the relief sought. I note that the matters set out in the applicant's affidavit did not alter the pleaded case as set out in the statement of claim.
3. For the reasons that follow, I am satisfied that the statement of claim complies with the rules of pleading so it properly answers the description of being a statement of claim and pleads causes of action that support the granting of relief by way of orders on default.

1. The allegations against the respondent in the statement of claim are set out in the following paragraphs.
2. The applicant was a national system employee within the meaning of s 13 of the FW Act, who commenced his employment with Surelinc on 24 November 2014 as a full-time air- conditioning technician and worked under the direction of the respondent. The respondent was the director and secretary of Surelinc.
3. Surelinc was a company registered under the Corporations Act 2001 (Cth), and the respondent had the knowledge and capacity to authorise and take actions on behalf of Surelinc as its director.
4. During the applicant's employment, the Electrical, Electronic and Communications Contracting Award (Award) applied to his employment. The applicant claimed Surelinc was liable for unused and accrued annual leave and long service leave.
5. On 26 February 2024, the applicant alleged his employment was unfairly terminated by the respondent. The applicant alleged that the respondent was the decision-maker and signatory of his termination of employment. On 28 February 2024, the applicant filed an unfair dismissal claim against Surelinc in the Fair Work Commission (FWC), alleging that the termination of his employment was harsh, unjust and unreasonable (unfair dismissal proceedings). The respondent had been the primary point of contact on behalf of Surelinc in the unfair dismissal proceedings.
6. On 4 July 2025, Deputy President Cross issued an order to Surelinc, requiring it to pay the applicant the sum of $27,707.66 plus superannuation within 21 days (FWC Order). Neither Surelinc nor the respondent appealed to the Full Bench of the FWC or complied with the FWC Order.
7. On 12 July 2024, Mr Graeme Robert Beattie (Mr Beattie) of Worrells was appointed administrator of Surelinc. On 19 July 2024, Mr Christopher Damien Darin (Mr Darin) of Worrells was appointed administrator of Surelinc. On the same day, both Mr Graeme Beattie and Mr Darin of Worrells were appointed joint liquidators of Surelinc.
8. Given that the respondent has not filed a defence, the allegations of fact referred to at [24] to [29] of this judgment, as pleaded in the statement of claim, are taken to be admitted pursuant to the rules referred to at [14] and [15] of this judgment.
9. I am satisfied that the discretion to order default judgment should be exercised in this case as the respondent has failed to engage in the court process, despite being on notice of the proceedings and hearing dates, and if permitted to continue not to participate in the proceedings, will effectively prevent the applicant obtaining justice. I will now turn to consider each alleged contravention.

1. The applicant alleged in the statement of claim that the respondent failed to pay his accrued annual leave entitlements under s 90(2) of the FW Act in the amount of $7,258.87, thereby contravening s 44 of the FW Act.
2. Sections 87(2) of the FW Act, in relation to the National Employment Standards (NES) as to the entitlement to annual leave, provides as follows:

An employee's entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.

1. Pursuant to s 61(1) of the FW Act, the NES are the minimum standards that apply to the employment of employees, which includes an employee's annual leave entitlement under s 61(2)(d). Section 44 of the FW Act provides that an employer must not contravene a provision of the NES. Clause 21.2 of the Award and s 90(2) of the FW Act further provide that if the employee has a period of untaken paid annual leave upon termination of the employment, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that leave.
2. Relevantly, for the calculation of the accrued annual leave, the applicant's entire employment history with the respondent needs to be considered. The applicant first commenced working at Surelinc on 24 November 2014 and ceased working on 26 February 2024 when he received his formal termination notice (termination letter) from Surelinc's general manger, signed by the respondent, with the last day of employment being 4 March 2024 (applicant affidavit at [6], [10] to [12]). The facts pleaded at [13] of the statement of claim are taken to be admitted, being that over the entire period of his employment, the applicant accrued 161.3084 hours of annual leave. Despite the fact Surelinc claimed in its letter to the FWC dated 21 March 2024 that it had fulfilled its obligations to the applicant's entitlements, the applicant deposed that he had not been paid his accrued annual leave (applicant affidavit at [27]).
3. For the purposes of default judgment, I am satisfied that the sum of $7,258.87 equates to unpaid accrued annual leave. Accordingly, I find that the respondent contravened s 44 of the FW Act and the sum owing is $7,258.87.

1. The applicant alleged in the statement of claim that the respondent failed to pay his accrued pro-rata long service leave of 8.0222 weeks under ss 4, 10A and 10B of the Long Service Leave Act 1955 (NSW) (LSL Act) in the amount of $14,439.96, thereby contravening s 323(1) of the FW Act by failing to pay the applicant for his performance of work. In a follow-up email sent by Mr Clarke, solicitor at MLC, to my chambers on 23 July 2025, Mr Clarke stated that such amount was calculated using the "Long Service Leave calculator" provided by New South Wales Department of Industrial Relations, multiplied by the applicant's rate of pay deposed to at [8] of the applicant's affidavit.
2. Sections 4(1) and 4(2)(a)(iii) of the LSL Act provide as follows:

(1) Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.

(2)

(a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall -

...

(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker's serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.

(Emphasis added)

1. The applicant worked on a full-time basis at Surelinc from 24 November 2014 and was terminated on 26 February 2024. Therefore, the applicant satisfies the criteria under s 4(2)(a)(iii) of the LSL Act to be paid for his pro-rata long service leave for working at least five years of service. The applicant deposed that he had not been paid his pro-rata long service leave (applicant affidavit at [27]).
2. For the purposes of default judgment, I am satisfied that the sum of $14,439.96 equates to unpaid pro-rata long service leave. Accordingly, I find that the respondent contravened s 323(1) of the FW Act and the sum owing is $14,439.96.

1. The applicant alleged in the statement of claim that the respondent failed to pay superannuation in the amount of $3,186.38, thereby contravening s 405 of the FW Act.
2. At the hearing before me, Mr Clarke submitted that the applicant no longer pressed the claim for superannuation.

1. The applicant alleged that the respondent contravened s 405 of the FW Act by failing to comply with the FWC Order. Section 405 of the FW Act provides as follows:

405 Contravening orders under this Part

A person to whom an order under this Part applies must not contravene a term of the order.

1. The applicant attested to the fact that he had not received any part of the sum stipulated in the FWC Order either from Surelinc or from the respondent (applicant affidavit at [24]). As shown in the FWC Order decision made by Deputy President Cross, the compensation awarded is in the amount of $27,707.66 (applicant affidavit, pp 36 to 49).
2. For the purposes of default judgment, I am satisfied that the respondent contravened s 405 of the FW Act by contravening the FWC Orders in failing to pay the applicant his compensation in the sum of $27,707.66.

Whether the respondent was involved in the contraventions

1. The applicant alleged that the respondent was involved in Surelinc's contraventions pursuant to s 550(2) of the FW Act.
2. Section 550(2) of the FW Act provides as follows:

550 Involvement in contravention treated in same way as actual contravention

...

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

1. The applicant relied on the decision of Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082 (Bevis), in which his Honour Judge Manousaridis found that the second respondent, who was the director of the first respondent, was involved in the contraventions. At [31] to [32], his Honour said:
   1. There is little evidence in relation to Mr Vu 's management of VA Holdings. Nevertheless, the little evidence there is satisfies me that Mr Vu was the controlling mind of VA Holdings, and was responsible for all aspects of its management, including the payment of wages of employees. There are three items of evidence. The first is that Mr Vu describes himself as "the sole director/secretary " of VA Holdings. Second, there are the emails between Mr Vu and the tax agent to which 1 have referred. That email shows that Mr Vu was aware and made decisions in relation to Ms Bevis 's entitlements. Third, and significantly, there is Mr Vu's evidence to which I have referred about why VA Holdings terminated Ms Bevis's employment. That evidence shows it was Mr Vu who decided to terminate Ms Bevis's employment.
   2. I therefore find that Mr Vu was involved in VA Holdings' contraventions of s.45 of the FW Act and, pursuant to s.550(1) of the FW Act, is taken to have contravened s.45 of the FW Act.
2. I am satisfied the respondent was the sole director, secretary and shareholder of Surelinc as set out in the Australian Securities and Investments Commission search (applicant affidavit, pp 50 to 57). I am satisfied that the respondent was the controlling mind of Surelinc for the following reasons:

(a) the respondent directed other employees to communicate with the applicant regarding the applicant's employment termination, as shown in the email sent by Mr Matthew Price, general manager of Surelinc, to the applicant dated 26 February 2024 (applicant affidavit, pp 7 to 8);

(b) the accompanying email of the termination notice sent by the respondent to the applicant showed the respondent's involvement in Surelinc's decision-making process (applicant affidavit, p 9);

(c) the respondent sent SMS messages to the applicant on 26 February 2024 about the applicant's employment (applicant affidavit, pp 17 to 19);

(d) the respondent signed a Form F3 - Employer response to unfair dismissal application that was lodged by Surelinc with the FWC, which named the respondent as Surelinc's contact person and representative (applicant affidavit, pp 20 to 29); and

(e) the exchange of emails dated 21 June 2024 and 26 June 2024 between the respondent, Surelinc and Deputy President Cross requesting an extension of time for filing of materials in opposing the applicant's unfair dismissal application (applicant affidavit, pp 33 to 35).

1. For the purposes of default judgment, I am satisfied that the sum of $49,406.49 equates to the total amounts payable as a result of Surelinc's contraventions. Accordingly, I find that the respondent is involved in the contraventions of the FW Act and the total sum owing is $49,406.49.

1. The applicant seeks declaration that the respondent was involved in contravening the following provisions in the FW Act with Surelinc pursuant to s 550(2) of the FW Act:

(a) section 44 of the FW Act by failing to pay the applicant his accrued annual leave entitlements under s 90(2) of the FW Act on his employment ending;

(b) section 323(1) of the FW Act by failing to pay the applicant his pro-rata long service leave under ss 4, 10A and 10B of the LSL Act; and

(c) section 405 of the FW Act by contravening the FWC Order in its failure to pay the applicant the amount awarded.

1. In this application for default judgment, the applicant seeks orders that the respondent pay the following amounts of compensation pursuant to s 545(2)(b) of the FW Act:

(a) $7,258.87 to the applicant in respect of his unpaid accrued annual leave;

(b) $14,439.96 to the applicant in respect of his unpaid pro-rata long service leave; and

(c) $27,707.66 to the applicant in respect of his failure to pay the applicant the amount awarded under the FWC Order.

1. Further, the applicant seeks the following orders:

(a) the respondent pay a civil penalty to the applicant pursuant to s 546 of the FW Act for each contravention of the FW Act;

(b) the respondent pay the civil penalty to the applicant pursuant to s 546(3) of the FW Act;

(c) the respondent pay interest pursuant to s 547 of the FW Act from 24 February 2024 in relation to the amount of long service leave claimed and from 25 July 2024 in relation to the amount awarded in the FWC Order; and

(d) the respondent pay costs pursuant to s 223 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 570 of the FW Act.

1. For the reasons set out above, I am of the view that default judgment be entered against the respondent in accordance with r 13.05(2)(c) of the GFL Rules in relation to the compensation claim. The claim for penalty, interest and costs will be dealt with at a later hearing.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.