AGAPITOS v Colliers International (WA) Pty Ltd
[2020] FCCA 1536
•11 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGAPITOS v COLLIERS INTERNATIONAL (WA) PTY LTD | [2020] FCCA 1536 |
| Catchwords: INDUSTRIAL LAW – Practice and Procedure – claims for long service leave and commissions arising from employment – claim arises under the Fair Work Act 2009 by reason of reference to the National Employment Standards – application falls within the federal jurisdiction – whether a claim that does not properly plead a federal matter can be amended to raise a federal matter – application is a civil matter arising under section 566 of the Act – justiciable controversy encompassing potential Award breach claims – application is not a bare plea – claim is not colourable and made for the improper purpose of fabricating jurisdiction – claim is not trivial aspect of the controversy – no requirement to issue notices to Attorneys General of the States or Territories pursuant to s 78B of Judiciary Act 1903. |
| Legislation: Commonwealth of Australia Constitution Act (Cth), ss.75, 76 and 77 Fair Work Act 2009 (Cth), ss.566, 577 Federal Circuit Court Act 1999 (Cth), ss.8, 10 Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03, 17.02 Judiciary Act 1903 (Cth), s.78B Justices Act 1958 (Vic), ss.67, 68 |
| Cases cited: Fencott v Muller (1983) 152 CLR 570 Elders Ltd v Swinbank (2000) 96 FCR 303 Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 Janssen v Janssen (2015) 300 FLR 247; [2015] FamCAFC 168 Mandel v Miles [1967] VR 117 Moorgate Tobacco Co Ltd v. Philip Morris Ltd (1980) 145 CLR 457 National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 Prior v Hannaford [1970] VR 772 R v Justices at Carlton; Ex parte Dunstan [1964] VR 778 Re; Finlayson; Ex parte Finlayson (1997) 72 ALJR 7 |
| Applicant: | NICHOLAS AGAPITOS |
| Respondent: | COLLIERS INTERNATIONAL (WA) PTY LTD |
| File Number: | PEG 197 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 17 March 2020 |
| Date of Last Submission: | 17 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hotchkin |
| Counsel for the Respondent: | Mr Blackburn SC |
ORDERS
The questions posed for determination be answered as follows:
(a)Does the Application in its original and current form fall within federal jurisdiction?
Yes.
(b)If not, should the Application be struck out?
Not necessary to answer.
The applicant have leave to file a further amended application in the form of Attachment A to the Application in a Case filed 24 January 2020.
The applicant have leave to file submissions regarding costs limited to two A4 pages with same to be filed and served by 25 June 2020. The respondent have leave to file and serve any responding submissions limited to two A4 pages by 9 July 2020 and the question of costs will be determined on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 197 of 2018
| NICHOLAS AGAPITOS |
Applicant
And
| COLLIERS INTERNATIONAL (WA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Background
The respondent is a commercial real estate services company.
The applicant was employed by the respondent from 30 March 2009 to 23 February 2018, initially as Executive, Investment Sales and later as Director, Investment Sales.
On 11 April 2018 the applicant commenced the proceedings by filing an application (‘the Original Application’) under the Fair Work Act 2009 (Cth) (‘the FW Act’). The grounds and Orders sought were set out in Attachment A to the Original Application which contained claims regarding long service leave and commissions arising from the applicant’s employment with the respondent.
By the Original Application at [10] the applicant claimed an entitlement to long service leave ‘in accordance with the National Employment Standards and the Long Service Leave Act 1958 (WA).’ The claim for long service leave was in the sum of $48,973.46, and the balance of his claim was for unpaid commission in the sum of $419,093.40.
By its response filed on 22 May 2018, the respondent admitted the allegations in relation to an entitlement to long service leave.
An amended application was filed on 8 February 2019, which amended the claims in relation to commission, however the now admitted claim to long service leave remained in the same terms.
In correspondence from the respondent’s solicitors to the applicant’s solicitors on 29 November 2019 it was suggested that the proceeding should be discontinued as there was no federal claim such as would confer jurisdiction upon the Federal Circuit Court of Australia.
On 3 December 2019, his Honour Judge Kendall made Orders pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth) that the following questions (‘the separate questions’) be tried on 17 March 2020:
a. Does the Application in its original and current form fall within federal jurisdiction?
b. If not, should the Application be struck out?
On 24 January 2020, the applicant filed an Application in a Case seeking leave to file an amended Attachment A to his application. Amongst other things, the applicant sought Orders that he be given leave to file a Further Amended Application. The relevant amendments included:
(a)a pleading at paragraphs 9A–9G that:
(i) the respondent was required to comply with the FW Act; and
(ii) the applicant’s employment was subject to the operation of the Real Estate Industry Award 2010,
(b)removing reference to the National Employment Standards (‘NES’) in relation to long service leave at [10].
On 27 February 2020, the respondent filed submissions objecting to the amendment of the claim.
On 9 March 2020, the applicant filed submissions regarding the separate questions.
On 15 March 2020, the respondent filed submissions in reply regarding:
a)the separate questions; and
b)whether notices are required to be issued under section 78B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).
Consideration
Does the original application fall within Federal jurisdiction?
The Federal Circuit Court of Australia is a federal court created under section 8(1) of the Federal Circuit Court Act 1999 (Cth) (‘the FCC Act’).
Pursuant to section 10(1) of the FCC Act, the Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. As per section 566 of the FW Act, jurisdiction is conferred on the Court ‘in relation to any civil matter arising under the [FW] Act’.
In summary, the respondent’s argument is put this way:
(a)although the claim to long service leave pursuant to the NES was admitted by the respondent in its initial response, the applicant had never had an entitlement to long service leave pursuant to any provision of the FW Act ;
(b)because there was no other federal claim raised in the Original Application, the Court did not have jurisdiction regarding contractual claims made by the applicant and therefore the proceedings were a nullity;
(c)as the Federal Circuit Court of Australia is not a superior court, there is no capacity to cure the defect in the Original Application by amendment; and
(d)the result of this is that the applicant would have to issue fresh proceedings and the quantum of the claim would be affected by a limitation period, thereby reducing the claim by about $30,000, as was told to me by senior counsel for the respondent.
This application, which I have no doubt would have cost in excess of $30,000 in legal fees on the part of the respondent, concerns part of a claim amounting to about $30,000.
In oral submissions, senior counsel for the respondent placed considerable reliance on the Victorian case of R v Justices at Carlton; Ex parte Dunstan [1964] VR 778 (‘Justices at Carlton’) in support of the proposition that an inferior court cannot amend a proceeding which is a nullity.
The first matter that needs to be determined is whether the proceeding was a nullity in the form in which it was issued. A nullity as that expression is used in relation to legal proceedings refers to a proceeding or step in a proceeding that has no legal effect: Prior v Hannaford [1970] VR 772. For the reasons that follow, I find that it is not.
The only federal claim raised in the application was that the applicant had an entitlement to long service leave under the NES. He also made a claim to long service leave also relying on the Long Service Leave Act1958 (WA). The respondent admitted the allegations in [10] of the Original Application where reference was made to the NES, and did not apply to strike the claim out.
Whilst the proceeding was still on foot, the applicant made an Application in a Case to amend his claim, removing any reference to the federal basis for the long service leave claim, but raising federal claims regarding other parts of the claim. The substance of the claims raised have not changed as a result of the amendments, however the basis for raising a federal matter has changed.
At the time the applicant made application for leave to further amend, there was a claim on foot that had not been set aside. This Court has the power to allow a party to make an amendment at any stage of the proceeding and notwithstanding the effect may be to include a new cause of action in proceedings already on foot: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03.
The decision in Justices at Carlton concerned consideration of the types of summonses that could be issued and heard by a particular court as constituted by a particular judicial officer. In that matter, the complainant had caused a default summons to be issued in the Court of Petty Sessions seeking a specified sum of damages arising from a motor car collision.
The Court of Petty Sessions only had jurisdiction to hear complaints regarding civil debts in a liquidated sum up to a certain specified amount: section 67, Justices Act 1958 (Vic) (‘Justices Act’). Claims for damages and causes of action in tort arising under a motor vehicle collision where the value of damages did not exceed £500 were required to be heard in a court before a stipendiary magistrate. Those claims were required to be brought by way of special summons: section 68, Justices Act.
In that case, when the complaint was issued as a default summons and came before the Court of Petty Sessions, the presiding magistrate overruled an objection to jurisdiction on the basis that notices of defence had been filed. On appeal, the Supreme Court held that:
(a)the complainant’s claim was for damages and was not a claim for a liquidated sum and should have been issued as a special summons;
(b)on the face of the complaint, given that it raised a claim for damages for negligence arising from a motor vehicle collision, there was no authority to issue the default summons;
(c)the only Tribunal conferred with jurisdiction to make an Order regarding the cause of action was a stipendiary magistrate sitting without any other justice (as opposed to by a clerk of petty sessions who had authority to hear the default summons); and
(d)the filing of a defence did not confer jurisdiction on the Court of Petty Sessions and it did not have power to amend the default summons to a special summons as the default summons was a nullity.
The decision in Justices at Carlton is plainly distinguishable.
The application in this case was not invalid on its face and there is no limitation on this Court to hear and deal with matters such as was the case faced by the Court in that decision. The limitation in that case was expressed in the relevant statute. I have become aware, although not referred to this by senior counsel for the respondent, that Justices at Carlton was not followed in Mandel v Miles [1967] VR 117 (‘Mandel’) per Lush J. In that decision, it was held that a Court of Petty Sessions constituted by a stipendiary magistrate pursuant to s 68 of the Justices Act could make Orders amending a default summons to a special summons. The decision in Mandel concerned a decision by a stipendiary magistrate not to allow the amendment of a default summons to a special summons relying on Justices at Carlton.
Another difference in this case is that the substance of the applicant’s claims to commission raised federal matters which attracted jurisdiction although they were not pleaded as such.
In Moorgate Tobacco Co Ltd v. Philip Morris Ltd (1980) 145 CLR 457, Stephen, Mason, Aickin and Wilson JJ said at 476:
The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds.
(emphasis added)
I refer also to Fencott v Muller (1983) 152 CLR 570 at 604 where Mason, Murphy, Brennan and Deanne JJ said:
The concept of “matter” as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the court in Philip Morris.
I do not accept that the claim to long service leave (by reference to the NES) in the Original Application was colourable in the sense that it was brought solely for the purposes of attracting jurisdiction and not for a genuine purpose. The question of whether a person’s long service leave entitlements arise under the NES is a question of some complexity. For discussion on this, see Stewart’s Guide to Employment Law at page 275 where the learned author stated:
The NES include a standard on long service leave, but one with only limited effect. While modern awards cannot deal with the issue (s155), the effect of certain older awards is in some cases preserved by s 113. This complex provision states that national system employees must in some cases receive whatever entitlement was specified in a pre-reform (unmodernised) federal award in operation immediately before the commencement of the NES. This entitlement can only generally apply where an employer was bound by a federal award with long service leave provisions as at March 2006, and then only for employees doing work covered by that award. But if those conditions are satisfied, it does not matter that an employee might not have accrued enough service to qualify for leave under the award. The NES will still apply in such a case, precluding any claim under a more generous State or Territory statute: Maugham Thiem v Cooper (2014).
I am not satisfied that the reference by the applicant to an entitlement under the NES to long service leave was non-genuine. It may be based on a common misunderstanding of the provisions relating to long service leave.
The Original Application otherwise raised matters which would not be described as non–genuine, those being claims for unpaid entitlements which raise arguable claims of breaches of the Real Estate Industry Award 2010 and therefore claims under the FW Act. It cannot be said that those claims are so minor and incidental as to be of no consequence: c.f. Elders Ltd v Swinbank (2000) 96 FCR 303 at 308, [16]-[17] per Drummond, Sundberg and Marshall JJ.
The respondent’s assertion that a claim to long service leave pursuant to the NES where ‘no attempt is then made to advance any claim in relation to that assertion’[1] means that there is no claim at all, is answered by reference to the fact that the respondent admitted the claim to an entitlement to long service leave made pursuant to, amongst other things, the NES. Why would a party acting sensibly then provide particulars of the basis of a claim that had been admitted? The admission does not establish jurisdiction where none exists, however it may be raised in response to the submission that the applicant raised a bare assertion to found jurisdiction, or that the claim was colourable.
[1] Respondent’s submissions filed 27 February 2020 at [54].
In this case, the Court has jurisdiction to determine whether the Original Application raises a federal matter and can do so even if it had not been pleaded as a federal matter. Because the proposed Further Amended Application no longer relies on an entitlement to long service leave to raise a federal matter, it does not follow that the Original Application did not raise a federal matter such as to attract the Court’s jurisdiction. The claims to commission which are now raised as breaches of a Federal Award were made in substance in the Original Application.
The claims to commission in the Original Application are not hypothetical in nature and were a claimed entitlement at the time of the application.
I find that the Court does have jurisdiction to consider the application and leave shall be granted to file a Further Amended Application. No ground was raised that the Further Amended Application did not raise an arguable claim that was justiciable in this Court.
The decision of the Full Court of the Family Court Janssen v Janssen (2015) 300 FLR 247; [2015] FamCAFC 168 (‘Janssen’) which was relied upon by the respondent is also distinguishable. The part of that decision relied upon by the respondent related to Orders that were made in the Federal Circuit Court of Australia in Family Law proceedings three months after those proceedings had been transferred to the Family Court of Australia.
The appellant contended that the Orders made after the transfer were made without power. The Court found that there was no provision of the FCC Act which provided that an Order of the Court made in excess of jurisdiction is valid until set aside and therefore the Order is a nullity.
The respondent before me submitted that because the proceeding is a nullity this Court had no power to make an Order giving leave to amend the proceeding.
Janssen concerned the status of Orders made by this Court when there was no jurisdiction to make the Order, rather than the power of this Court to allow an amendment to proceedings before the Court. The basis of the invalidity which arose in Janssen does not arise here. Given the informality of processes by which parties may commence proceedings in this Court it would seem odd that the Court could not allow a party to amend an application where they may not have raised proper grounds for a claim which could otherwise enliven jurisdiction.
In the context of cases brought in the Migration List where no ground of judicial review is raised, Orders are regularly made by this Court granting leave to amend an application to raise proper grounds and to allow the matter to proceed. If the respondent’s submissions are correct, many such Orders would have been made without power. The effect would be that the applicant would have to commence a fresh application and seek leave to extend the time for making that application.
In relation to the question posed by the Orders of the Court dated 3 December 2019, I answer them:
(a)Yes.
(b)Not necessary to answer.
Are notices required to be served under s 78B of the Judiciary Act 1903?
The respondent contends that the Court lacked jurisdiction when the application was commenced due to the absence of a “matter”, and submits that there is a matter arising under or involving the interpretation of the Commonwealth Constitution that engages s 78B of the Judiciary Act1903 (Cth).
It is submitted that the separate questions raise the need for a determination of a matter arising under and involving the interpretation of the Constitution because the applicant relies on s 566 of the FW Act which in turn engages s 76 (ii) and s 77 (i) of the Constitution. The respondent cites National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 (‘Nautilus’) at [5]-[6] in support of that proposition.
Section 78B of the Judiciary Act 1903 (Cth) provides:
Notice to Attorneys‑General
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3) For the purposes of subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an Attorney‑General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney‑General; and
(b) is not required to be given to the Attorney‑General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney‑General of a State if he or she or the State is a party to the cause.
(4) The Attorney‑General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
The question in this case is whether the application involved a matter arising under the Constitution or involving its interpretation. It is not apparent what the Constitutional point is or which parts of the Constitution require interpretation. In making submissions, no provisions of the Constitution were referred to in argument, save the assertion that the word “matter” in section 566 of the FW Act has the same meaning as “matter” in sections 75-77 of the Constitution.
In Re; Finlayson; Ex parte Finlayson (1997) 72 ALJR 7, Toohey J said, at P-74:
In terms of s 78B, a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution.
I fail to see that this application raises a Constitutional point simply because the respondent asserts that the Original Application does not raise a “matter” and the applicant asserts that it does. The controversy is a difference of views on settled legal authorities on the factual question of whether the Original Application raised a federal matter, rather than about the interpretation of the Constitution.
Finally, the issue of whether a section 78B notice ought to be issued was raised very late (the submissions in support of the proposition were served on the day of the hearing). As was stated in the respondent’s submissions filed 15 March 2020, citing Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at [13]:
A failure to issue notices under s 78B does not render “invalid” any proceeding even if notices ought to have been given. In that sense, the “duty” which s 78B imposes is one of imperfect obligation.
I do not understand that Nautilus is authority for the proposition that a section 78B notice must be issued in every case where there is a challenge to jurisdiction in a federal court on the grounds that a federal matter is not properly raised. I do not consider notices under the Judiciary Act 1903 are required.
Conclusion
I have serious concerns that the respondent’s approach to this has not been proportionate given the amount affected by these Orders. Submissions have been very lengthy and every proposition was traversed at considerable length with reference to copious authority. I made this view clear at the hearing and gave senior counsel the opportunity to respond. I accept the point that because a legal argument does not involve a significant sum does not mean that it does not involve complexity. However, the approach to this application in terms of the length of submissions, the number of authorities referred to and the lengthy correspondence which preceded the application does seem to be entirely disproportionate to the issues at stake in this application. I assume this is to the detriment of the parties in terms of costs.
I have attempted to summarise in brief terms the arguments raised. I have not addressed certain arguments raised, in particular as to whether or not it was appropriate to answer the separate questions, because I consider that it was unnecessary to do so given the decision that I have made.
The Court will make Orders that the applicant have leave to file the Minute of Proposed Further Amended Attachment A to the Application in a Case dated 24 January 2020. A costs application was foreshadowed by the solicitor appearing for the applicant at the hearing. I will grant leave to the applicant to file submissions regarding costs limited to two A4 pages length with same to be filed and served by 25 June 2020 and the respondent to file and serve any responding submissions limited to two A4 pages by 9 July 2020 and the question of costs will be determined on the papers.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 11 June 2020
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