1. The litigation history of the Blacklight Investments Matter is for relevant purposes identical to that of the Proplas Industries Matter, except that the application and statement of claim were served on Blacklight Investments on 13 January 2011.

Other relevant factual matters related to the litigation history

1. On 13 April 2011 the FW Ombudsman sent Proplas Industries and Mr Leppard a letter, together with a draft statement of agreed facts, outlining the FW Ombudsman's position in relation to the resolution of the matter before the Court.[14] The 13 April 2011 letter from the FW Ombudsman's lawyers noted that Proplas Industries and Mr Leppard did not appear at the adjourned mediation on 12 April 2011, and that no response and defence had been filed by 21 March 2011, contrary to order 1 of the orders of 7 February 2011.[15] In the same letter the FW Ombudsman put Proplas Industries and Mr Leppard on notice that if they failed to file a response by close of business 20 April 2011 the FW Ombudsman reserved the right to apply for default judgment against Proplas Industries and Mr Leppard seeking the relief set out in the statement of claim.[16]
2. Consequent upon failure to receive any response to the 13 April 2011 letter the FW Ombudsman requested that the matter be relisted before the Court. The matter was relisted accordingly, and the Court made orders on 2 May 2011.[17]
3. On 25 May 2011 Ms Walawski had a discussion with Mr Leppard and enquired as to whether he intended to file a response or defence on 30 May 2011 as ordered by the Court.[18] Ms Walawski indicated that Mr Leppard replied with words to the effect that "he would if he had anything to say", and that Ms Walawski then reminded him that if a response was not filed the FW Ombudsman's lawyers were instructed to make an application for default judgment by close of business on 30 May 2011.[19] Ms Walawski says that Mr Leppard replied with words to the effect that he an appointment with his lawyer on an unrelated matter that afternoon and that he would raise it with him, and that it had otherwise "slipped his mind". Ms Walawski attests to the fact that neither Proplas Industries nor Mr Leppard have filed a notice of address for service or a response or a defence.[20]

1. In relation to the Blacklight Investments Matter the relevant factual matters are essentially the same, in terms of the process followed and the responses received, as is set out above in respect of the Proplas Industries Matter, save that Blacklight Investments was deregistered as a corporation with effect from on or about 27 May 2011.[21]

1. Rule 13.03A(2) of the Federal Magistrates Court Rules 2001 (Cth)[22] provides that:
   • (2) For rule 13.03B, a respondent is in default if the respondent:
   • (a) has not satisfied the applicant's claim; and
   • (b) fails to:
   • (i) give an address for service before the time for the respondent to give an address has expired; or
   • (ii) file a response before the time for the respondent to file a response has expired; or
   • (iii) comply with an order of the Court in the proceeding; or
   • (iv) file and serve a document required under these Rules; or
   • (v) ...
   • (vi) ...
   • (vii) defend the proceeding with due diligence.
2. In each of the Proplas Industries and Blacklight Investments Matters the facts establish that each of Proplas Industries, Blacklight Investments and Mr Leppard are in default under r.13.03A(2)(b)(i), (ii), (iii), (iv) and (vii) of the FMCA Rules.
3. Rule 13.03B(2) of the FMCA Rules provides as follows:
   • (2) If a respondent is in default, the Court may:
   • (a) ...
   • (b) ...
   • (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) ...
   • (e) 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.
4. Under r.13.03B(2)(c) of the FMC Rules the Court may give judgment against a respondent to a proceeding commenced by an application supported by a statement of claim for the relief that:
   1. the applicant appears entitled to on the statement of claim; and
   2. the Court is satisfied it has power to grant.
5. An order for default judgment under r.13.03B(2)(c) does not require proof by evidence of the FW Ombudsman's claims in the Proplas Industries and Blacklight Investments Matters, it being sufficient if there is a basis for the relief sought on the face of the claim.[23] That is, the application "is determined on the face of the facts pleaded in the claim and without recourse to evidence which supplements or supports these facts".[24] However, where relief is discretionary (and in these matters declarations and pecuniary penalties are sought) a court is entitled, and arguably obliged, to receive materials relevant to the exercise of the discretion, provided the evidence does not contain evidence of additional facts which should have been pleaded.[25]
6. In each of the Proplas Industries and Blacklight Investments Matters the Court has the power to make the declarations and orders sought if it satisfied that there has been a contravention of a civil remedy provision, but the power to make an order, and therefore to grant relief, is discretionary.[26]

1. A question arises in the Blacklight Investments Matter as to the effect of the deregistration of Blacklight Investments.
2. In Amcus Pty Ltd v Hurst Rentals Pty Ltd & Ors (No.2)[27] the New South Wales Supreme Court dealt with the issue of whether proceedings ought to be continued, or otherwise dealt with, in circumstances where a defendant had been deregistered under s.601AD(1) of the Corporations Act 2001 (Cth).[28]
3. Section 601AD(1) of the Corporations Act provides as follows:
   • (1) A company ceases to exist on deregistration.
   • Note: Despite the deregistration, officers of the company may still be liable for things done before the company was deregistered.
4. In Amcus the New South Wales Supreme Court observed that:

1. proceedings by a plaintiff company abate, in that they are extinguished or annulled, upon dissolution of the company;[29] 2. the abatement principle extends to proceedings in which a dissolved corporation is a defendant;[30] and

1. the proper approach to the abatement proceedings involving a dissolved company is that a court must do nothing except restrain from proceeding any further.[31]
2. In Amcus there was some discussion of circumstances where it might be appropriate for an order of dismissal to issue, such as where pleadings were defective or there was a sufficiently active pursuit of the case pleaded on behalf of the dissolved company so that the conduct could be characterised as an abuse of process and the pleading struck out on that ground.[32] Neither of those factors was present in Amcus. Nor are they present in this case where Blacklight Investments has not filed a response prior to deregistration, and has not appeared before the Court prior to deregistration.
3. Therefore, insofar as Blacklight Investments is concerned the proceedings are a nullity, and there is no necessity for the Court to make any further order concerning Blacklight Investments.[33] The Blacklight Investments Matter can therefore only be approached on the basis that there is one remaining respondent, that is Mr Leppard,[34] and "as the note to s.601AD[(1) of the Corporations Act] makes plain, company officers may still be liable for anything done prior to the deregistration of their company."[35]

1. The entitlement to relief claimed by the FW Ombudsman arises from the following summarised facts:[36]

1. Mr Leppard was the sole director, secretary and 95% shareholder in Proplas Industries, and was involved in its day-to-day operation and in the overall direction, supervision and management of its operations; 2. Proplas Industries operated a waste plastics recycling business, trading under the name of "Excel Plastics";

1. Mr Jones was employed by Proplas Industries as a casual labourer from 24 February 2010 to 5 March 2010, and worked a total of 51 hours;

1. Mr Rajab was employed by Proplas Industries as a casual labourer from 24 February 2010 to 26 February 2010, and worked a total of 20 hours; 2. Mr Mohammed was employed by Proplas Industries as a casual labourer from 3 November 2010 to 5 November 2010, and worked a total of 19 hours and 20 minutes; 3. Ms Von Forslun was employed by Proplas Industries as a sales executive from 27 September 2010 to 5 November 2010, and worked a total of 6 weeks; 4. Proplas Industries failed to pay Mr Jones, Mr Rajab and Mr Mohammed for the time worked during their employment with Proplas Industries; 5. Proplas Industries failed to pay Ms Forslun for the last four of the six weeks she worked during her employment with Proplas Industries, and failed to pay Ms Forslun her accrued and untaken annual leave entitlements on termination of her employment; 6. On 11 May 2010 the Proplas Industries' Notice to Produce was issued to Proplas Industries, under s.712(1) of the FW Act; 7. The Proplas Industries' Notice to Produce specified that the records requested be produced within 14 clear days of service, with service occurring on 11 May 2010; and 8. Proplas Industries failed to produce to the FW Ombudsman the records in accordance with the terms of the Proplas Industries' Notice to Produce.
2. Mr Leppard was by reason of his position as the sole company officer and his being principal shareholder knowingly concerned in, or a party to, each of Proplas Industries' contraventions and is therefore taken to have been involved in each of the contraventions and to have contravened each of the relevant provisions, by reason of the operation of s.550(1) of the FW Act.
3. The facts summarised above, read in conjunction with paragraphs 6-32 and 53-58 of the FW Ombudsman's Amended Statement of Claim, give rise to five contraventions, namely:

1. section 45 of the FW Act in relation to Mr Jones, Mr Rajab and Mr Mohammed by failure to pay the minimum basic hourly rate of pay as prescribed under the Waste Management Award 2010, which was applicable to their employment; 2. section 45 of the FW Act in relation to Mr Jones, Mr Rajab and Mr Mohammed by failing to pay the casual loading as prescribed under the Waste Management Award 2010;

1. item 5 of Schedule 16 of the FW Transitional Act in relation to Ms Von Forslun, by failing to pay the minimum basic hourly rate of pay as prescribed under the Preserved Australian Pay and Classification Scale derived from s.12 of the Minimum Conditions of Employment Act 1993 (WA);

1. section 44 of the FW Act in relation to Ms Von Forslun, by failing to pay accrued and untaken annual leave entitlements on termination of employment under s.90(2) of the FW Act; and 2. section 712(3) of the FW Act by failing to comply with the Proplas Industries' Notice to Produce.
2. The facts alleged establish that Proplas Industries and Mr Leppard were involved in the contraventions of each of the abovementioned provisions, each of which is a civil remedy provision for the purposes of s.539 of the FW Act, and Item 16 of Schedule 16 of the FW Transitional Act. In relation to a contravention of a civil remedy provision the FW Ombudsman is entitled to make application to the Court for orders in relation to the contravention of a civil remedy provision.[37]
3. The Court has power to make order if it is satisfied that a person has contravened a civil remedy provision,[38] including:

1. orders for loss and damage to be paid at the Safety Net contractual entitlement rate;[39] 2. an order for interest at such rate as the Court thinks fit;[40] and

1. order that pecuniary penalties be paid into Commonwealth Consolidated Revenue.[42]
2. The only possibly controversial issue which arises in relation to the relief sought is whether or not the Court has power to make declarations in relation to the contraventions. In that regard, the Court accepts that:

1. it may make declarations based on deemed admissions, particularly in a case such as at present that involves issues of public interest;[43] 2. the declarations must convey the gist of the contravening conduct, setting out how and why the conduct contravened the relevant laws, both accurately and concisely;[44]

1. there is a public interest to be served in making declarations, in that it will help to inform others about obligations to comply with statutory minima imposed under the relevant laws, and provide a warning that the consequences of failure to meet those obligations; and

1. making declarations marks the Court's disapproval of the contravening conduct.[45]

1. The entitlement to relief claimed by the FW Ombudsman arises from the following summarised facts:[46]

1. Mr Leppard was the sole director and shareholder of Blacklight Investments and was involved in its day-to-day operation and in the overall direction, supervision and management of its operation; 2. Blacklight Investments operated a waste plastics recycling business trading under the name of "Peak Recycling";

1. Mr Tomkins was employed by Blacklight Investments as a fulltime labourer from 6 March 2009 to 9 March 2009 and worked a total of 16 hours;

1. Mr Nor was employed by Blacklight Investments as a casual labourer from 27 July 2009 to 6 August 2009 and worked a total of 73½ hours; 2. Mr Ali was employed by Blacklight Investments as a casual labourer from 30 July 2009 and worked a total of 30 hours; 3. Blacklight Investments failed to pay Mr Tomkins, Mr Nor and Mr Ali for the time work during their employment with Blacklight Investments; 4. the Blacklight Investments' Notice to Produce under s.712(1) of the FW Act specified records requested to be produced within 14 days of service on Blacklight Investments, which occurred on 28 May 2010; and 5. Blacklight Investments failed to produce to the FW Ombudsman the record in accordance with the terms of the Blacklight Investments' Notice to Produce.
2. Mr Leppard was by reason of his position as the sole company officer and his being the sole shareholder knowingly concerned in, or a party to, each of Blacklight Investments' contraventions, and is therefore taken to have been involved in each of the contraventions and to have contravened each of the relevant provisions.[47]
3. The facts summarised above, read in conjunction with paragraphs 6-21 and 33-38 of the FW Ombudsman's Amended Statement of Claim in the Blacklight Investments Matter, give rise to four contraventions namely:

1. section 182(1) of the WR Act, by failing to pay Mr Tomkins the minimum basic hourly rate of pay payable under the Preserved Australian Pay and Classifications Scale derived from s.12 of the Minimum Conditions of Employment Act 1993 (WA);[48] 2. item 5 of Schedule 16 of the FW Transitional Act, by failing to pay Mr Nor and Mr Ali the basic hourly rate of pay as prescribed under the Transitional MCE Act APCS;

1. item 5 of Schedule 16 of the FW Transitional Act, by failing to pay Mr Nor and Mr Ali the casual loading as prescribed under the Transitional MCE Act APCS; and

1. by failing to comply with the Blacklight Investments' Notice to Produce.[49]
2. The facts alleged in the Amended Statement of Claim establish that Mr Leppard was involved in the above contraventions, which are all contraventions of civil remedy provisions for the purposes of s.718(1) of the WR Act, Item 16 of Schedule 16 of the FW Transitional Act and s.539 of the FW Act.
3. For the reasons set out above in respect of the Proplas Industries Matter the Court has the power to make the orders sought in respect of the contravention of civil remedy provisions, and it is appropriate to make a declaration or declarations for reasons also set out above.

1. Good cause has not been shown as to why interest ought not be awarded in respect of the losses for which compensation will be ordered in each of the Proplas Industries and Blacklight Investments Matters,[50] and interest will be so ordered at the rate currently prescribed for litigation before the Supreme Court of Western Australia.[51]

1. In both the Proplas Industries Matter and the Blacklight Investments Matter the FW Ombudsman has made out its application in a case.
2. There will therefore generally be orders and declarations as sought in:
   1. paragraphs 1, 2, 3, 4, 5 and 6 of the Proplas Industries application in a case; and
   2. paragraphs 1, 3, 4, 6 and 7 of the orders sought in the Blacklight Investments application in a case.
3. There will not be an order in terms of paragraph 2 of the orders sought in the Blacklight Investments application in a case, that is that the proceedings against Blacklight Investments be stayed, for the reasons set out in the Reasons for Judgment above.[52]
4. Otherwise, the Proplas Industries and Blacklight Investments Matters are adjourned to a directions hearing at 9.45am on 22 July 2011 for further directions to be made with respect to a penalty hearing.
5. The Court will also reserve the issue of costs, if any, to the 22 July 2011 directions hearing, for further directions.

I certify that the preceding 43Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-threeforty-three (43) paragraphs are a true copy of the reasons for judgment of Lucev FM

[4] "Proplas Industries Matter"; PEG 253 of 2010.

[6] "Blacklight Investments Matter"; PEG 254 of 2010.

[10] "Proplas Industries' Notice to Produce".

[11] "Blacklight Investments' Notice to Produce".

[12] Affidavit of Harry Williams, sworn 31 January 2011 ("First Williams Proplas Industries Affidavit"), paras.2-4.

[13] Affidavit of Harry Williams, sworn 3 February 2011 ("Second Williams Proplas Industries Affidavit"), paras.2-4.

[14] Affidavit of Kate Rebecca Walawski, sworn 9 June 2011, paras.11 and 12 ("Ms Walawski's 9 June Proplas Industries Affidavit").

[15] Ms Walawski's 9 June Proplas Industries Affidavit, para.13.

[16] Ms Walawski's 9 June Proplas Industries Affidavit, para.14.

[17] Ms Walawski's 9 June Proplas Industries Affidavit, paras.15-17.

[18] Ms Walawski's 9 June Proplas Industries Affidavit, para.18-19.

[19] Ms Walawski's 9 June Proplas Industries Affidavit, paras.20-21.

[20] Ms Walawski's 9 June Proplas Industries Affidavit, paras.22-24.

[21] Affidavit of Kate Rebecca Walawski, sworn 9 June 2011 (in the Blacklight Investments Matter), para.25.

[23] Australian Building and Construction Commissioner v Abbott (No 3) [2011] FCA 340 at para.11 per Gilmour J ("Abbott No 3"); Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352 at para.14 per Gordon J ("Yellow Page Marketing").

[24] Yellow Page Marketing at para.61 per Gordon J.

[25] Yellow Page Marketing at paras.62-63 per Gordon J, citing Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at 678 per Kiefel J; [2006] FCA 1427 at paras.48-51 per Kiefel J ("Dataline").

[27] (2010) 77 ACSR 550; [2010] NSWSC 239 ("Amcus").

[28] "Corporations Act".

[29] Amcus ACSR at 553 per Slattery J; NSWSC at para.14 per Slattery J.

[30] Amcus ACSR at 553-554 per Slattery J; NSWSC at para.15 per Slattery J, citing Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 515 per Sackville J.

[31] Amcus ACSR at 554 per Slattery J; NSWSC at paras.16-17 per Slattery J.

[32] Amcus ACSR at 554 per Slattery J; NSWSC at para.19 per Slattery J.

[33] Amcus ACSR at 555 per Slattery J; NSWSC at para.22 per Slattery J. In Turner v Inspire Camps and Recreation Australia Pty Ltd [2011] FMCA 400 ("Inspire Camps") this Court did order the dismissal of a matter in similar circumstances to those presently before the Court, but in Inspire Camps there was no consideration of Amcus, which whilst not binding on this Court is nevertheless highly persuasive, and which ought to be applied unless plainly wrong, which it is not.

[34] A similar approach was taken in Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409 at paras.7-8 per Barrett J ("Mossimo Systems"), where having cited Amcus and United Service Insurance v Lang (1935) 35 SR(NSW) 487, the New South Wales Supreme Court proceeded against seven remaining plaintiffs, but not two plaintiffs where those two plaintiff companies no longer existed as a consequence of deregistration: see Mossimo Systems at paras.6-9 per Barrett J.

[35] McPhersons Law of Company Liquidation (Thomson Reuters - Legal Online), para.16.520.

[36] The factual background to the contraventions and the facts supporting the entitlement to relief are set out in detail at paras.6-32 and 53-58 of the FW Ombudsman's Amended Statement of Claim in the Proplas Industries Matter.

[37] FW Act, ss.539 and 701 and Item 16 of Schedule 16 of the FW Transitional Act.

[41] FW Act, s.546(1); Item 16(1)(b) of Schedule 16 of the FW Transitional Act.

[43] Dataline ALR at 680-681 per Kiefel J; FCA at paras.54-59 per Kiefel J; Yellow Page Marketing at paras.66-69 per Gordon J.

[44] Dataline ALR at 682-683 per Kiefel J; FCA at paras.63-66 per Kiefel J; Yellow Page Marketing at para.68 per Gordon J.

[45] Yellow Page Marketing at para.69 per Gordon J.

[46] For further detail on the factual background to the contraventions and facts supporting the entitlement see paras.6-21 and 33-38 of the Amended Statement of Claim in the Blacklight Investments Matter.

[47] WR Act, s.728; FW Act, s.550(1).

[50] WR Act, s.722(1); FW Act, s.547(2) and (3).

[51] TCFU v Givoni Pty Ltd [2002] FCA 1406; (2002) 121 IR 250 at 273 per Goldberg J; [2002] FCA 1406 at para.91 per Goldberg J.