Amirbeaggi v Parramatta Eye Centre Pty Ltd - [2017] FCCA 1915

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMIRBEAGGI v PARRAMATTA EYE CENTRE PTY LTD & ANOR

[2017] FCCA 1915

Catchwords:
PRACTICE & PROCEDURE – Strike out application – whether pleading of unfair dismissal should be struck out.

INDUSTRIAL LAW – Whether this court has jurisdiction to determine a claim for unfair dismissal under the Fair Work Act 2009 (Cth) – whether the court would be exercising judicial power or arbitral power – whether the court has associated jurisdiction to determine a claim for unfair dismissal under the Fair Work Act 2009 (Cth) – whether a claim for unfair dismissal under the Fair Work Act 2009 (Cth) is a civil claim – whether the unfair dismissal jurisdiction of the Fair Work Act 2009 (Cth) creates rights – whether the contravention of an order for reinstatement or compensation for unfair dismissal under section 390 of the Fair Work Act 2009 (Cth) is justiciable – application dismissed.

Legislation:
Commonwealth of Australia Constitution Act 1900 (Cth)
Competition and Consumer Act2010 (Cth) – Sch.2, ss.31, 236, 18
Fair Work Act2009 (Cth), ss.323, 389, 119, 90, 385, 394, 379, 390, 539, 405, 566, 567, 545

Cases Cited:
Re: Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union (1987) 163 CLR 656
Welsh v Allblend Holdings Pty Ltd (No.2) [2010] FMCA 377
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

Applicant:

SHIRIN AMIRBEAGGI

First Respondent:

PARRAMATTA EYE CENTRE PTY LTD

Second Respondent:

DEAN POWRIE

File Number:

SYG 1591 of 2017

Judgment of:

Judge Emmett

Hearing date:

17 JULY 2017

Date of Last Submission:

31 JULY 2017

Delivered at:

Sydney

Delivered on:

17 AUGUST 2017

REPRESENTATION

Counsel for the Applicant:

Mr Andrew Fernon

Solicitors for the Applicant:

O’Neill McDonald Lawyers

Counsel for the Respondents:

Mr Bryce Cross

Solicitors for the Respondents:

Kennedys (Australasia) Pty Ltd

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1591 of 2016

SHIRIN AMIRBEAGGI

Applicant

And

PARRAMATTA EYE CENTRE PTY LTD ACN 109 045 418

First Respondent

DEAN POWRIE

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application in a Case, filed by the respondents on 5 June 2017, seeking that paragraphs 27, 28 and 29(c) of the Further Amended Statement of Claim, filed on 24 April 2017, be struck out on the basis that the court has no power to determine a claim for unfair dismissal, and that the Fair Work Commission has exclusive jurisdiction in relation to a claim for unfair dismissal. Those paragraphs are as follows:
“27.There was no valid reason to dismiss the Applicant, and the dismissal is not justifiable.
28. In the premises, the Applicant’s dismissal was harsh, unjust and unreasonable and constitutes ab “unfair dismissal” within the meaning of section 285 of the Act, such that the Applicant is entitled to compensation for loss and damages to the equivalent of 16 weeks of the Applicant’s base annual salary ($95,000), $29,230.77 and the Applicant seeks an order for payment of the said sum.
29. The Applicant claims the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 1915
Decision Date: 17 AUGUST 2017

CaseChat Overview and Summary

Amirbeaggi (the applicant) brought proceedings against Parramatta Eye Centre Pty Ltd (the respondent) seeking to strike out the respondent's pleading of unfair dismissal. The matter came before Emmett J of the Supreme Court of New South Wales.

The central legal issues before the court were whether the Supreme Court of New South Wales possessed jurisdiction to determine a claim for unfair dismissal under the *Fair Work Act 2009* (Cth). This involved considering whether such a determination would constitute the exercise of judicial or arbitral power, whether the court had associated jurisdiction, and whether an unfair dismissal claim was a civil claim that created justiciable rights. The court also considered whether the contravention of an order for reinstatement or compensation for unfair dismissal under section 390 of the *Fair Work Act 2009* (Cth) was justiciable.

Emmett J reasoned that the jurisdiction to hear and determine claims for unfair dismissal under the *Fair Work Act 2009* (Cth) was vested in the Fair Work Commission and the Federal Court of Australia, not the Supreme Court of New South Wales. His Honour concluded that the jurisdiction conferred by the *Fair Work Act 2009* (Cth) in relation to unfair dismissal was not a civil jurisdiction that could be exercised by a State Supreme Court. Consequently, the application to strike out the pleading of unfair dismissal was dismissed.

Orders