Fair Work Ombudsman v Ella Group

(i) file and serve a response and defence within 28 days of service as required by rules 4.03(3) and 4.04(3) of the rules;

(ii) comply with an order of the Court in the proceedings, being order 1 of the orders of the Court dated 26 February 2025 and order 1 of the orders of the Court dated 16 April 2025, in accordance with rule 13.04(2)(b)(ii) of the rules;

(iii) attend the directions hearings before Judge McCabe on 12 February 2025, 26 February 2025 and 16 April 2025; and

(iv) in light of the above, defend the proceedings with due diligence in accordance with rule 13.04(2)(b)(vii) of the rules.

1. Upon admissions taken to have been made by reason of the respondents' default, declarations be made that:

(a) the first respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice given to it on 20 December 2023 (Compliance Notice); and

(b) the second respondent was involved, within the meaning of section 550(2)(c) of the FW Act, in the first respondent's contravention of section 716(5) of the FW Act, referred to in paragraph 2(a) above and, by reason of section 550(1), is taken to have contravened section 716(5) of the FW Act.

(a) pursuant to sections 545(1) and 545(2)(d) of the FW Act, the first respondent take the steps required by the Compliance Notice within 28 days of the order by:

(i) calculating and paying to the applicant the outstanding entitlement it was required to pay to the Employee under the Compliance Notice (Outstanding Amount);

(ii) calculating and paying the additional superannuation contributions to the Employee's nominated superannuation account as required by clause 20.2 of the Children's Services Award 2010 in respect of the Outstanding Amount;

(iii) preparing and producing to the applicant a schedule outlining its calculation of the amounts outlined in paragraphs 3a(i) and (ii) above; and

(iv) providing the applicant with proof of payment of the amounts outlined in paragraphs 3a (i) and (ii) above.

(b) pursuant to section 547(2) of the FW Act, within 28 days of this order, the first respondent pay interest to the applicant on the Outstanding Amount at the applicable pre-judgment interest rate prescribed by the Federal Court of Australia;

(c) the applicant distribute to the Employee the amounts paid pursuant to paragraphs 3(a)(i) and 3(b) above within 60 days of the payments being made;

(d) the matter be adjourned to a date to be fixed for a further hearing in respect of the applicant's claim for pecuniary penalties to be imposed on the respondents pursuant to section 546(1) of the FW Act.

(e) the applicant file and serve evidence and submissions relating to penalty no later than 28 days prior to the date of the hearing fixed pursuant to order 3(d) above.

(f) the respondents file and serve evidence and submissions relating to penalty no later than 14 days prior to the date of the hearing fixed pursuant to order 3(d) above.

(g) the applicant file and serve evidence and submissions in reply relating to penalty no later than 7 days prior to the date of the hearing fixed pursuant to order 3(d) above.

(h) the applicant have liberty to apply; and

(i) such further orders as the Court considers appropriate.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The Fair Work Ombudsman is the applicant in these proceedings. The applicant commenced these proceedings in respect of the failure by The Ella Group (NSW) Pty Ltd and Louise Ramona Yaacoubian, the first and second respondent respectively, to obey the compliance notice dated 20 December 2023.
2. In the statement of claim filed 4 December 2024, the applicant alleged the respondents had failed to comply with the compliance notice. Most significantly, the first respondent failed to remedy the underpayments to its employee, Ms Samantha Rahi, which is a contravention of s 716(5) of the Act. The second respondent was involved in the first respondent's contravention within the meaning of s 550(2)(c) of the Act. The second respondent is and was at all relevant times the first respondent's sole director and was alleged to be responsible for ensuring the first respondent's compliance with its legal obligations under the Act.
3. The applicant sought in the statement of claim declarations of contraventions against the respondents and orders for payment to the employee of the outstanding underpayments along with any related superannuation, interest and pecuniary penalties.
4. The applicant has now applied to the Court seeking default judgment against the first and second respondents pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I am satisfied the application for default judgment against the respondents should be granted. I explain my reasons for that conclusion below.

1. The applicant filed an affidavit of service on 25 February 2025. This affidavit said Ms Talysha Sabatino effected service by hand on 20 February 2025 at the second respondent's residential address at 15 June Street Blacktown NSW 2148. The following documents were served:
   • applicant's application filed 4 December 2024;
   • statement of claim filed 4 December 2024; and
   • letter from the applicant dated 16 December 2024 informing the respondents of these proceedings and the respondent's requirement to file a response in these proceedings.
2. The applicant also filed an affidavit of service of Ms Eirinn Johanna O'Meara Hayes that was affirmed on 25 February 2025. The affidavit explains at [3] - [4] the applicant conducted a company search on the first respondent on the Australian Securities and Investments Commission (ASIC) database. A copy of the results of this search is provided in this affidavit of service and reveals the first respondent's registered office location is at Guardian Accounting Services, Suite 20, Level 3, 27 Hunter Street Parramatta NSW 2150. Ms Hayes effected service on the first respondent on 19 December 2024 by express post to the first respondent's registered office. The following documents were served:
   • applicant's application filed 4 December 2024;
   • statement of claim filed 4 December 2024; and
   • letter from the applicant dated 16 December 2024 informing the respondents of these proceedings and the respondent's requirement to file a response in these proceedings.
3. On 5 May 2025, the applicant lodged an application for default judgment in these proceedings. This was accompanied with an affidavit of service of Ms Hayes that was affirmed on 5 May 2025. This affidavit of service outlined:

(a) The matter was listed for second directions hearing on 26 February 2025. Ms Hayes appeared at this Court listing yet there was no appearance by or on behalf of the first and second respondents. Orders were made that the first and second respondents file and serve a response and defence by no later than 4:00pm on 26 March 2025.

(b) The applicant emailed Sharmans Investigations and Process Serving to conduct a skip trace report on the second respondent on 5 February 2025. The applicant received an email enclosing this report amongst other things on 19 February 2025. The report provided the second respondent's residential address may be 15 June Street Blacktown NSW 2148. (That detail reveals why the applicant served the second respondent at this location on 20 February 2025.)

(c) The applicant conducted a company search on the first respondent on the Australian Securities and Investments Commission (ASIC) database on 2 May 2025. This search provided that:

• the first respondent's registered office location is at Guardian Accounting Services, Suite 20, Level 3, 27 Hunter Street Parramatta NSW 2150; and
• the current address for the first respondent's principal place of business is 57A Rawson Road Greenacre NSW 2190.

(d) The applicant sent an email on 26 February 2025 to the second respondent at 'theellagroupnsw@outlook.com', being the last known email address that the second respondent used to correspond with the Office of the Fair Work Ombudsman in respect of the first respondent. This email enclosed a sealed copy of the orders made on 26 February 2025.

(e) The applicant sent a letter by express post and email to 'theellagroupnsw@outlook.com' on 13 March 2025 enclosing the amended orders of 26 February 2025. The letter also sought to confirm the most current contact details for the first and second respondents. The letter was posted to the following locations:

• the first respondent's principal place of business at 57A Rawson Road Greenacre NSW 2190;
• 59A Rawson Road, Greenacre NSW 2190;
• 15 June Street, Blacktown NSW 2148.

(f) The applicant received on 11 April 2025 the express post envelope for the first respondent's principal place of business which was marked "Return to Sender: Unclaimed".

(g) The applicant sent a letter to the respondents on 11 April 2025 enclosing a copy of the revised orders of 16 February 2025. The letter also advised the applicant may apply for default judgment in the proceedings without further notice. This was sent to the same locations set out in subparagraph (e) above. Accordingly, the delivery status of the letters sent by express post was marked as delivered on 14 April 2025.

(h) The applicant attended the third directions hearing in this matter on 16 April 2025. There was no appearance by or on behalf of the first or second respondents. Orders were made on this occasion for both respondents to file and serve a response and defence by no later than 4:00pm on 28 April 2025.

(i) The applicant sent an email to the second respondent's email address ('theellagroupnsw@outlook.com') enclosing orders of 16 April 2025 on the same day. The applicant further sent a letter enclosing these orders on 23 April 2025 to the locations set out in subparagraph (e) above. The delivery status of each of these addresses was recorded as delivered on 28 April 2025.

(j) The applicant sent an email to the first respondent's email address ('theellagroupnsw@outlook.com') on 2 May 2025. This email put the first respondent on notice the applicant would take steps to apply for default judgment against the respondents in the proceedings without further notice.

1. The respondents did not appear at the hearing of the application for default judgment. I am satisfied there was no appearance by the respondents and the hearing began in their absence pursuant to r 13.06(1)(e) of the rules.
2. I am satisfied having regard to the affidavit evidence provided by the applicants that the respondents are in default pursuant to r 13.04(2) of the rules. In particular, the respondents are in default because of:

(i) The first respondent's failure to satisfy the applicant's claim (r 13.04(2)(a));

(ii) The first and second respondent's failure to give an address for service (r 13.04(2)(b)(i));

(iii) The first and second respondent's failure to file a response (r 13.04(2)(b)(ii));

(iv) The first and second respondent's failure to comply with any orders made by this Court in these proceedings (r 13.04(2)(b)(iii)); and

(v) The first and second respondent's failure to defend these proceedings with due diligence which is seen by both respondents conduct in subparagraphs (i) through to (iv) above (r 13.04(2)(b)(vii)).

1. Having satisfied myself the respondents are in default, the discretion to order default judgment has been enlivened. It remains for me to consider whether the applicant is entitled to the relief sought in the statement of claim. The substance of the applicant's claim has already been outlined in [2] of these reasons. I am satisfied that claim is in order in respect of both respondents, and that the relief sought is appropriate.
2. Accordingly, default judgment will be entered for the applicant against the respondents pursuant to r 13.05(2)(c) of the rules.

1. I am satisfied that the respondents have been served pursuant to the rules. I am satisfied the respondents are in default noting they have not satisfied their obligations pursuant to the rules and under the orders that the Court has made in this proceeding.
2. I am also satisfied a separate hearing in this proceeding in respect of the issue of penalty is a sensible course, as sought by the applicant. I will make orders in Chambers setting a further timetable for hearing which the respondents are able to attend and be heard in respect of the remaining determinations in this matter.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.