Andrade v Goodyear and Dunlop Tyres (Aust) Pty Ltd
[2018] FCCA 634
•16 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDRADE v GOODYEAR & DUNLOP TYRES (AUST) PTY LTD | [2018] FCCA 634 |
| Catchwords: INDUSTRIAL LAW – Application for leave to join three additional respondents to proceedings under the Fair Work Act 2009 (Cth) – whether applicant can proceed against proposed additional respondents where no Fair Work Commission certificate was issued in relation to dismissal dispute – jurisdictional objection – discretionary factors – application for leave refused. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 340, 342, 361, 365, 366, 367, 368, 369, 370, 539, 544, 545, 550, 570 Federal Circuit Court Rules 2001 (Cth), rr.11.02, 45.06 |
| Cases cited: Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors [2015] FCCA 2632; (2015) 302 FLR 121 Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238 Andrade v Goodyear & Dunlop Tyre (Aust) Pty Ltd [2017] FCCA 497 |
| Applicant: | RUI ANDRADE |
| Respondent: | GOODYEAR & DUNLOP TYRES (AUST) PTY LTD |
| File Number: | SYG 1749 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 30 November 2017 |
| Date of Last Submission: | 19 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Easton |
| Solicitors for the Applicant: | Carroll & O'Dea Lawyers |
| Counsel for the Respondent: | Mr Donaghey |
| Solicitors for the Respondent: | Hentys Lawyers |
| Counsel for Mr Hamilton: Solicitors for Mr Hamilton: Counsel for Mr Beh: Solicitors for Mr Beh: Counsel for Mr Cross: | Ms Siemensma Kennedys Law Ms Brown KHQ Lawyers Mr Donaghey |
| Solicitors for Mr Cross: | Hentys Lawyers |
ORDERS
The Applicant’s application for leave to join David Hamilton, Marcus Beh and Robert Cross as respondents to the proceedings be refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1749 of 2015
| RUI ANDRADE |
Applicant
And
| GOODYEAR & DUNLOP TYRES (AUST) PTY LTD |
Respondent
REASONS FOR JUDGMENT
The Application
This is an application filed by Mr Andrade on 10 November 2017 seeking leave to join 3 individuals (Mr Hamilton, Mr Beh and Mr Cross) as additional respondents in proceedings he commenced on 25 June 2015 against Goodyear & Dunlop Tyres (Aust) Pty Ltd (Goodyear). The leave application was supported by an affidavit of 10 November 2017 of Veronica Feng Lee, the solicitor with carriage of the matter for the Applicant. Mr Andrade also relies on affidavits of Ms Lee of 29 November 2017 and 1 December 2017.
Under r.11.02(1) of the Federal Circuit Court Rules 2001 (Cth) (the Rules) a party to a proceeding may include any person as a party by:
a) naming the person as a party in the application, response or reply; and
b) serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.
Rule 11.02(2) provides that “[a] party may not include a person as a party after the first court date without the leave of the Court”. The first court date in these proceedings was on 21 July 2015. Hence leave of the court was necessary.
For the reasons that follow I am of the view that leave should not be granted.
Background
In its original form, as filed on 25 June 2015, Mr Andrade’s Statement of Claim asserted, in essence, that he had been underpaid in various respects, including superannuation, by his then employer, Goodyear, in breach of either the General Retail Industry Award 2010 or the Vehicle Manufacturing, Repair, Services and Retail Award 2010. These matters were said to constitute contraventions of s.45 of the Fair Work Act 2009 (Cth) (the FW Act). Mr Andrade sought declarations, compensation and penalty orders against Goodyear.
Thereafter the matter had a somewhat protracted history. Goodyear sought to strike out part of the Statement of Claim. Mr Andrade was given leave to file an amended Statement of Claim to address a minor pleading deficiency (see Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238). In his Amended Statement of Claim filed on 1 March 2016 Mr Andrade raised an additional claim, asserting that adverse action had been taken against him by Goodyear between June 2015 and December 2015 for reason of his exercise of workplace rights (being a complaint to the Fair Work Ombudsman alleging underpayment of wages and the initiation of these proceedings). He sought further declarations, compensation and penalties against Goodyear. Goodyear filed a defence. The parties attended a mediation on 12 August 2016. The matter was not resolved.
Mr Andrade sought, and was granted, leave to file a Further Amended Statement of Claim in August 2016. The Further Amended Statement of Claim filed on 13 October 2016 extended the adverse action claim against Goodyear to include action said to have occurred between May and July 2016. He sought further declarations, compensation and penalties against Goodyear. Goodyear had already filed an Amended Defence to the foreshadowed Further Amended Statement of Claim.
On 13 October 2016 I made orders for the filing of evidence and listed the matter for hearing on 17 July 2017.
Goodyear unsuccessfully sought to have part of a subpoena issued by Mr Andrade set aside (see Andrade v Goodyear & Dunlop Tyre (Aust) Pty Ltd [2017] FCCA 497). Both parties filed affidavits.
On 13 June 2017 Goodyear terminated Mr Andrade’s employment. On 16 June 2017 I vacated the July 2017 hearing dates at the request of counsel for Mr Andrade who indicated that he would seek to amend his pleading to include a claim in relation to the dismissal. On 14 July 2017 the matter was listed for hearing as a five day matter commencing on 19 March 2018.
On 28 July 2017 I made orders by consent giving Mr Andrade leave to file and serve a Second Further Amended Statement of Claim by 1 September 2017 and revising the timetable leading to the March 2018 trial date. There was no suggestion at this time that leave would be sought to join any additional parties.
On 1 September 2017 Mr Andrade filed a Second Further Amended Statement of Claim (the SFASC). He maintained the claims in the earlier pleading. It was also asserted that Goodyear took adverse action against Mr Andrade in “investigating” an incident said to have occurred on 19 April 2017 and also in dismissing him from his employment on 13 June 2017. The dismissal was described as “the Second 2017 Contravention”.
In addition, the SFASC named Messrs Hamilton, Beh and Cross as Respondents, despite the fact that leave had not been sought to join them as parties. Relevantly, in the SFASC it was pleaded that Mr Hamilton, Mr Beh and Mr Cross, described as the Second, Third and Fourth Respondents respectively, had each been involved in the so-called “Second 2017 Contravention” (the claimed dismissal contravention). The basis for their alleged involvement in the claimed dismissal contravention was pleaded. There was no pleading of any involvement in the claimed “investigation” contravention.
Declarations were sought that Goodyear had subjected Mr Andrade to an “investigation” in contravention of s.340 of the FW Act and that it had dismissed him in contravention of s.340 of the FW Act. Compensation from and the imposition of penalties on Goodyear were sought in relation to all pleaded contraventions. However in the SFASC the only orders sought against Mr Hamilton, Mr Beh or Mr Cross were declarations that they had “also contravened section 340 of the FW Act”.
Mr Andrade’s Application to the Fair Work Commission
Also on 1 September 2017, Mr Andrade applied to the Fair Work Commission (the FWC) under s.365 of the FW Act for it to deal with the dismissal dispute. The FWC application named Goodyear and each of Messrs Hamilton, Beh and Cross as respondents. It was alleged that Messrs Hamilton, Beh and Cross had aided, abetted, counselled or procured a contravention of s.340 of the FW Act by Goodyear said to consist of the summary dismissal of Mr Andrade on 13 June 2017, or to have been concerned in or a party to or to have conspired with others to effect that claimed contravention. The FWC application referred to and annexed a copy of the SFASC.
The application to the FWC was not lodged within 21 days after the dismissal took effect as required under s.366(1)(a) of the FW Act. Mr Andrade sought an extension of time from the FWC under s.366(1)(b) of the FW Act. The application for an extension of time was opposed. Goodyear’s solicitors also represented Messrs Hamilton, Beh and Cross for the purposes of the FWC application.
On 23 October 2017 Deputy President Gooley dismissed Mr Andrade’s FWC application, finding that the lack of a reasonable explanation for the delay in lodging the application outweighed factors in favour of the grant of an extension of time: see Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd & Ors [2017] FWC 5393.
Gooley DP found (at [53]) that “[a] deliberate decision was made to ignore the time limit set by the Act” and (at [54]) rejected the proposition that the decision in that respect was a sensible and logical course of conduct, stating that “[o]ne only needs to look at what would have happened if the application had been filed within time, to see why (sic) the absurdity of this submission”. As the extension of time was not granted the FWC did not deal with the dismissal dispute pursuant to s.368 of the FW Act. Critically, this meant that the FWC did not issue a certificate under s.368(3) of the FW Act to the effect that it was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been or were likely to be unsuccessful.
Mr Andrade’s other actions prior to filing the leave application
It appears from Ms Lee’s affidavit of 10 November 2017 and the documents annexed thereto that the Applicant may have initially proceeded on the basis that Messrs Hamilton, Beh and Cross had been joined to these proceedings simply by virtue of the fact that they had been named in the SFASC.
However by letter of 4 October 2017, Goodyear’s solicitors drew the status of the FWC application and the impact of this application on compliance with then current court orders to the attention of my chambers. Goodyear’s solicitors also foreshadowed that, depending on the outcome of the FWC application, Mr Andrade may need to amend his pleading or seek leave to join the “Respondents” (obviously a reference to Messrs Hamilton, Beh and Cross) pursuant to the Rules of this Court.
Mr Andrade’s solicitors then sought to obtain the consent, not only of Goodyear, but also of Messrs Hamilton, Beh and Cross to joining them as respondents to the proceedings. In the course of correspondence in this respect, on 2 November 2017 Mr Andrade’s solicitors sent the solicitors for Goodyear and each of Mr Hamilton, Mr Beh and Mr Cross a copy of what was described as a Third Further Amended Statement of Claim (the first proposed TFASC) which they intended to seek leave to file. Mr Andrade’s solicitors also foreshadowed seeking costs from Messrs Hamilton, Beh and Cross under s.570(2)(b) of the FW Act if they did not consent to being joined as respondents to the proceedings.
The first proposed TFASC of 2 November 2017 (which was not filed as such, but was attached to correspondence annexed to Ms Lee’s affidavit of 10 November 2017) maintained the pleading of the claims against Goodyear and against Messrs Hamilton, Beh and Cross that were in the SFASC (including a declaration that “the Second, Third and Fourth Respondents also contravened section 340 of the FW Act”), but the pleas for a declaration that Goodyear dismissed Mr Andrade in contravention of s.340 of the FW Act and for an order that Goodyear compensate Mr Andrade for the loss and damage arising from the dismissal were omitted. In other words, this first proposed TFASC made very minor amendments to the 1 September 2017 SFASC. It did not seek any orders for compensation or penalties in relation to Messrs Hamilton, Beh or Cross and the only claimed “involvement” on their part that was particularised was in relation to the claimed dismissal contravention.
The Leave Application
As indicated, on 10 November 2017 Mr Andrade filed the leave application. On 14 November 2017 the solicitors for Mr Andrade asked the court to make “consent” orders in chambers joining Messrs Hamilton, Beh and Cross as parties to the proceedings and making consequential directions, in circumstances where Goodyear had consented to such orders. It was foreshadowed that if leave to join the proposed additional respondents was granted on this basis the application for leave would be withdrawn.
I was of the view that an order joining Messrs Hamilton, Beh and Cross should not be made on the basis proposed by Mr Andrade; that it was necessary for him to obtain the leave of the court and that the proposed additional respondents ought to be given the opportunity to be heard in that respect. The matter was listed for directions on 30 November 2017. Messrs Hamilton, Beh and Cross were advised of the listing.
On 30 November 2017 there were appearances for each of Mr Andrade, Goodyear, Mr Hamilton, Mr Beh and Mr Cross. All the proposed additional respondents opposed leave being granted and sought to be heard in that respect.
Counsel for Mr Andrade confirmed my understanding that the only substantive difference between the SFASC and the first proposed TFASC was that the latter did not press claims against Goodyear in relation to the dismissal in the absence of a s.368(3) certificate from the FWC. I also understood him to indicate that the claim against the three proposed additional respondents related only to their alleged conduct as accessories in relation to Mr Andrade’s general protections claim relating to the dismissal. Mr Andrade’s counsel stated that it was “an oversight” that penalties and compensation had not been sought against the proposed additional respondents.
Two of three proposed additional respondents raised as a preliminary issue a submission that the court had no jurisdiction to entertain the foreshadowed claims against them in the absence of any FWC certificate under s.368(3) of the FW Act. I considered it appropriate that Mr Andrade file a copy of the amended proposed TFASC on which he sought to rely (incorporating the foreshadowed application for penalties and compensation in relation to Messrs Hamilton, Beh and Cross) as an annexure to an affidavit and that the proposed additional respondents and the parties be given the opportunity to make written submissions in relation to the leave application in light of the proposed pleading. It was agreed that the matter should proceed on this basis and that the leave application should be dealt with on the papers.
The Amended Proposed TFASC
A copy of the amended proposed TFASC was annexed to Ms Lee’s affidavit of 1 December 2017. That document characterised the alleged adverse action of Goodyear between June 2015 and July 2016 as “Pre-dismissal” adverse action; repeated the allegation that Goodyear also took adverse action against Mr Andrade in investigating an incident of 19 April 2017; repeated the pleading of Mr Andrade’s dismissal by Goodyear (again described as “the Second 2017 Contravention”); and repeated the particulars of the claims that Mr Hamilton, Mr Beh and Mr Cross were involved in the claimed Second 2017 Contravention. However the amended proposed TFASC omitted the plea for a declaration that Goodyear subjected Mr Andrade to an investigation in contravention of s.340 of the Act and a declaration that Messrs Hamilton, Beh and Cross “also” contravened s.340 of the FW Act. Instead, two declarations were sought in relation to Messrs Hamilton, Beh and Cross: first a declaration that they contravened s.340 of the FW Act by virtue of Goodyear subjecting Mr Andrade to an “investigation” in contravention of s.340 of the FW Act and their being involved in the “contraventions” (sic) for the purposes of s.550 of the FW Act; and second a declaration that they contravened s.340 of the FW Act by virtue of Goodyear dismissing Mr Andrade in contravention of s.340 of the FW Act and their being involved in the “contraventions” (sic) for the purposes of s.550 of the FW Act.
This was the first occasion on which it was pleaded that the proposed individual respondents were involved in a contravention (or contraventions) consisting of an investigation by Goodyear. There is no proposed pleading in the amended proposed TFASC of any basis for their alleged involvement in relation to the investigation.
Interestingly, in the amended proposed TFASC compensation is sought from Goodyear, as well as from the proposed individual respondents, “for the loss and damage arising from the Dismissal”, notwithstanding the absence of a FWC certificate. This may be a typographical error or an oversight.
As was the case in the first proposed TFASC, no compensation is sought from anyone in relation to the claimed “investigation” contravention. The amended proposed TFASC seeks orders that penalties be imposed only on the proposed individual respondents in respect of both the claimed investigation and dismissal contraventions. No such penalties are sought in relation to Goodyear.
The parties and the proposed parties made written submissions after the amended proposed TFASC was filed. Each of the proposed individual respondents opposed the joinder application. Notwithstanding that in November 2017 Goodyear had agreed to consent orders proposed by Mr Andrade granting leave to join the individual respondents, Goodyear now also opposes the grant of leave.
In essence, as discussed further below, Mr Hamilton and Mr Beh opposed the grant of leave on the basis that the court had no jurisdiction to entertain the claim in the amended proposed TFASC against the asserted accessories in the absence of a certificate issued by the FWC under s.368(3) of the FW Act (see s.370 of the FW Act).
Mr Beh drew a distinction between the claimed dismissal contravention (in relation to which the court was said to have no jurisdiction) and the claimed investigation contravention. It was also submitted that Mr Andrade had not established a sufficiently arguable case that Mr Beh was sufficiently aware of all the relevant facts going to the claimed contraventions and that with that knowledge he committed acts or omissions amounting to involvement (in the s.550 sense), in particular in relation to the claimed investigation contravention. It was pointed out that the amended proposed TFASC did not particularise or plead any facts going to the basis on which it was said Mr Beh was involved in the claimed investigation contravention. He also raised discretionary issues.
Mr Cross opposed the grant of leave on the basis of discretionary factors, in particular Mr Andrade’s unexplained delay in making the leave application after his dismissal, the width of the case pleaded against Mr Cross in the amended proposed TFASC and the concern that he would be prejudiced contrary to the privilege against self-incrimination in circumstances where he had sworn an affidavit filed by Goodyear in these proceedings on 12 May 2017.
Goodyear objected to the joinder of Mr Cross and the other individual respondents on the basis of the prejudicial effect upon it of the proposed joinder.
Mr Andrade’s Submissions
Before elaborating on the objections, it is convenient to outline the basis on which Mr Andrade submitted that leave to join Messrs Hamilton, Beh and Cross should be granted.
Mr Andrade submitted that there were two fundamental questions for the court to determine: whether he could press a claim against the three alleged accessories in relation to claims that it was conceded he could not press against Goodyear, the alleged primary contravener, in the absence of a s.368(3) certificate; and, if so, whether the court should exercise its discretion to join the alleged accessories to the current proceedings.
In relation to the first issue Mr Andrade contended that it was unremarkable for the court to hear claims against alleged accessories where the proceedings did not include a claim against a primary contravener and suggested that a declaration against an accessory was not dependent on there being a declaration against a primary contravener, although it was acknowledged that it was dependent on a finding on the basis of evidence proved to the satisfaction of the court that the alleged primary contravener had engaged in conduct in contravention of the relevant provision (see Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors [2001] FCA 187; (2001) 110 FCR 1 at [47] and Fair Work Ombudsman v Dawe [2013] FMCA 94 at [11]).
It was also submitted that the ongoing existence of a primary contravener was no barrier to proceeding only against alleged accessories (see Matheson Engineers Pty Ltd & Anor v El Raghy & Ors [1992] FCA 619; (1992) 37 FCR 6 at [11]); that a statutory bar to proceedings against a primary contravener (such as in s.500 of the Corporations Act 2001 (Cth)) was no barrier to proceeding against an accessory; and that claims against accessories were each separate causes of action (Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; (2000) 174 ALR 688 at [47]).
It was explained that in this case it was proposed to allege that by operation of s.550 of the FW Act each of the proposed individual accessories was taken to have contravened s.340 of the FW Act which is a civil remedy provision.
The Applicant submitted that it was relevant that applications for orders in relation to contraventions of civil remedy provisions of the FW Act may be made within 6 years after the date of contravention (see s.544). In this case the alleged contraventions by the accessories were said to have occurred in 2017. It was contended that, absent any specific provision in the FW Act to the contrary, the Applicant could commence proceedings against the alleged accessories as late as 2023. Mr Andrade did not address the interaction of s.370(a)(ii) and s.544 of the FW Act, except insofar as he acknowledged that he was prevented from making a “general protections court application” as defined in s.368(4) of the FW Act against Goodyear by operation of s.370 of the FW Act.
Mr Andrade submitted that the court had jurisdiction against Messrs Hamilton, Beh and Cross as accessories because such cause of action “arises from” or “under” s.550(1) of the FW Act. Reliance was placed on the remarks of Judge Jarrett in Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors [2015] FCCA 2632; (2015) 302 FLR 121 at [7]-[8] as follows:
As to the first matter, I am satisfied the court has jurisdiction for these reasons. First, the action against the second, third, fourth and fifth respondents arises from s 550(1) of the Fair Work Act, a section which is not found in Pt 3–1 of Chapter 3 of the Fair Work Act or in Chapter 3 at all but which is found in Chapter 5 (sic) of the Act. The dispute that is referred to in ss 371, 365 and 369 of the Fair Work Act is a dispute which arises under Chapter 3 of the Fair Work Act. It is not a reference to a dispute which might arise under any other provision of the Act.
There are many other provisions of the Act that have the potential to give rise to disputes between parties to litigation in this court, in the Federal Court and other places that are not found in Chapter 3. Section 550(1), to the extent that it creates a cause of action, creates a cause of action which is not captured by s 371 of the Act although, as a necessary condition of success on a claim based under s 550(1) of the Act, it is necessary to demonstrate a contravention of the Act. But as I have indicated, there are many provisions of the Act which might be contravened, not just those in Chapter 3.
It was pointed out that the liability of an accessory was not the same liability as that of a primary contravener and that an act of an accessory may in law be both the act of a corporate primary contravener and the separate act of an individual (see Hamilton v Whitehead [1988] HCA 65 at [13]; (1988) 166 CLR 121 at 128).
In effect, Mr Andrade accepted that he could not “now” prosecute his claim against Goodyear “in relation to the dismissal” but suggested that his proposed claim against Messrs Hamilton, Beh and Cross was not a general protections court application and hence that a certificate under s.368 of the FW Act was not a prerequisite to the proposed action. It was submitted that while the success of such claim would be dependent on demonstrating a contravention of s.340 of the FW Act, it was not dependent on the Applicant succeeding in a general protections court application. It was suggested that “this” ought to be “uncontroversial” in light of Spender J’s findings in ACCC v Black on White at [48], although I note that that case concerned whether a declaration or a finding of contravention should be made in circumstances where the first respondent had ceased to exist in proceedings against other respondents under the Trade Practices Act 1974 (Cth). It did not relate to proceedings under the FW Act or the meaning of “a general protections court application”.
On this basis Mr Andrade submitted that the only issue for the court was whether it should exercise its discretion to allow the claim against accessories to be joined to the primary claim or whether Mr Andrade ought to prosecute those claims separately. The relevant principles were said to be well settled (see Commonwealth Bank of Australia v Peto (No.2) [2006] FCA 516; (2006) 152 FCR 362 at [26]; McLaren v Retail Information Systems Pty Ltd [2011] FMCA 716; Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Anor [2016] FCCA 2499; Fewin Pty Ltd v Burke [2016] FCA 503 at [36]-[48] per Markovic J summarising Comcare v John Holland Rail Pty Ltd [2009] FCA 660; (2009) 185 IR 191; Warner Music Australia Ltd v Swiftel Communications Pty Ltd [2005] FCA 1127; (2005) 67 IPR 27; and Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588).
Mr Andrade also contended that joinder was “not only sanctioned but encouraged by the Court’s rules in certain circumstances”. In support of this proposition he referred to a decision of the NSW Court of Appeal in relation to a differently worded provision as to joinder in the then applicable Supreme Court Rules 1970 (NSW) (see Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38).
Mr Andrade submitted that the most obvious reason leave to join Messrs Hamilton, Beh and Cross should be granted was that all of his claims arose from the one period of employment. It was contended that if joinder was granted then “clearly” the court could completely and finally determine all matters in dispute in relation to his employment.
There was also said to be substantial factual commonality in the nature of the issues to be determined. This contention was put on the basis that Mr Andrade alleged that Goodyear had contravened an industrial award and that after he exercised a workplace right by commencing these proceedings in June 2015, Goodyear took the so-called “pre-dismissal” adverse action against him because he had commenced and pursued these proceedings. In addition, it was claimed that in the evidentiary phase of the proceedings in early 2017 Goodyear took adverse action by way of undertaking a so-called “investigation” in contravention of the general protections provisions of the FW Act in relation to which the Applicant now (in the amended proposed TFASC) sought orders against the alleged accessories. It was also said to be relevant that in “close proximity” to the previous proposed hearing dates, Goodyear had dismissed Mr Andrade from his employment allegedly because he had continued these proceedings or for reasons that included the fact that he had continued these proceedings and that proposed orders were sought against the alleged accessories in relation to this alleged contravention by Goodyear.
Mr Andrade submitted that while there were “nuanced differences” between the claims, the Court’s rules should be liberally construed so that all disputes relating to the one subject matter may be dealt with at the one time.
The Applicant also suggested that it was important that the proposed new parties could not have been named as parties from the beginning or joined prior to the first court date, because the alleged conduct took place more than 18 months after the commencement of the proceedings (see Crocker v Toys’R’Us at [37]-[38]).
Insofar as Mr Beh asserted that Mr Andrade had failed to plead a sufficiently arguable case against him in the amended proposed TFASC, it was submitted that in order to grant leave to join Mr Beh the court need only be satisfied there was a sufficient basis on which the Applicant could obtain any of the relief sought against Mr Beh (see Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [25]). Mr Andrade submitted that the criticism of his case against Mr Beh in relation to the alleged investigation contravention must “fall away” if it was accepted that he did not require a s.368 certificate to pursue a claim founded on s.550 in relation to the dismissal, because once an arguable case was established in that respect the court did not also need to find an arguable case in relation to the claimed investigation contravention.
In any event, it was submitted that the amended proposed TFASC “relevantly” alleged certain matters against Mr Beh in relation to his employment by Goodyear as an HR consultant; his receipt of the First and Second 2017 complaints; the fact of Goodyear conducting an “investigation” from 19 April 2017 on; that in May 2017 Mr Beh was informed by the investigator of the Applicant’s Third 2017 complaint; that (as pleaded in paragraph [77] which addresses the basis for Mr Beh’s claimed involvement in the “Second 2017 Contravention”) Mr Beh collected information adverse to the Applicant and participated with Mr Cross and Mr Hamilton in a practice whereby the Applicant’s conduct in the workplace was unreasonably monitored and monitored in a way that was different to the way in which the conduct of comparable employees was monitored by the First Respondent; that Mr Beh prepared a report for Mr Hamilton that recommended that the Applicant be dismissed from his employment; and that Mr Beh omitted facts that he knew or reasonably ought to have known as a human resources professional were mitigating factors in the Applicant’s favour, including matters arising from the “investigation”.
As to the issue of his delay in seeking leave to join the proposed respondents after his dismissal, Mr Andrade submitted that such concerns (as raised by Mr Cross) must also necessarily “fall away” in light of his analysis of the legislation and what was described as the “reality” that he could launch fresh proceedings against the alleged accessories at any time.
Mr Andrade described the suggestion that Mr Cross had lost time and the opportunity to make arrangements in relation to the claim against him as “puzzling”. It was submitted that this must be understood as some kind of hypothetical loss, having regard to the absence of any evidence in relation to any actual loss suffered by Mr Cross in circumstances where Mr Cross was said to have had the benefit of legal representation from at least 4 October 2017 in that all four “respondents” were represented by Hentys Solicitors before the FWC.
Mr Andrade also took issue with the suggestion that Mr Cross was in a “difficult position” in relation to his privilege against exposure to civil penalty. Such a claim was said to require “careful scrutiny”. It was suggested that at the time Goodyear had filed Mr Cross’s affidavit in these proceedings, Mr Cross presumably knew that Mr Andrade had made allegations “in relation to general protections”; that there were no allegations against Mr Cross personally in relation to the pre-dismissal contraventions; that Mr Cross had not filed a defence in relation to the claims against him; and that Goodyear had not filed any affidavit from Mr Cross in relation to matters about which there were proposed claims against Mr Cross personally.
It was also suggested that if Mr Cross was not joined to these proceedings and Mr Andrade had to press his claim against Mr Cross separately, Mr Cross would still be in precisely the same apparent “difficult position” and have the same alleged “extreme” jeopardy in facing an application for orders for declaratory relief, compensation and penalties.
Submissions opposing leave
Counsel for Mr Hamilton provided detailed written submissions. Except that these submissions do not directly address the claimed investigation contravention (discussed below) I find them persuasive in relation to the jurisdictional objection to joinder and have set them out in some detail. He opposed the grant of leave on the basis that the court had no jurisdiction to entertain the proposed claim against him as an alleged accessory in the absence of a certificate issued by the FWC under s.368(3) of the FW Act.
It was pointed out that Mr Andrade had required an extension of time pursuant to s.366(1)(b) of the FW Act to apply to the FWC to deal with “the dispute” (s.365), as his 1 September 2017 application to the FWC was not lodged within 21 days of his dismissal. The application for an extension of time was refused and the FWC application was dismissed on 23 October 2017. Mr Hamilton submitted that this meant that the FWC’s jurisdiction to deal with the dismissal dispute under s.368 was not enlivened and hence that it did not deal with the dismissal pursuant to s.368 and did not issue a s.368 certificate. Such a certificate was said to be a jurisdictional prerequisite to the Court’s jurisdiction in relation to the dismissal dispute.
Mr Hamilton explained these contentions. It was submitted that s.365 of the FW Act (which entitles a person who has been dismissed and alleges the dismissal was in contravention of Part 3-1 to apply to the FWC to deal with “the dispute”) was drafted in such a way that the term “dispute” was to be construed as a dispute concerning the person’s dismissal allegedly in contravention of Part 3-1 of the Act (see Shea v TruEnergy Services Pty Ltd (No.1) [2012] FCA 628; (2012) 204 FCR 456 per Dodds-Streeton J at [55]). As her Honour noted in Shea (No 1) at [55], the “dispute” referred to in s.365 is not defined elsewhere in the FW Act, but is simply assumed to “co-exist” with a person’s dismissal allegedly in contravention of Part 3-1. It was submitted that “the dispute” should not otherwise be narrowly construed (see Shea (No 1) at [63]-[69]) and did not have to coincide precisely with the content of the FWC application. It was also pointed out that neither s.366 or s.368 defined, identified or described “the dispute” differently from s.365 (see Shea (No.1) at [69]).
On this basis Mr Hamilton’s submission was to the effect that the scope of the “dispute” for the purposes of s.365 of the FW Act included not only the employer but also those individuals who acted on behalf of the employer and were alleged to have contravened the same general protections provisions in respect of the person’s dismissal, irrespective of whether those individuals were named as parties to the FWC application. In other words, once the FWC’s jurisdiction was engaged, it was engaged in relation to the entire dispute, irrespective of which entities or individuals were named as parties to the FWC application. In any event, it was submitted that in this case there could be no doubt that Mr Hamilton was part of the dismissal dispute, having been named as a respondent to the s.365 application which was dismissed by the FWC. However, as the application was dismissed the FWC did not deal with the dispute and the obligation on the FWC to issue a certificate under s.368(3) did not arise.
Reference was made to s.370 of the FW Act under which a person “must not” make a general protections court application “in relation to the dispute” unless the two specified conditions in s.370(a) are satisfied. Those requirements are that the FWC has issued a s.368(3) certificate in relation to the dispute and that the application is made within 14 days after the certificate issued, or within such period as the court allows.
The proposed claim against Mr Hamilton was said to be a general protections court application as defined in s.368(4) and referred to in s.370, being “an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part of the Act” (in this case, an alleged contravention of s.340 which is in Part 3-1 of the FW Act). It was submitted that s.368(4) did not confine the persons or entities against whom such orders for a contravention of Part 3-1 of the FW Act may be sought.
Accordingly, Mr Hamilton submitted that Mr Andrade had to comply with s.370(a)(i) and (ii) in order to engage the court’s jurisdiction and that as this had not occurred this deprived the Court of jurisdiction to deal with “the dispute”. Such want of jurisdiction was said to extend to the proposed action against Mr Hamilton, who was part of the “dispute”, including being a party to the dismissed FWC application.
In support of the proposition that an FWC certificate was a precondition to the court’s jurisdiction, Mr Hamilton pointed out that in Shea (No.1) Dodds-Streeton J had held that a certificate under the then s.369 of the FW Act (now s.368(3)) was a precondition to the court’s jurisdiction to deal with a dismissal dispute (at [26]). Her Honour had referred in that context to the statement to the same effect in Newman v East Yarra Friendly Society Pty Ltd t/as My Chemist Pharmacy [2011] FCA 1262 at [5] per North J. This was said to illustrate that, except in circumstances within the present s.370(1)(b) (which applies where an interim injunction is sought), “[t]he certificate is thus… a precondition of the making of a general protections court application in relation to the dispute. The Court has no jurisdiction to entertain such an application absent the certificate” (at [61]).
In Shea (No.1) Dodds-Streeton J also found that provided the court’s jurisdiction was engaged by the issuing of a certificate, the reference to a “dispute” in s.365 and the forerunner to s.370 did not, on its proper construction, require the court and the FWC applications to be identical (at [77] and [91]). Indeed, as her Honour also stated in Shea (No.1) (at [70]), even if “the dispute” was so limited, a general protections court application made “in relation to” the dispute could validly include new, additional or different claims from those in the FWC application because the phrase “in relation to” (in the forerunner to s.370) was a phrase of “wide import” (at [70]-[75] and see [91]-[92]).
Reliance was also place on the findings of Cowdroy J in Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94. In that case no certificate had been issued by the then Fair Work Australia. Cowdroy J found that the forerunner to s.370 (which also used the word “must”) established a mandatory prerequisite for a general protections court application, such that the Federal Court could not entertain such an application without a certificate.
His Honour pointed out (at [28]-[31]) that there was authority that “must” was a word of absolute obligation, expressing necessity, and found that s.371(1) (now s.370 of the FW Act) prohibited absolutely the making of a general protections court application without a s.369 (now s.368(3)) certificate. Cowdroy J found (at [31]) that this accorded with the decision of North J in Newman and also with the approach taken in cases such as Poole v Rod Baker & Co [2011] FMCA 357; (2011) 207 IR 264; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd [2011] FMCA 535; (2011) 211 IR 250; and Cavar v Nursing Australia [2011] FMCA 929.
Mr Hamilton submitted that the decisions in Shea (No 1), Newman and Hill were binding on this court and that s.370 prohibited absolutely a person from making a general protections court application under Part 4-1 of the FW Act unless the conditions therein had been satisfied, one of which was that the Applicant must obtain a s.368(3) certificate to enliven the court’s jurisdiction.
Reference was also made to r.45.06 of this Court’s Rules, which requires an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the FW Act to be accompanied by a certificate issued by the FWC (unless the application includes an application for an interim injunction). This rule was said to reflect the requirement of s.370 of the FW Act that a certificate under s.368(3) is a necessary precondition for the making of a general protections court application.
Mr Hamilton conceded that once the court’s jurisdiction had been enlivened then the court may permit an applicant to expand his or her claims against an existing party or to add new parties to the proceeding as considered in Shea (No.1). Indeed, Mr Hamilton also acknowledged that if a s.368(3) certificate was obtained, an applicant might then decide to proceed only against an individual alleged to be involved in the dispute, for example because the employer had gone into liquidation or had been deregistered, or on the basis that such an individual was “involved” in a contravention of Part 3-1 by the employer. Provided the applicant had obtained a certificate in respect of “the dispute”, he or she could proceed against such individual in a general protections court application, irrespective of whether the individual in question was named on the FWC certificate (see Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [33]).
However it was contended that because the jurisdictional preconditions in s.370(a)(i) and (ii) had not been met in this case, the court had no jurisdiction to entertain a general protections court application against Mr Hamilton or the other proposed respondents in respect of the dismissal dispute.
Mr Hamilton’s submissions also canvassed a number of decisions of this court which considered s.370 of the FW Act. Mr Hamilton referred to the fact that in Poole v Rod Baker and in Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231 it had been held that a certificate was a jurisdictional prerequisite to the court’s jurisdiction to deal with a general protections court application. It was pointed out that in Poole a certificate had been issued, whereas in Gration v Remote King & Anor [2015] FCCA 2617; (2015) 302 FLR 53 the absence of a certificate was fatal.
In addressing Allan v Condamine Mr Hamilton acknowledged that by operation of s.550 of the FW Act a person involved in a contravention of a civil remedy provision (such as s.340) would be taken to have contravened that provision. In Allan v Condamine the applicant had obtained a certificate in the FWC that named her employer as a party to the dispute. She subsequently alleged in court proceedings that three individuals were liable for the employer’s contravention because they were “involved” in those contraventions under s.550(1) of the FW Act. The individuals unsuccessfully sought to be removed as respondents on the basis that they were not named as parties in the FWC certificate.
It was submitted that the conclusion in Allan v Condamine that this Court had jurisdiction in respect of the claims against the three individuals was correct (on the basis that the Court’s jurisdiction to deal with the dismissal dispute had been engaged by the fact of a s.368(3) certificate and, consistent with Shea (No 1), that the applicant was entitled to add claims or parties in her general protection court application). However issue was taken with the basis on which Judge Jarrett determined there was jurisdiction in Allan at [7]-[8] (set out at [43] above).
Mr Hamilton submitted that if Judge Jarrett intended to suggest that an applicant could proceed against an alleged accessory in relation to a dismissal dispute in the absence of any FWC certificate in respect of that dismissal dispute, such reasoning was plainly wrong. It was submitted that the fact that s.550(1) was not in Part 3-1 of the FW Act was irrelevant and pointed out that the definition of “general protections court application” in s.368(4) did not impose any limitation on the persons or entities against whom an order in relation to a contravention of Part 3-1 may be sought under Part 4-1 of the FW Act. Mr Hamilton contended that to suggest that the concept of a general protections court application did not extend to a person who was alleged to have contravened Part 3-1 “by virtue of s.550” or to persons “other than an employer” was to read words into s.368(4) of the FW Act which were not there.
Issue was also taken with the suggestion at [9] in Allan that it:
…would be anomalous if an applicant relying upon the rights set out in s 550(1) could, without a certificate under s 371 (sic), proceed against persons said to have been involved in a contravention of some part of the Act not found in Chapter 3 but yet a person who seeks to proceed against another who was involved in a contravention of a provision within Chapter 3 must receive and provide with their application such a certificate.
Mr Hamilton submitted that there was no such anomaly. It was pointed out that the legislature had imposed specific requirements in respect of a general protections court application (a FWC certificate and a time limit) which had to be satisfied before the Court could hear and determine an allegation that a person’s dismissal was in contravention of Part 3-1 of the FW Act. The fact that other parts of the FW Act did not impose such requirements was said not to be to the point.
Rather, it was suggested that it would be anomalous if s.370(a)(i) and (ii) did not apply to persons who allegedly contravened Part 3-1 in relation to a dismissal by operation of s.550(1), as this would require a “carve out” for accessories in the definition of “general protections court application” in s.368(4) of the Act, contrary to the plain language of that provision. If the view in Allan at [7]-[8] were correct, it would also mean that while under s.370(a)(ii) an applicant normally had a limited period to pursue a claim against a principal contravener in relation to a contravention of Part 3-1 consisting of a dismissal for a proscribed reason (see e.g. ss.340 and 342), he or she would have 6 years to pursue legal proceedings against an alleged accessory in relation to exactly the same contravention of Part 3-1. It was submitted that if correct such an approach would mean that a person could readily circumvent the requirements of ss.365, 368 and 370 of the FW Act by disregarding the requirement for an initial FWC resolution process in relation to a dismissal dispute under s.368, as well as for a s.368(3) certificate and commencement of proceedings within a narrow timeframe of 14 days from the date the certificate was issued (or such period as the Court allowed), and that a person could instead proceed only against an accessory up to 6 years after the dismissal alleging, as part of that claim, that a principal had contravened s.340 of the FW Act. It was submitted that this would be at odds with the purpose of the regime in ss. 368 and 370 (and see Shea (No 1) at [81]).
Hence, Mr Hamilton submitted that such an interpretation was inconsistent with the plain language of ss.368(4) and 370 and incongruous with the legislative intent that such matters be dealt with expeditiously (see the Fair Work Amendment Bill 2012, Second Reading Speech p.8); and that it would give rise to an absurd and capricious outcome that the legislature could not have intended.
It was pointed out that leave to appeal in relation to the decision in Allan had been granted by Logan J in McCullough v Allan [2015] FCA 1101 and that his Honour had been of the view that the decision was attended by sufficient doubt to warrant it being reconsidered on appeal. According to counsel for Mr Hamilton, the issue was not in fact considered on appeal because the Full Court dismissed the appeal as incompetent on the basis that Judge Jarrett had not made any orders that corresponded to the grounds the appellants sought to agitate on appeal.
In short, Mr Hamilton submitted that in Allan Judge Jarrett had been correct to find that the court had jurisdiction to entertain a claim against individual respondents notwithstanding that they had not been named in the FWC certificate, but that his reasons for so doing were plainly wrong.
Mr Hamilton referred to conflicting decisions of this court in relation to whether an applicant who had obtained a FWC certificate naming an employer under s.368(3) of the Act was required to obtain a further certificate from the FWC if he or she wished to proceed against individuals allegedly involved in the contravention pursuant to s.550 of the FW Act (see Dain v Mark Group Australia Pty Ltd [2012] FMCA 518; (2012) 224 IR 94 but compare Zehnder v Sell Lease Property Pty Ltd t/as Sell Lease Property [2015] FCCA 3393 and Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962; (2016) 315 FLR 364). It was pointed out that in these cases the FWC had issued a certificate, so the statutory precondition in s.370 on the applicant making a general protections court application “in relation to the dispute” was satisfied and that in none of these cases had the court found that it had jurisdiction in circumstances where the applicant alleged a contravention of Part 3-1 of the FW Act arising from his or her dismissal but had no s.368 certificate at all (and see to the contrary Newman and Hill).
Mr Hamilton contended that, in the absence of a certificate, for Mr Andrade to now seek to allege that Goodyear and the proposed individual respondents had contravened s.340 was to ignore the statutory requirements in s.370. Such an approach was also said to be a collateral attack on the decision of Gooley DP dismissing the FWC application. It was submitted that the Applicant was attempting to achieve “through the back door” what he was unable to achieve through the “front door”.
Mr Hamilton also responded to Mr Andrade’s submissions. Insofar as it was submitted that an applicant was entitled to choose to proceed against an alleged accessory rather than a primary contravener and that a claimed contravention of Part 3-1 pursuant to s.550 of the FW Act was not a “general protections court application” because s.550 was in Part 4-1 of the FW Act, Mr Hamilton submitted that neither point was an answer to his jurisdictional objection. The first proposition was said to be irrelevant as it failed to grapple with the statutory preconditions to the exercise of jurisdiction and the second proposition was said to be plainly incorrect for the reasons outlined above.
As to the first point, Mr Hamilton reiterated that the fundamental question that fell for determination was whether Mr Andrade could proceed against a proposed respondent in relation to a dismissal dispute without having obtained any certificate from the FWC pursuant to s.368(3) and submitted that the answer to that question was no. Hence the fact that an applicant who had obtained such a certificate in respect of a dismissal dispute was entitled to choose to proceed against one or more alleged accessories, instead of or in addition to the primary contravener, while uncontroversial, was said not to be the point.
Further, it was submitted that the fact that an applicant may decide to proceed only against an alleged accessory did not obviate the need to comply with the statutory preconditions to the exercise of jurisdiction, such that, irrespective of which entities and/or persons an applicant chose to litigate against, he must comply with s.370(a) of the FW Act.
It was reiterated that in taking this approach, and in their reliance on Allan v Condamine, the Applicant ignored the statutory framework and the language of ss.368(4) and 370(a) of the FW Act and sought, in effect, to read into s.368(4) additional words that did not exist in the definition of general protections court application, namely that it was confined to a claim against an employer or excluded a contravention of Part 3-1 by an accessory. This approach was said to be inconsistent with the plain language of s.368(4) and the purpose of s.370(a).
Mr Beh also opposed leave being granted. In written submissions he referred to the general principles in relation to joinder (see McLaren v Retail Information Systems Pty Ltd and Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Anor). It was submitted that leave ought not to be granted because Mr Andrade had not established a sufficiently arguable case against Mr Beh both in relation to the claimed dismissal contravention and the claimed investigation contravention and that there were also discretionary reasons to refuse relief.
Mr Beh contended that the existence of a certificate pursuant to s.368(3) was a jurisdictional prerequisite to Mr Andrade making a general protections court application and pointed to remarks by Gooley DP to that effect in refusing Mr Andrade’s application for an extension of time to apply to the FWC.
Mr Beh acknowledged that the amended proposed TFASC set out a factual basis on which it was claimed that he was involved in the claimed dismissal contravention in a sense that was said to attract liability pursuant to s.550 of the Act, although it was pointed out that such involvement was predicated upon there being a finding that Goodyear had dismissed Mr Andrade in contravention of s.340 of the FW Act. It was conceded that if there had been a s.368 certificate it would not have been necessary for such certificate to included proposed individual respondents and that in such a case the only limitations on the persons against whom an order may be sought in regard to liability under s.550 of the Act would have been those contained in the section itself (see Bognar at [65]). However it was submitted that the application to join Mr Beh failed in limine in respect of the claimed dismissal contravention because no certificate had been issued by the FWA pursuant to s.368 of the FW Act in respect of the alleged dismissal dispute.
While it was acknowledged that his liability may be determined separately to that of Goodyear, Mr Beh submitted that accessorial liability on this basis was predicated upon the jurisdiction of the court being invoked with respect to the claimed dismissal contravention. Mr Beh submitted that this could not occur without the existence of a s.368 certificate.
Mr Beh observed that the ex tempore judgment in Allan related to circumstances in which there was a s.368 certificate and that, as Judge Jarrett had noted at [8], “as a necessary condition of success on a claim based under s.550(1) of the Act, it is necessary to demonstrate a contravention of the Act”. It was submitted that although the claimed liability of Mr Beh was founded on s.550 of the FW Act, the contravention of the FW Act that must be demonstrated was in Part 3-1 of the FW Act, so that a s.368 certificate was a jurisdictional prerequisite that had not been met by Mr Andrade.
Mr Beh submitted that there were, in any event, discretionary reasons why, even if the above submission was wrong, leave should not be granted. It was submitted that the wider circumstances of this case, including the substantial “shifting” of Mr Andrade’s claim against Mr Beh (from the SFASC and the first proposed TFASC) to include the additional claims now contained in the amended proposed TFASC, the advanced stage of the proceedings and the time at which the events relating to the claimed contraventions occurred did not warrant exercise of the court’s discretion to grant leave.
Reliance was also placed on what was said to be Mr Andrade’s failure to establish a sufficiently arguable case with respect to Mr Beh’s alleged involvement in both the claimed dismissal contravention and the investigation contravention. It was pointed out that for accessorial liability to lie with Mr Beh in relation to the claimed investigation contravention, Mr Andrade must establish that Mr Beh was sufficiently aware of all the relevant facts going to the claimed contravention and that with that knowledge, he committed acts constituting aiding or abetting, counselling or procuring the claimed contravention; induced the claimed contravention; or was knowingly concerned in the claimed contravention (see Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.2) [2010] FCA 1156; (2010) 201 IR 234).
However it was pointed out that the amended proposed TFASC did not, either at paragraphs [62]-[63] or elsewhere, particularise or plead any facts going to the basis on which it was said that Mr Beh was involved in the claimed investigation contravention, either generally or with respect to the provisions of s.550(2) of the FW Act.
Mr Beh submitted that it appeared that the only reference to the evidence with respect to him and the claimed investigation contravention was in paragraph 13(g) and Annexure G of the affidavit of Ms Lee affirmed on 29 November 2017. This consisted of a reference to a file note of a meeting between Mr Beh and others regarding an investigation conducted by a Mr Dial and a copy of the file note. It was submitted that such evidence was of little assistance in establishing the basis on which it was said that Mr Beh was involved in the claimed investigation contravention. It was suggested that this was perhaps not surprising in circumstances where it was unclear whether the SFASC of 1 September 2017 made any allegation of liability against Mr Beh and the amended proposed TFASC had not yet been filed.
In any event, Mr Beh submitted that the court could not be satisfied that the case against him in relation to the claimed investigation contravention was sufficiently arguable, or even to determine what that case was with any degree of particularisation. In these circumstances it was submitted that the discretion to join Mr Beh should not be exercised with respect to the claimed investigation contravention.
More generally, it was reiterated that the circumstances of the proceedings and application were such that Mr Beh now faced significant claims against him, the bulk of which had only been included in the Applicant’s case since the filing of the amended proposed TFASC. It was submitted that the entirety of the circumstances did not warrant the exercise of the discretion of the court pursuant to r.11.02 of the Rules to join Mr Beh to the proceedings.
Mr Cross and Goodyear also opposed the leave application. A joint submission outlined discretionary factors relied on to oppose leave being granted.
It was pointed out that Mr Andrade had not complied with r.11.02(2) of the Rules until he sought the leave of the court in the application a case he filed on 10 November 2017. For Mr Cross it was submitted that the delay from the time Mr Andrade knew about Mr Cross’s alleged involvement in the dismissal to the time the eventual steps were taken to join him to these proceedings was a reason for the court not to exercise its discretion in r.11.02(2) to grant leave. Reference was made to the period of delay between the dismissal of Mr Andrade on 13 June 2017 and the filing of the SFASC on 1 September 2017 (which, it was noted, purported to join three additional respondents without the necessary leave). This was said to be a delay of some 80 days, or over 2 months, after the dismissal. It was pointed out that despite this extensive period, there was thereafter no application for leave to join the proposed parties in September 2017. Rather, there was a further delay of some 70 days until the 10 November 2017 leave application. Concern was also expressed about the time that had elapsed since 10 November 2017, albeit this was of lesser significance, but which was said to mean that the issue of the proposed joinder was being addressed some 6 months after the termination of Mr Andrade’s employment. It was submitted that Mr Andrade should have acted more promptly.
In addition, Mr Cross contended that this delay meant that he had effectively lost time and the opportunity to acquaint himself with the previous events in these proceedings (which had been on foot since June 2015) and to use the whole of the time period (at least from 1 September 2017) to identify his arguments (as he would need to do if joined) opposing any findings based on his purported involvement in the manner intended to be pleaded (in particular involving the collection of information adverse to Mr Andrade and the alleged conduct said to amount to knowing involvement within the meaning of s.550 of the FW Act).
It was also said to be relevant that some of the allegations against Mr Cross which appeared in the TFASC were not present in the September pleading in any way. Mr Cross submitted that the TFASC included a significantly more complex series of allegations against Mr Cross, that the delay since 1 September 2017 in making these allegations was substantially to his detriment and that it was an egregious delay because Mr Andrade had offered no explanation.
It was submitted that the question of the effect of joining Mr Cross as a further respondent must be balanced against the consequences of not joining him. Mr Cross pointed to the fact that the SFASC sought only declaratory relief against him and the other proposed respondents, but that Mr Andrade now, by virtue of the amended proposed TFASC, also intended to seek penalties and compensation. This was said to be significant, as was the inclusion of a claim that Mr Cross and the other proposed individual respondents contravened s.340 by virtue of Goodyear subjecting Mr Andrade to an investigation.
It was pointed out that this created a distinctly different case against Mr Cross than had been proposed before Mr Andrade filed Ms Lee’s affidavit of 1 December 2017 annexing the amended proposed TFASC. Mr Cross was now said to face the possibility of a full suite of allegations based on direct or indirect contraventions of s.340, including, most significantly, an application for penalties. The nature of the orders now sought was said to exacerbate the impact of the delay occasioned by Mr Andrade taking such a time to properly articulate his wish to join Mr Cross and others. It was submitted that this meant that if Mr Cross was joined to these proceedings he would face as complex a case as Goodyear, but with far fewer resources at his disposal.
On the other hand, it was submitted that if Mr Cross was not joined, the Applicant would still have the opportunity to seek relief against Goodyear, including a penalty (in a maximum sum of some 5 times the amount payable by a natural person) as well as compensation, in relation to the now alleged breaches of s.340 of the Act by Goodyear. It appears that this may be intended to be a reference to the claims against Goodyear other than those in relation to the dismissal dispute. It was submitted that in these circumstances the consequences of not joining Mr Cross were potentially of limited effect.
In addition, one of the main reasons for the objection to leave being granted to join Mr Cross to the proceedings was said to relate to the privilege against self-incrimination.
Mr Cross swore an affidavit on 11 May 2017 that was filed in these proceedings on 12 May 2017 for Goodyear. It was contended that Mr Cross was prejudiced by his involvement in the proceedings as a witness and that the fact that he had given such evidence reduced his options, especially in the context of Mr Andrade’s now stated wish to seek compensation and a penalty against him.
Mr Cross submitted that the right not to be compelled to give evidence against one’s own interest was a basic and substantive common law right and not just a rule of evidence (see Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 11 per Toohey, Gaudron, McHugh and Gummow JJ) and that such right extended to a privilege against self-exposure to a civil or administrative penalty such as was intended to be sought against him in these proceedings.
In this context it was submitted that while the form of disclosure in Mr Cross’s affidavit may not be used to directly incriminate him, it tended to arm Mr Andrade with indirect evidence that had the tendency to lead to evidence of an incriminating character (see Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 310 per Mason, Wilson and Dawson JJ) or that would, at the very least, set in train a process of cross-examination based upon Mr Cross’s affidavit which may lead to incrimination or the discovery of real evidence of an incriminating character in the sense considered by the House of Lords in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443 per Lord Wilberforce.
Mr Cross submitted that, even if given minor weight by the court, such factors had a substantial effect upon the discretion of the court to permit his joinder in circumstances where he had lost his right to remain silent at the allegation of wrongdoing. He was said to have inadvertently armed the Applicant with an account of what the TFASC called the “pre-dismissal” claims. It was submitted that this may now have a substantial and prejudicial effect on any attempt by Mr Cross to defend himself in relation to the claimed investigation and dismissal contraventions and also (absent some unusual event) force him to be compelled as a witness in his employer’s case.
It was submitted that Mr Cross would face the distinct disadvantage of losing the ability to access the privilege by refusing to file a defence at least until the Applicant’s case had closed (and then choosing whether to file an affidavit or give notice of the terms of his evidence in respect of the claims against him). Such a position was said to be based upon assumptions flowing from the previous defence which were undermined to an extent by the SFASC and, to a significantly greater extent, by the amended proposed TFASC. It was submitted that the prejudice to Mr Cross was not capable of remedy, except by not joining him to the proceedings.
Mr Cross acknowledged that there were cases in which accessorial liability could be pursued where no primary wrongdoer was solvent or available (including under the FW Act), or where the primary wrongdoer was not joined as a party, but submitted that this did not bear upon the discretionary question raised by the joinder application.
Insofar as Mr Andrade asserted that if he were to press his claim separately against Mr Cross then Mr Cross would be in precisely the same apparently “difficult position” as if he had already been joined to the present proceeding, it was submitted that while Mr Andrade had attempted to apply a permissive approach to joinder, he had not addressed the issues of delay and prejudice except in a very general manner. Nor had he given any reason for applying at such a late stage to join the proposed respondents.
Insofar as Mr Andrade submitted that the loss complained of by Mr Cross in relation to the privilege issue was not the subject of evidence and was hypothetical and not actual loss, Mr Cross submitted that the “opportunity to do or say something which may have occurred” but for delay should not be regarded as a mere “hypothetical” loss (see the discussion in Sorby v Commonwealth at 309-310 in relation to statutes abrogating the privilege against self-incrimination). It was also contended that the loss of such a right should not be regarded as trivial where the prejudice complained of was caused by delay on the part of the party seeking an indulgence from the court. Mr Cross pointed out that no explanation for Mr Andrade’s delay in seeking to join the proposed individual respondents had been provided. It was further submitted that there was no case law cited or support in the Rules for concluding that the joinder of accessories should be construed in a liberal manner when attended by extensive delay or a loss of rights.
In addition, Mr Cross pointed out that Mr Andrade had not addressed the fact that the present application was for joinder, not a separate proceeding against Mr Cross. Mr Cross submitted that the possibility of separate proceedings against him did not answer the question of whether leave should be granted to join him in these proceedings. It was contended that the fact that Mr Andrade could commence a proceeding against Mr Cross was merely a matter of form and not of substance which did not answer the delay nor the effects of delay in the present proceedings. It was submitted that this was not a factor supporting the grant of leave in circumstances where the joinder application sought to use the existence of any such factor to “boot-strap” the delay and what was said to be the prejudicial attempt to join Mr Cross and the other proposed individual respondents. In any event, it was submitted that, in the circumstances of this case, to commence such separate claims would arguably amount to attempting to re-litigate the same cause of action, thus constituting an abuse of process.
Mr Cross contended that had the joinder application been made and pursued in a timely fashion (and before Mr Cross had sworn affidavit evidence) then he would have had options which were now denied to him, including the substantive right to claim the privilege against self-incrimination at its fullest.
It was reiterated that any right to silence or to elect not to go into evidence, thereby putting Mr Andrade to proof (which Mr Cross had prior to swearing his affidavit of 11 May 2017), was now effectively no longer available to him. The loss of this right was said to be a substantial discretionary factor militating against the grant of leave to join him to the present proceedings.
Goodyear submitted that allowing the late joinder application would result in a substantial expansion of the existing proceedings to include persons beyond those said to be the decision-makers in respect of any particular decision in circumstances where the first and most obvious consequence would likely be to lose the March 2018 trial date (having regard to the need for the proposed individual respondents to seek advice, prepare for and conduct a trial). It was submitted that due to the application for joinder and the incomplete pleadings the proceedings remained in a state of uncertainty and that this meant that the trial could not proceed before extensive further procedural work was done. In these circumstances the delay affecting Goodyear was said not to be a minor consideration. It was submitted that further delay would be a substantial imposition on Goodyear. It was also pointed out that if the joinder was permitted it would enlarge the duration and complexity of the proceedings. I note that while judgment was reserved the trial date was vacated as suggested by Goodyear and in the absence of any opposition from Mr Andrade.
It was submitted that, based on the delays which had already occurred, a measure of Goodyear’s prejudice was the time and legal costs it had expended in the joinder application, as well as the delay since the last orders for a trial date were made on 14 July 2017 and also any further delay if the trial did not proceed in March 2018 from the time when the court re-listed the hearing until a further trial date became available.
It was suggested that the delay in this case was perhaps more significant than in some other cases. Given that the proceedings had been ongoing since 2015, the delay was said to be compounded by the nature of the proceedings in circumstances where the main evidence was said to concern the general protections allegations. It was submitted that prejudice to Goodyear from delay could result from fading memory or loss of contact with witnesses (see for example Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No.2) [1997] QCA 376; [1998] 2 Qd R 551 at 556); the effort required to retain contact with witnesses who were former employees (of whom there were three in the present case); and the fact that Goodyear required each of its decision-makers to be present and available to give evidence in court in order to meet any reverse evidentiary burden under s.361 of the FW Act. It was pointed out that Mr Cross had ceased to be an employee of Goodyear in January 2018. It was acknowledged that the absence of any significant decision-maker as a witness may undermine Goodyear’s efforts to discharge the reverse evidentiary burden under s.361 of the FW Act.
Goodyear submitted that if leave to join additional respondents was granted, having regard to procedural as well as substantive steps remaining to be completed, the further delay in hearing the proceeding was likely to be longer rather than shorter.
In conclusion, it was submitted for Goodyear and Mr Cross that rights and privileges had effectively been removed from Mr Cross, in chief by the delay in seeking to join him to the proceedings, that Mr Andrade had not pointed to any sense in which its claim against Goodyear would be incomplete or wanting, and that the proposed accessorial proceedings were a further or additional claim which Mr Andrade now sought to bring, many months after his attempt to bring a dismissal allegation against Goodyear. It was submitted that the application for leave should be dismissed.
Consideration
The Rules are silent in relation to the factors to be taken into account in considering whether to grant leave to a party to include a person as a party after the first court date. As pointed out by Judge Manousaridis in Fair Work Ombudsman v Northcoast at [7]-[8] the Court has a broad discretion in this respect (and see McLaren v Retail Information Systems at [14]). It would be open to the court to consider matters referred to in the rules of other courts in relation to applications for joinder (see for example r.9.05 of the Federal Court Rules 2011 (Cth) and Fewin Pty Ltd v Burke at [40]-[48] per Markovic J).
As contended for by Mr Beh, a relevant issue is whether Mr Andrade has a sufficiently arguable case against the proposed additional respondents to justify joinder. As Judge Manousaridis stated in Northcoast at [11]:
One matter that is relevant, and may be considered to be necessary, to making an order joining a person as a respondent is whether the applicant has a sufficiently arguable case against the person sought to be joined as a respondent to justify the joinder. That has been regarded as a requirement in applications for joinder made under rules of other courts; and the words used to describe the merits required of a proposed claim against the person who is sought to be joined before that person may be joined have varied. Thus, it has included the expressions “no prospect of success”, or “an arguable case”, or “sufficiently arguable case”, or “a prima facie case”.
It is convenient to consider the jurisdictional objection first. It is alleged that Mr Andrade was dismissed in contravention of s.340 of the FW Act and also that an investigation was instituted in contravention of s.340 which is in Part 3-1 of the Act. It is now relevantly sought to be alleged that the proposed additional respondents were involved in both these contraventions.
Sections 365-370 of the FW Act are in Subdivision A of Division 8 of Part 3-1 which deals with “Contraventions involving dismissal”. It is clear from these provisions that the starting point in relation to a dismissal dispute where it is alleged that a person was dismissed in contravention of Part 3-1 of the FW Act is intended to be an application to the FWC for the FWC to deal with “the dispute”. As Dodds-Streeton J stated in Shea (No.1) at [81]:
The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in FWA to facilitate conciliation and non-curial resolution.
Had the application to the FWC been “made” by Mr Andrade under s.365 in accordance with s.366(1) (or had an extension of time been granted by the FWC) then s.368 would have come into play. It is relevantly as follows:
Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
…
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
It is not in dispute that Mr Andrade was dismissed from his employment by Goodyear on 13 June 2017. He applied to the FWC on 1 September 2017. This was outside the 21 day limit in s.366(1)(a). The FWC did not allow an extension of time as provided for in s.366(2) of the FW Act. His application was dismissed (see the discussion by Gooley DP in Andrade v Goodyear & Ors). Hence the FWC did not deal with the dispute and did not issue a s.368(3) certificate.
Section 370 of the FW Act is of central significance in relation to the jurisdictional objection. It provides:
Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
…
Mr Andrade accepted that s.370(a)(i) prevented him from making a general protections court application against Goodyear in relation to his dismissal dispute in the absence of a s.368(3) certificate. This means that in the present proceedings he cannot seek orders against Goodyear under Division 2 of Part 4-1 of the FW Act in relation to a contravention of Part 3-1 of the Act “in relation to” his dismissal.
What is in issue is whether Mr Andrade can nonetheless make an application to this Court under the FW Act seeking orders against Messrs Hamilton, Beh and Cross under Part 4-1 of the Act on the basis that they were involved in the s.550(1) sense in an alleged contravention or contraventions of s.340 of the FW Act by Goodyear said to consist of his dismissal and his investigation by Goodyear. If the prohibition in s.370 does apply, then the Court would have no jurisdiction in relation to such claims.
Such an issue is not answered by the fact that it is clear that in some circumstances proceedings under the FW Act in relation to contraventions involving dismissal of an applicant by his or her employer may be brought against alleged accessories in addition to or instead of action against the former employer. As Mr Hamilton and Mr Beh acknowledged, where an applicant has obtained a certificate from the FWC under s.368(3) of the FW Act he or she may make a general protections court application in relation to a dismissal dispute and in such a case the application to the court could validly include new, additional, or different claims (see Shea (No.1) at [70]-[75], Knight at [33], Poole, Zehnder and Bognar).
However in this case there is no FWC certificate at all.
There is clear authority that a certificate under s.368(3) (or its predecessor) is a precondition to the Federal Court’s jurisdiction to deal with a general protections court application in relation to a dismissal dispute (see Newman at [5], Hill v Compass at [31] and Shea (No.1) at [26] and [30]). Similarly, a s.368(3) certificate is a precondition to this Court’s jurisdiction in relation to a general protections court application in relation a dismissal dispute (and see Rentuza v Westside and Gration v Remote King).
Mr Andrade contended, by reference to Allan v Condamine at [7]-[8], that his “action” against the alleged accessories arose from or was created under s.550(1) of the FW Act (which is not in Part 3-1 of the Act), whereas it was suggested that the “dispute” referred to in ss.365, 368 and 370 of the Act was a dispute which “arises” under Chapter 3 of the Act, not under any other provision or Chapter of the FW Act. On this basis it was submitted that the proposed action against Messrs Hamilton, Beh and Cross was not a general protections court application so that a certificate under s.368(3) was not a prerequisite to action against them.
However, as contended for by Messrs Hamilton and Beh, I am satisfied that the proposed action against Messrs Hamilton, Beh and Cross in relation to Mr Andrade’s dismissal is a general protections court application within s.370 of the FW Act and that Mr Andrade cannot make such application in the absence of a s.368(3) certificate in relation to the dispute.
Read widely, the ex tempore remarks in Allan v Condamine at [7]-[8] appear to be to the contrary. However in that case a s.368(3) certificate had been obtained. In issue was whether the certificate had to name respondents against whom an accessorial claim was proposed as a prerequisite to action in this court against those accessories. Unexceptionally, and consistent with the approach taken in Shea (No.1) at [70]-[75], [77] and [91] and Knight at [33], Judge Jarrett concluded that the s.368(3) certificate did not have to name the proposed accessories. However insofar as his Honour’s remarks at [7]-[8] amount to a more general statement that a s.368(3) certificate is not a prerequisite to action in this court against alleged accessories under the FW Act alleging a contravention of a provision in Part 3-1 of the Act in relation to a dismissal dispute, I would regard it as clearly wrong and would not follow it.
As pointed out in submissions for Mr Hamilton, ss.365-370 provide a procedure for applying to the FWC to deal with a dispute if a person has been dismissed and it is alleged that the person was dismissed in contravention of Part 3-1 of the Act.
Mr Andrade alleges that he was dismissed in contravention of s.340 of the Act. It is not in dispute that he was entitled to apply under s.365 for the FWC to deal with the dismissal dispute.
A “general protections court application” is defined in s.368(4) as an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of “this Part” (that is Part 3-1 of the FW Act). Section 340 is in Part 3-1 of the FW Act and is a civil remedy provision. A person affected by a contravention of s.340 may apply to this court, which has power under s.545 to make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision. Mr Andrade’s proposed application to the court is an application under Division 2 of Part 4-1 of the Act for orders “in relation to” a contravention of s.340.
It is in that context that s.550 (which is in Division 4 of Part 4-1 of the FW Act and not, as suggested in Allan v Condamine at [7], in Chapter 5) provides that “[a] person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision”. However reliance on s.550 does not involve an allegation of a contravention of s.550. Rather, if a person is involved in a contravention of s.340 of the FW Act, he or she is taken to have contravened s.340. The application to the court in relation to such contravention, whether against the employer or a person “involved” within s.550 of the FW Act, is brought under Division 2 of Part 4-1 of the Act. However s.550 itself does not give a person power to apply to the court. That power arises under s.539 which addresses the standing of persons to apply to the courts “for orders in relation to a contravention or proposed contravention”.
The fact that the action is against persons said to be taken to have contravened s.340 by operation of s.550 does not take it outside the definition of a general protections court application. Insofar as Mr Andrade’s proposed action against the alleged accessories is in relation to his dismissal, allegedly in contravention of s.340 of the FW Act, it is subject to s.370 of the Act, in particular, the requirement of a s.368(3) certificate.
As Dodds-Streeton J pointed out at [55] in Shea (No.1) the “dispute” referred to in s.365 (and, I would add, in s.370) “may be characterised as a dispute concerning a person’s dismissal allegedly in contravention of Part 3-1”. This is such a dispute. Once the FWC’s jurisdiction is engaged it has jurisdiction in relation to the entire dispute about a person’s dismissal (irrespective of which entities or individuals are named as parties to the FWC application). So too do the prerequisites to court action in s.370 apply to any general protections court application in relation to the dispute (whether against principal contraveners or accessories). As Dodds-Streeton J stated in Shea (No.1) at [91]-[92] in relation to s.371(1) (now s.370):
In my opinion, on the better view, “the dispute” in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant’s substantive claims made in the FWA application.
If, contrary to that view, the relevant dispute is thus limited, a general protections court application “in relation to” that dispute could legitimately include new claims, additional to and different from those in the FWA application, within the jurisdiction conferred by the issue of a certificate under s 369 in relation to the dispute.
In any event, in this case Mr Andrade named the proposed accessories as parties to the s.365 application in recognition that, from his perspective, they were part of the dismissal dispute.
Section 370 of the Act establishes a mandatory prerequisite (see Hill v Compass). Hence Mr Andrade “must not make” a general protections court application “in relation to the dispute” unless certain requirements are satisfied, including, relevantly, a s.368(3) certificate.
Insofar as Mr Andrade relied on Allan v Condamine in support of the proposition that his cause of action against the proposed accessories “arises from” s.550 of the FW Act and on that basis is not a general protections court application to which the s.370 requirement of a s.368 certificate would apply, such a contention ignores the statutory framework of the FW Act in general, Parts 3-1 and 4-1 in particular and Division 8 of Part 3-1 which imposes specific requirements in relation to dismissal disputes where a contravention of Part 3-1 is alleged. It is also contrary to the clear language of s.368(4) and s.370(a) of the FW Act.
As Mr Hamilton submitted, to adopt the interpretation urged by Mr Andrade (that actions against accessories in relation to a dismissal dispute do not require an FWC certificate) would not only be inconsistent with the plain language of ss.368(4) and 370 and contrary to the legislative intention that such matters be dealt with expeditiously (as stated in the Second Reading Speech), but would also give rise to an absurd and capricious outcome which the legislature could not have intended.
I agree with Mr Hamilton’s reasoning rejecting the suggestion in Allan v Condamine at [9] that it would be “anomalous” to apply the s.370 prerequisites to action against an accessory. The legislature has imposed specific requirements in respect of contraventions involving dismissal, including the “gateways” of an application to the FWC and an FWC certificate. The fact that the Act does not impose such requirements in relation to other kinds of contraventions, including contraventions of Part 3-1 that do not involve dismissal, (cf Allan v Condamine at [9]), is not to the point.
On the other hand, it would be anomalous if s.370 did not apply to court action “in relation to” a dismissal against persons who were said to have contravened s.340 by operation of s.550(1) because of their involvement in the dismissal. This would require a “carve out” for accessories from the plain language of s.368(4) of the Act. It would mean that the s.370 time limit on commencing court action in relation to such a contravention applied to actions against a principal contravener, but not to actions against an accessory in respect of the same dismissal. It would also mean that a person could circumvent the requirements of ss.365-370 by proceeding only against an accessory in relation to a dismissal. Indeed in the present context it would mean that although the fact that Mr Andrade’s application for an extension of time within which to apply to the FWC was unsuccessful and the resulting lack of a s.368(3) certificate prevented him from proceeding against Goodyear in relation to his dismissal, he would, if his suggested approach was correct, nonetheless be able to proceed against the alleged accessories and would not be subject to the s.370 time limit. The legislature cannot have intended such a result.
While s.544 imposes a 6 year limitation period on an application under Part 4-1, Note 1 to that section states that it does not apply in relation to general protections court applications. Reference is made to s.370(a)(ii) which imposes a time limit of 14 days after the day the s.368(3) certificate was issued or such period as the court allows. This is consistent with the view that a certificate is a prerequisite to a general protections court application, whether brought against an employer or accessories. However the interaction of s.544 and s.370(a)(ii) was not addressed in these proceedings.
In any event, I am satisfied that, as submitted by Mr Hamilton, Mr Andrade’s proposed claim against Messrs Hamilton, Beh and Cross alleging their involvement in the dismissal dispute constitutes a general protections court application. It is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1. Subject to what is said below in relation to the claimed investigation contravention, the proposed action against the alleged accessories is in relation to the dismissal dispute.
As indicated, a prerequisite to such application is that Mr Andrade “must” have met the mandatory requirements of s.370 of the Act (see Hill v Compass). As Mr Hamilton and Mr Beh submitted, the fact that an applicant may seek to proceed only against an alleged accessory does not obviate the need to comply with the statutory preconditions to the exercise of jurisdiction by the court in relation to a general protections court application, in particular a s.368(3) certificate. Mr Andrade has not complied with these preconditions. Hence he cannot make, and the Court has no jurisdiction to deal with, an application to this court “in relation to the dispute” in relation to his dismissal. To put it another way, he has no prospects of success in such action. Leave to join the proposed accessories in relation to the dismissal dispute should be refused.
Even if the proposed application against Messrs Hamilton, Beh and Cross was not a general protections court application (so that a s.368(3) certificate was not a precondition or jurisdictional prerequisite to such an action) I would, in any event, refuse leave as a matter of discretion in the particular circumstances of this case.
However, before considering discretionary factors, I note that counsel for Mr Andrade indicated at the directions hearing on 30 November 2018 that he sought only to join the proposed accessories in relation to “the general protections claim relating to the dismissal”. The amended proposed TFASC includes claims for orders against the proposed accessories in relation to both the claimed investigation contravention and the claimed dismissal contravention. This approach may reflect a view that the claimed investigation contravention is part of the “dismissal dispute”. This was not addressed in the Applicant’s written submissions, although it would be consistent with counsel’s oral submissions and the fact that in the amended proposed TFASC no remedies are sought against Goodyear in relation to the investigation contravention. This may also have been the assumption on which Mr Hamilton’s submissions were premised, although Mr Beh addressed the claimed investigation contravention separately.
If the claimed 2017 investigation contravention is to be seen as part of the same dispute as the dismissal, the jurisdictional prerequisite of a s.368(3) certificate in relation to the dismissal dispute would also apply to the proposal to join the alleged accessories in relation to the claimed investigation contravention. In the absence of such a certificate Mr Andrade could not make the proposed application and the court would have no jurisdiction in that respect.
If the proceedings in relation to the claimed investigation contravention are not “in relation to the dismissal dispute” I would, in any event, decline to grant leave to join the proposed additional respondents in that respect.
Mr Andrade submitted that once an arguable case was established in relation to the dismissal contravention, the Court did not also need to find an arguable case in relation to the claimed investigation contravention. This submission was put on the basis that the court need only be satisfied there was a sufficient basis on which to obtain any of the relief sought by Mr Andrade (citing ACCC v Yellow Page Marketing at [25] in relation to leave to serve an originating process outside Australia).
However this submission cannot succeed, given my finding that the court has no jurisdiction in relation to the claim against the proposed accessories in relation to the claimed dismissal contravention.
Further, as Mr Beh submitted, as pleaded the amended proposed TFASC does not raise a sufficiently arguable case in relation to his alleged involvement in the claimed investigation contravention. Nor does it do so in relation to Mr Hamilton or Mr Cross. The amended proposed TFASC does not plead or particularise any facts going to the basis on which it is said that Messrs Hamilton, Beh or Cross were involved in the claimed investigation contravention in the manner required under s.550(2) of the FW Act. There is no mention of any of the alleged accessories in paragraphs [62]-[64] which plead the investigation contravention and no pleading of the basis for their alleged involvement in such claimed contravention (in contrast to the pleading in relation to the so-called “second 2017 contravention”, being the dismissal).
It may be that Mr Andrade intended to overcome this deficiency by reference to matters described in Ms Lee’s affidavit of 29 November 2017. However the events and documents referred to therein indicating that Mr Beh, Mr Cross and Mr Hamilton were made aware of the investigation by a Mr Dial or the results of the investigation do not address the basis on which they are each said to be “involved”, whether generally or within s.550(2) of the FW Act, in the contravention said to consist of “investigating” an “apparent health and safety concern”. This evidence does not suffice to establish a sufficiently arguable case to support the joinder application in this respect.
Mr Andrade’s response to Mr Beh’s submissions as this issue does not assist. In particular, pleading of matters in relation to alleged involvement in the dismissal contravention does not overcome this deficiency. This inadequacy is a factor against the grant of leave.
More generally, circumstances considered as a whole do not support the joinder application. In particular, while the events in question did not occur until 2017, as Mr Cross and Goodyear submitted, there has been a considerable unexplained delay by Mr Andrade in seeking to join the proposed accessories (in particular in relation to the alleged investigation contravention of April 2017 as well as the June 2017 dismissal). It is also of concern that there has been a substantial “shifting” and widening of Mr Andrade’s proposed claims at an advanced stage of the proceedings. The amended proposed TFASC contains a distinctly different and wider case against the proposed accessories than was previously pleaded in the SFASC and the first proposed TFASC.
Insofar as Mr Andrade submitted that it was relevant that he could institute separate proceedings against the proposed accessories within 6 years of the 2017 actions, this assumes the claims are not general protections court applications. In any event, that “possibility” is not such as to warrant leave being granted or to outweigh the other circumstances, in particular the unexplained delay in seeking leave after the alleged actions occurred, the late stage at which such application has been made and the resulting potential disadvantage to the proposed additional respondents in relation to time for case preparation as well as the particular prejudice to Mr Cross in relying on his privilege against exposing himself to a civil penalty. Mr Cross raised a very real issue of potential prejudice, particularly as his affidavit was sworn after the instigation of the alleged investigation said to form the basis of the investigation contravention.
Significantly, no remedies are now proposed to be sought against Goodyear in relation to the claimed investigation or dismissal contraventions (except that, in an apparent error, in the amended proposed TFASC compensation in relation to the dismissal is sought from Goodyear as well as from the alleged accessories). Hence, while all of the alleged conduct is said to have occurred in the context of Mr Andrade’s employment, and in this very broad sense may be seen as raising “related” disputes, the rights of relief claimed against the proposed accessories do not arise out of the same (earlier) events that gave rise to Mr Andrade’s presently proposed claim against Goodyear. Determination of those earlier claims does not require the participation of proposed accessories in relation to later actions. Such circumstances are to be seen in light of the late stage at which joinder was sought, the potential impact on the proposed additional respondents (as discussed above) and on the length of the final hearing, including the impact on Goodyear of inevitable further delay in proceedings of this nature having regard to the s.361 reverse onus and the time that has passed since the alleged “pre-dismissal” adverse action currently alleged against Goodyear.
Having regard to all the circumstances I am not persuaded that leave to join the three proposed additional respondents should be granted in the particular circumstances of this case. The application should be refused.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 16 March 2018
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