Johnson v Village Bakery Balgowlah Heights Pty Ltd [2025] FedCFamC2G 892

1. Pursuant to section 545(1) of the FW Act, the respondents pay as compensation to the applicant, on or by 2 July 2025, the amount of $72,192.65 comprising:

(a) outstanding wages in the sum of $48,937.85;

(b) the non-payment of superannuation in the sum of $5,174.20; and

(c) compensation for unreasonably requiring the applicant to spend or pay money in the sum of $18,080.60.

1. Pursuant to sections 134 and 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the second respondent is further ordered to pay to the applicant, on or by 2 July 2025, the amount of $18,171.40 by way of damages for detinue in respect of the applicant's belongings set out in Schedule 4 to the Statement of Claim.
2. The applicant is to file and serve written submissions in relation to any further declaratory relief orders, pecuniary penalty orders, interest or costs orders sought by 18 June 2025.
3. The respondents are to file and serve any written submissions in response by 25 June 2025.
4. The matter is listed on 2 July 2025 at 2.15 pm for further hearing as to any further declaratory relief orders, pecuniary penalty orders, interest or costs orders sought by the applicant.
5. The applicant serve on the respondents a sealed copy of these orders by emailing a copy to each of the following email addresses:

(a) byanavu@gmail.com

(b) avuattawell@gmail.com

(c) orders@leafandgrainstore.com

1. These declarations and orders are made pursuant to rules 13.04(2)(b) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth).

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. Before the Court is an application in a proceeding filed on 6 February 2025 (default judgment application), by which the applicant seeks orders for default judgment against both respondents pursuant to subrules 13.04(2)(b) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
2. The respondents have not filed any material responding to the applicant's claims, nor did the respondents attend the hearing of the default judgment application on 11 March 2025.
3. The claims made by Ms Tayla Maddison Johnson (applicant) in this proceeding arise in the context of her prior employment with Village Bakery Balgowlah Heights Pty Ltd (first respondent), which is, or was, a bakery business in Balgowlah Heights, Sydney. Ms Nhu Anh Vu (second respondent) was, at all material times, the sole director and shareholder of the first respondent.
4. The applicant's claims can be separated in two separate categories:

(a) the employment claims made under the Fair Work Act 2009 (Cth) (FW Act), which comprise claims relating to:

(i) the underpayment of wages, with respect to her minimum entitlements under the relevant modern award;

(ii) the non-payment of superannuation, due to the fact the first respondent failed to pay any superannuation at all in respect of the work performed by the applicant;

(iii) compensation for the excessive amount of the applicant's personal money the applicant was required to pay for the direct benefit of the first respondent's bakery business, in contravention of the prohibition on unreasonably requiring an employee to spend or pay money;

(iv) the contravention of other civil remedy provisions, such as the requirement to keep employment records and to provide payslips, in respect of which the applicant seeks orders for the imposition of pecuniary penalties; and

(b) the claim arising at common law, which is made against the second respondent only, and which, insofar as the default judgment application is concerned, relates to the applicant's personal property that has been unlawfully converted or detained by the second respondent.

1. The second respondent was, and remains, the sole director and shareholder of the first respondent. She was the relevant actor who performed the relevant acts giving rise to the employment claims brought against the first respondent.
2. In relation to the employment claims, the applicant alleges that the second respondent is liable as an accessory under s 550(1) of the FW Act, with the result that she is personally liable for the contraventions engaged in by the first respondent comprising the employment claims, and for orders relating to compensation, interest or pecuniary penalties.

1. In or about June 2021, the applicant, then 16 years of age, accepted an offer of employment as a casual retail assistant for the first respondent.[1]
2. The applicant's employment was governed by an agreement that was partly verbal and partly in writing.[2]
3. Between June 2021 and 22 August 2021, the applicant and second respondent developed a personal relationship, during which time the second respondent invited the applicant to live at her residence above the business premises. The applicant subsequently lived with the second respondent intermittently as follows:[3]

(a) between 23 August 2021 and 1 October 2021;

(b) between about 8 April 2022 and 4 June 2022; and

(c) between 30 October 2022 and 24 April 2023.

1. On 9 October 2024, the applicant filed an application in the Fair Work Division of this Court, and by 29 January 2025, the application was served on the first respondent.[4]

1. On 3 December 2024, at the first court date, the applicant sought, amongst others, orders for the appointment of Ms Amanda McNally as litigation guardian for the applicant. In support of this order, the applicant relied on an affidavit of Ms McNally, sworn on 15 October 2024 (first McNally Affidavit).
2. By the first McNally Affidavit, Ms McNally provided detail in relation to the applicant's intellectual disability, and further medical diagnoses.[5] Accordingly, the applicant requires assistance to undertake her daily activities as well as to manage her personal and financial affairs. Annexed to this affidavit are orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal dated 7 June 2023 (guardianship orders), by which Ms McNally was appointed the legal guardian of the applicant and the financial manager of her estate for a period of two years commencing on 7 June 2023.[6] On 9 June 2023, the NSW Trustee and Guardian provided Ms McNally a 'Directions and Authorities' document which specified that Ms McNally was required to seek approval from the NSW Trustee and Guardian in relation to commencing, or continuing, legal proceedings on behalf of the applicant.
3. At the first court date on 3 December 2024, having not been satisfied that Ms McNally had received the requisite approval from the NSW Trustee and Guardian, I made the following order:
   1. The Applicant is to file and serve, on or before 15 January 2025, an Affidavit which evidences that Ms McNally is the manager of the affairs of the Applicant for the purposes of rule 11.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules).
4. On 22 January 2025, Ms McNally filed a further Affidavit in the proceeding, sworn on the same date (second McNally Affidavit). Annexed to this affidavit was correspondence sent to the NSW Trustee and Guardian seeking approval for Ms McNally to commence and continue these proceedings. The following response was received by the applicant's representatives:[7]

Thank you for your correspondence dated 11 December 2024, in relation to NSW Trustee and Guardian (NSWTG) and the private management of Ms Tayla Maddison Johnson. As the Principal Client Service Officer overseeing Private Management, I am responding to your requests.

...

(c) For the purposes of the Financial Management Order, Mrs McNally has receival of all necessary approvals from the NSW Trustee and Guardian in order to commence and continue the subject proceedings (being proceeding SYG2517/2024 in the Federal Circuit and Family Court of Australia (Division 2)) (the Proceeding) on behalf of Ms Johnson, and no further approval is required.

1. Accordingly, having been satisfied that Ms McNally had secured the requisite approval from the NSW Trustee and Guardian to commence, and continue, these proceedings, on 23 January 2025 and pursuant to r 11.10 of the Rules, I made an order appointing Ms McNally as the applicant's litigation guardian.

1. On 11 February 2025, I made orders by which the first and second respondents were deemed to have been served with the Statement of Claim, Application - Fair Work Division filed on 9 October 2024, and the first McNally Affidavit (originating documents) on or by 29 January 2025.
2. Pursuant to r 4.02(3) of the Rules, the respondents were required to file and serve any response or defence within 28 days of service of the originating documents. They ought therefore to have filed any response or defence by 26 February 2025.
3. At the time of this judgment, no such response or defence, nor any material, has been filed by either of the respondents in this matter.

1. The default judgment application was filed on 6 February 2025. That application was listed for hearing before me on 11 March 2025.
2. In support of the default judgment application, the applicant relies on:

(a) the affidavit of the applicant, Tayla Maddison Johnson, sworn on 24 February 2025 (Johnson Affidavit);

(b) the affidavit of the applicant's litigation guardian, Amanda McNally, sworn on 24 February 2025 (third McNally Affidavit); and

(c) the affidavit of Aashray Velhal, affirmed on 25 February 2025 (Velhal Affidavit).

1. The applicant also relies upon written submissions, filed on 25 February 2025, and oral submissions presented at hearing by the applicant's Counsel, Mr Guy.
2. Rule 13.04 of the Rules relevantly provides:

13.04 When a party is in default

(1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to:

(a) comply with an order of the Court in the proceeding; or

(b) file and serve a document required under these Rules; or

(c) produce a document as required by Part 14; or

(d) do any act required to be done by these Rules; or

(e) prosecute the proceeding with due diligence.

(2) For the purposes of rule 13.05, 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) produce a document as required by Part 14; or

(vi) do any act required to be done by these Rules; or

(vii) defend the proceeding with due diligence.

13.05 Orders on default

...

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

...

(c) if the proceeding was started 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

(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.

1. The proceedings have been on foot since October of last year. As stated above, neither of the respondents have participated in these proceedings. The respondents have been given numerous opportunities since the initiation of the proceedings to participate, but they have simply not engaged in the proceedings at all. In these circumstances, I am of the view that the respondents are in default for the purposes of rule 13.04.
2. Turning now to the substantive issues for consideration, I first address the employment claims foreshadowed at paragraph [4(a)] above then proceed to examine the common law claim foreshadowed at paragraph [4(b)].

1. Section 545(1) of the FW Act empowers this Court to make any order it considers appropriate if it is satisfied that a person has contravened a 'civil remedy provision': see s 539(2) of the FW Act.
2. The applicant alleges that the first respondent has contravened the following civil remedy provisions under the FW Act:

(a) sections 45 and 323(1) respectively prohibit an employer from breaching a term of a modern award and from failing to pay an employee in full in respect of amounts owing for work performed;

(b) section 325(1) which prohibits an employer from unreasonably requiring an employee to spend or pay money which is for the benefit of the employer or a related party; and

(c) sections 535(1) and 536(1), which relate to the first respondent's obligation to keep employment records and provide pay slips respectively. This issue is relevant to the determination of pecuniary penalties, which will be addressed in a further judgment.

Contravention of ss 45 and 323(1) - Underpayment

1. Section 45 of the FW Act provides a person must not contravene a term of a modern award.

1. As stated above, the applicant submits she was employed as a Retail Employee Level 1 under the General Retail Industry Award 2020 (Award). The tasks performed by the applicant in the course of her employment included:

(a) opening and closing the bakery;

(b) customer services and cashing orders;

(c) cleaning;

(d) light baking duties;

(e) dealing with creditors of the bakery in the event bills were outstanding;

(f) managing social media accounts;

(g) providing training for junior staff members; and

(h) assisting to manage the shifts and rosters of other co-workers, including arranging for other bakery staff to open and close the store.

1. I am satisfied these duties fall within the classification structure for a Level 1 Employee Retail Employee Level 1 at a retail establishment pursuant to A.1 of Schedule A to the Award.

1. The applicant was 16 years of age when she commenced working and turned 17 years of age on 24 April 2022.[8]
2. Clause 17.2 of the Award sets out the rates of pay for junior employees. Employees who are 16 years old are to receive 50% of the adult rate and while who are 17 years old are to receive of 60% of the adult rate. Clause 22 of the Award sets out the penalty rates for hours worked at specified times or on specified days. At cl 22.1 of the Award, Table 12 sets out the various penalty rates payable including for casual employees.
3. Having reviewed the applicable Award pay rates throughout the applicant's period of employment with the first respondent, and the dates worked by the applicant during that entire period of employment, I note the applicable hourly rates were as follows:

(a) For the period in June 2021: ordinary hourly rate of $13.61.

(b) For the period 1 July 2021 - 30 August 2021: ordinary hourly rate of $13.61.

(c) For the period 1 September 2021 - 23 April 2022: ordinary hourly rate of $13.95; Saturday hourly rate of $16.74; Sunday hourly rate of $19.53; public holiday hourly rate of $27.90.

(d) For the period 24 April 2022 - 30 June 2022: ordinary hourly rate of $16.75; Saturday hourly rate of $20.10; Sunday hourly rate of $23.45.

(e) For the period 1 July 2023 - 24 April 2023: ordinary hourly rate of $17.54; Saturday hourly rate of $21.05; Sunday hourly rate of $24.55.

1. In the Johnson Affidavit, the applicant deposes to the amount she was paid for her work for the first respondent and the approximate hours she worked while in the employ of the first respondent. The applicant's unchallenged evidence, which I accept, is that:

(a) she was paid a total of $1,233 in cash for work she performed during the period 16 June 2021 - 8 August 2021;

(b) between June of 2021 and 24 April 2023, she worked a total of 2,124.25 hours. Within this total number of hours, she worked:

(i) 332.25 hours on Saturdays;

(ii) 292 hours worked on Sundays; and

(iii) 66.5 hours worked on public holidays.

1. Having considered the hours worked across the various periods set out in Schedule 1 to the Statement of Claim and the hourly rates detailed above, I find the first respondent was required to pay wages to the applicant in the sum of $50,170.85. Having already paid the applicant $1,233, the outstanding wage balance payable by the first respondent to the applicant is $48,937.85.

1. On this basis, the first respondent has failed to comply with cls 17 and 22 of the Award. Accordingly, the first respondent has contravened s 45 of the FW Act.
2. Having failed to pay the applicant her entitlement under the Award, the first respondent has also contravened s 323(1) of the FW Act, which requires an employer to pay an employee in full in money at least monthly.

Contravention of ss 45 and 323(1) - Compensation for non-payment of superannuation

1. I accept the applicant's unchallenged evidence that she has not been paid any amount of superannuation for work she performed for the first respondent.
2. In relation to the amount sought for the non-payment of superannuation, the applicant submits the amount is to be calculated in accordance with the relevant superannuation legislation. During the applicant's employment, an employer was required to pay between 9.5% and 10.5% of an employee's ordinary time earnings into the employee's superannuation fund: see cl 20.2 of the Award.
3. Taking into account the applicable superannuation rates during the course of the applicant's employment, I calculate that the applicant was entitled to be paid $5,174.20 in superannuation for her work for the first respondent. That total amount comprises:

(a) $19.39 (being 9.5% of $204.15 in wages earnt for the period in June 2021);

(b) $1,833.68 (being 10% of $18,336.85 in wages earnt for the period between 1 July 2021 and 30 June 2022); and

(c) $3,321.13 (being 10.5% of $31,629.85 in wages earnt for the period between 1 July 2022 and 24 April 2023).

Contravention of s 325(1) - Unreasonable requirement to spend or pay money

1. The applicant claims that whilst in the employ of the first respondent, the first respondent required the applicant to unreasonably spend large sums of money and pay certain amounts that were directly or indirectly for the benefit of the first respondent or to a party related to it, namely the second respondent. In so doing, the applicant claims the first respondent contravened the civil remedy provision in section 325(1) of the FW Act.
2. Section 325(1) of the FW Act relevantly provides:

325 Unreasonable requirements to spend or pay amount

(1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee's money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

(a) the requirement is unreasonable in the circumstances; and

(b) for a payment - the payment is directly or indirectly for the benefit of the employer or a party related to the employer.

Note: This subsection is a civil remedy provision (see Part 4-1).

1. The applicant claims the amounts spent were unreasonable because the contributions were excessive and not principally for her benefit. Insofar as it might be said that the amounts were at least in part for the benefit of the applicant, the applicant submits that the value of any benefit received by her did not provide a countervailing justification for the payments she made.
2. I note the Johnson Affidavit and third McNally Affidavit depose to there being an error in the Statement of Claim in relation to the figures of compensation sought in respect of the s 325 contravention. The applicant submits the originally claimed figure incorrectly included an amount of $700 paid by the applicant for reasons not that did not directly, or indirectly, benefit the first respondent. Accordingly, the applicant submits that an adjustment is required to reflect that error.
3. The conduct as demonstrated by the accepted evidence, and in the absence of any explanation by the respondents, is indicative of the first respondent requiring an employee to make payments that were principally for the benefit of the bakery business and the second respondent. By way of example:

(a) On 12 November 2022, the applicant was required to pay an amount of $222.70 to Manly Freezers Balgowlah for the benefit of the first respondent.

(b) On 13 November 2022, the applicant was required to pay an amount of $200 in cash to pay the night baker for services provided to the first respondent.

(c) On 13 December 2022, the applicant was required to withdraw an amount of $102.01 from her account for the purpose of balancing the first respondent's till float.

(d) On 23 February 2023, the applicant transferred $5,000 to the second respondent's Commonwealth Bank account. The applicant states the second respondent 'asked to borrow $5,000 because the rent was due'.

(e) On 28 February 2023, the applicant transferred $4,000 to the second respondent's Commonwealth Bank account. The applicant states the second respondent asked to borrow this amount from her and believes it was used to fund the second respondent's holiday.

1. Having considered the nature of the business and the nature of the goods and services claimed to have been purchased, and in the absence of any countervailing explanation, I find the first respondent has contravened s 325 of the FW Act.
2. Having reviewed particulars detailed for the various items listed in Schedule 3 to the Statement of Claim, I calculate the amount to be $18,780,60. Taking into account the necessary deduction of $700 detailed at paragraph [44] above, the total amount owing is $18,080.60.

1. The applicant alleges the first respondent has contravened ss 535(1) and 536(1) of the FW Act, by failing to keep employment records and provide pay slips respectively. The applicant submits, and I agree, these contraventions, if found, relate only to the issue of pecuniary penalties and are more appropriately dealt with by a further hearing in relation to the imposition of such penalties. Accordingly, I reserve my findings in relation to contraventions of ss 535(1) and 536(1).

1. The applicant alleges the second respondent is liable for the contraventions of the first respondent by way of the accessorial liability regime found in s 550 of the FW Act.
2. Section 550 of the FW Act relevantly provides:

Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(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. In Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 419 ALR 30; [2024] HCA 27, the High Court held that knowledge of the 'essential matters' or 'essential facts' constituting the contravention was sufficient to find accessorial liability: see [82] per Gageler CJ and Jagot J; [149] per Gordon J; [201] and [258] per Edelman J; [339], [351] and [364] per Beech-Jones J.
2. As stated above, I have found the first respondent to have contravened the following provisions of the FW Act:

(a) sections 45 and 323(1) in relation to the underpayment of wages; and

(b) section 325 in relation to the applicant's payment of goods and services for the benefit of the first respondent or a party related to it.

1. The second respondent was, at all material times, the sole director and shareholder of the first respondent and was the person who performed all of the acts and omissions constituting the contraventions on behalf of the first respondent. The applicant submits, and I accept, the second respondent, as the controlling mind of the first respondent, had knowledge of the essential facts, was knowingly concerned in the contravention, and was an intentional participant in the contravention based on her actual knowledge.
2. Accordingly, pursuant to s 550 of the FW Act, I find the second respondent was involved in the contraventions of ss 45, 323(1) and 325 of the FW Act and order that she be held jointly and severally liable for the amounts of compensation ordered in relation to the employment claims.

1. The applicant seeks an order that the second respondent return her belongings, details of which are set out in Schedule 4 to the Statement of Claim, or pay damages in lieu of their return. In addition, the applicant seeks damages for the unlawful detention of her belongings by the second respondent.
2. By way of background, the applicant's position is that the second respondent has refused or failed to return, or allow the applicant to collect, her personal belongings that were left at the second respondent's residence following periods in which the applicant was living with the second respondent and working for the first respondent.

1. The Court's jurisdiction to hear the applicant's common law claim is conferred by s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which provides:

Jurisdiction in associated matters

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.

1. In addressing s 32 of the Federal Court of Australia Act 1976 (Cth), the Full Federal Court in Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [23] per Allsop CJ, Besanko and White JJ , said (citations omitted):

[T]he "associated jurisdiction" conferred under s 32 of the Federal Court of Australia Act is not concerned with the conferral of jurisdiction to determine non-federal matters that are said to be associated with a federal matter... It is not a synonym for "accrued" jurisdiction. The effect of s 32 is to confer jurisdiction to deal with a federal matter for which jurisdiction has not been conferred upon the Court where it is associated with another federal matter for which jurisdiction has been so conferred.

1. In Philip Morris Inc v Adam P Brown Male Fashions Proprietary Limited (1981) 148 CLR 457, Gibbs J, as his Honour then was, said at 495 to 496 (as was recently cited by this Court in Hoser v Eleftheriou [2025] FedCFamC2G 392 at [13]):

... Speaking generally it may be said that, given identity of parties, one matter is associated with another if the two matters arise out of substantially the same, or closely connected, facts ...

1. I am of the view that, as the applicant submits, the circumstances of the common law claim arise out of the same substratum of facts as the employment claims and is thereby associated with the employment claims. Accordingly, pursuant to s 134 of the FCFCOA Act, this Court has jurisdiction to make orders in relation to the common law claim.

1. A claim of this sort was discussed by the Supreme Court of New South Wales in CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 at [182]- [184] per McDougall J:

182. In short, conversion is the intentional performance of an act of dominion inconsistent with the rights of "the true owner" (to use the convenient phrase of Dixon J; I shall no longer distinguish it by quotation marks), even if the intention is merely to exercise dominion and not to deprive the true owner of dominion or property.

183. By contrast, the essence of detinue lies in a refusal to deliver up goods to a person having the immediate right to the possession of those goods. It must be shown that the detention of the goods is wrongful. That is normally shown by request or demand for their return, and a refusal to comply. See J_ohn F Goulding Pty Limited v The Victorian Railways Commissioners_ [1932] HCA 37; (1932) 48 CLR 157 at 167. But it is not necessary that there should be demand and refusal: it will be sufficient, for example, if a bailee of goods has, without permission and in default or breach of duty, parted with possession of the bailed goods so as to incapacitate itself from returning them in accordance with the terms of the bailment: Goulding at 167 again, and at 169.

184. In some circumstances, even though the bailee remains in possession of the goods, it may not be necessary to show demand before detinue can be established. In Baud Corp, NV v Brook (1973) 40 DLR (3d) 418, the Appellate Division of the Supreme Court of Alberta held that where, in an action of detinue, the defence shows clearly that the defendant would have refused to comply with a demand by the plaintiff for possession of the property, the formal making of such a demand is not a necessary part of the plaintiff's cause of action. See McDermid JA at 422-423. His Lordship concluded by expressing his opinion thus:

I am of the opinion where the defence of a defendant shows clearly that if a demand has been made on him for possession of the property, he would have refused delivery, then it should no longer be a defence to an action in detinue that no such demand was made. To require such a formality in circumstances that show it would have been futile is empty of any merit, and is reminiscent of the discarded formalities of the past century.

1. The applicant's unchallenged evidence, which I accept, is that the second respondent has ignored the applicant's demands that these belongings be returned.
2. The Court acknowledges that a number of the items listed in Schedule 4 to the Statement of Claim are belongings which are of sentimental value to the applicant.
3. The applicant submits, and I agree, that given the lack of knowledge in relation to the condition and location of the applicant's belongings, the appropriate order is for the Court to award the applicant an order for damages rather than an order for the belongings to be returned. In the context of this undefended default judgment application, to make such an order, the Court need only be satisfied there is a sufficient basis for the relief sought and proof by way of evidence of the value of each item or belonging is not required: see Fair Work Ombudsman v Klinsic Construction Pty Limited [2022] FedCFamC2G 622 at [10] per Judge Given.
4. In circumstances where I am satisfied there is a sufficient basis for the amount of damages sought, the applicant seeks an order that the second respondent be required to pay damages in respect of the applicant's belongings in the sum of $18,171.40. I will so order.

1. On the basis of the above, I have found and will so declare that:

(a) the respondents to be in default for the purposes of r 13.05 of the Rules;

(b) the first respondent contravened ss 45, 323(1) and 325(1) of the FW Act and that, pursuant to s 550 of the FW Act, the second respondent was involved in those contraventions;

(c) pursuant to s 545(1) of the FW Act, the second respondent is jointly and severally liable to pay the applicant the amounts of compensation owed in relation to the employment claims.

1. In relation to the entitlement to relief, on the basis of the above findings in relation to the employment claims and the common law claim, I have found and will so order that:

(a) pursuant to s 545(1) of the FW Act, the respondents pay as compensation to the applicant the amount of $72,192.65 comprising:

(i) outstanding wages in the sum of $48,937.85;

(ii) the non-payment of superannuation in the sum of $5,174.20; and

(iii) compensation for unreasonably requiring the applicant to spend or pay money in the sum of $18,080.60.

(b) pursuant to sections 134 and 140 of the FCFCOA Act, the second respondent pay the amount of $18,171.40 to the applicant by way of damages for detinue in respect of the applicant's belongings set out in Schedule 4 to the Statement of Claim.

1. In my view, it is appropriate that the amounts owing to the applicant in connection with the employment law claims and the common law claim are to be paid to the applicant on or by 2 July 2025. I will so order.
2. The applicant seeks a further award of that the respondents be liable to pay the applicant interest up to the judgment on the amounts of compensation order pursuant to s 547 of the FW Act. In terms of any claim for penalty, interest, and costs, the applicant seeks directions for the filing of material regarding those issues and for a further hearing date to deal with those issues. I will so order.
3. I therefore make the declarations and orders set out at the commencement of these reasons.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[1] Statement of Claim filed 9 October 2024 at [3].

[2] Statement of Claim filed 9 October 2024 at [4].

[3] Third McNally Affidavit 4 to 6 at [12] to [16].

[4] Order 4 of orders made on 11 February 2025.

[5] First McNally Affidavit, exhibit AM-1 at 45 to 82.

[6] First McNally Affidavit, exhibit AM-1 at 6 to 8.

[7] Second McNally Affidavit, exhibit AM-1 at 10.

[8] First McNally Affidavit, exhibit AM-1 at 52.