Astone v Cat Welfare Society - [2012] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ASTONE -v- CAT WELFARE SOCIETY [2012] WADC 152

CORAM: DAVIS DCJ

HEARD: 27 SEPTEMBER 2012

DELIVERED : 27 SEPTEMBER 2012

FILE NO/S: APP 67 of 2011

BETWEEN: PHILLIP ASTONE
Appellant
AND
CAT WELFARE SOCIETY
Respondent

Catchwords:

Appeal from Magistrates Court - Claim in Magistrates Court by employee against employer for damages for unfair dismissal - Defendant employer's application for summary judgment heard in absence of plaintiff employee - Judgment for defendant employer - Application by plaintiff employee to set aside judgment - Magistrate refused to set aside judgment - No error by magistrate - No jurisdiction in Magistrates Court to determine employee's claims for unfair dismissal or sexual discrimination

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 18

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Not applicable
Respondent: Mr M W Fatharly

Solicitors:

Appellant: No appearance
Respondent: Kott Gunning

Case(s) referred to in judgment(s):

Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142
Bednall v Wesley College [2005] WASC 101
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coleman v Pearce [2005] WADC 62
Diaz v Schlumberger Australia Pty Ltd [No 2] [2011] WADC 135
Fusia Ltd v Neoside Pty Ltd [2005] WASC 228
VentureAxess Capital Ltd v RM Capital Pty Ltd [2005] WADC 128

DAVIS DCJ:
(This judgment has been delivered extemporaneously on 27 September 2012 and has been edited from the transcript).

The appellant, Mr Astone, has brought an appeal from a decision of Magistrate Hawkins made on 14 September 2011.
On that day, for detailed reasons which she delivered orally, Magistrate Hawkins dismissed an application by Mr Astone to set aside an earlier order she had made on 18 July 2011 dismissing Mr Astone's claim against the Cat Welfare Society Inc, the respondent in this appeal (which I shall refer to as CWS).
The background to this matter is as follows. Mr Astone was employed by CWS pursuant to a contract made in February 2009. It was an express term of this contract that the terms and conditions of his employment were as set out in the Animal Welfare Industry Award. Clause (5)(ii) of that award provides that the employment of any employee with less than one year's continuous service may be terminated by a notice period of one week or payment in lieu of that notice.
By letter dated 23 April 2009, CWS terminated Mr Astone's employment and paid him one week's pay and leave entitlements in lieu of notice.
On 30 November 2010, Mr Astone brought a claim in the Magistrate's Court against CWS claiming $35,386 on the grounds that his contract was terminated for unfair and discriminative reasons.
On 20 May 2011, CWS filed an application for summary judgment together with an affidavit in support sworn on 19 May 2011 by Kane Gregory Clifford Parker, a solicitor employed by the solicitors on the record for CWS. The grounds for the bringing of the summary judgment application which I have taken from the final paragraphs of Mr Parker's affidavit were, in summary, that:
(a)Mr Astone had unsuccessfully attempted on three separate occasions to pursue analogous causes of action.
(i)First on 15 May 2009, he had made application in the Western Australian Industrial Relations Commission claiming harsh, oppressive or unfair dismissal. That application was later withdrawn because it had been brought in the wrong jurisdiction.
(ii)Then in October 2009, Mr Astone made an application pursuant to the Workplace Relations Act 1996 (Cth), in the Australian Industrial Relations Commission in its Fair Work Australia jurisdiction, alleging unfair dismissal, including sexual discrimination. This application was brought out of time and an application for an extension of time was dismissed by Deputy President McCarthy on 4 November 2009.
(iii)Mr Astone then brought another claim in another Magistrates Court action against the operations manager of CWS. This claim was dismissed on 14 May 2010 on the defendant's application for summary judgment on the basis that Mr Astone had the wrong party.
(b)the Magistrates Court was not the correct jurisdiction for this unfair dismissal claim; and
(c)there was no issue to be tried as Mr Astone had been paid the monies to which he was entitled under the contract.
After an initial hearing of this application on 29 June 2011, at which Mr Astone was present, a special appointment hearing date was set for CWS's summary judgment application. The hearing date set was 18 July 2011, with an order that Mr Astone file and serve a response and any supporting affidavit by 13 July 2011.
Mr Astone was present at this hearing and knew of these dates. He did file and serve an affidavit on 13 July 2011. He did not, however, attend the hearing on 18 July 2011. In the absence of Mr Astone, orders were made by Magistrate Hawkins dismissing his claim and ordering that he pay CWS's costs to be assessed if not agreed.
These orders have been generally referred to as the 'default judgment'. However, strictly speaking, this was not a situation where judgment was entered against Mr Astone by reason of any default, such as the filing of a defence, which is the situation generally referred to as a default judgment. This was a situation where the claim was dismissed on the hearing of CWS's summary judgment application at which Mr Astone, the claimant, did not appear.
In a situation of a judgment entered in the absence of a party on a summary judgment application, the absent party is able to apply to set aside the judgment.
Section 18 of the Magistrates Court (Civil Proceedings) Act 2004, deals with summary judgments and provides as follows:
18(6)The court may set aside a judgment given under this section and may do so on conditions as to the payment of costs or as to other matters.
Similar to a party seeking to set aside a default judgment, the party who did not appear at the hearing of a summary judgment application must provide a satisfactory explanation for his or her absence from the hearing, explain any reasons for delay in making the application to set the judgment aside and establish that he or she has an arguable case, whether it is a claim or defence, on the merits: Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142, 143; Fusia Ltd v Neoside Pty Ltd [2005] WASC 228 [56] – [73]; VentureAxess Capital Ltd v RM Capital Pty Ltd [2005] WADC 128 [42] (a decision of District Court Judge Schoombee dealing with summary judgment in the Magistrates Court) and Coleman v Pearce [2005] WADC 62 [27] (a decision of District Court Judge Deane also dealing with summary judgment granted in the Magistrates Court in the absence of a party).
These principles apply to summary judgment applied for by a defendant where there is no appearance by the plaintiff at the hearing of the application: LexisNexis Butterworths, Civil Procedure Western Australia vol 1 [16.4.1] and [14.12.1]. The issue of the merits of the plaintiff's claim or the defendant's defence, as the case may be, is the most important consideration: Aboyne Pty Ltd v Dixon Homes Pty Ltd.
On 5 August 2011, Mr Astone applied to set aside the judgment obtained by CWS on its summary judgment application on 18 July 2011, which I will refer to as 'the judgment'. Mr Astone filed an affidavit in support explaining that he missed the hearing because his shoulder, which had been recently operated on, had given way and he had to attend a clinic as an emergency. He attached a medical certificate signed by a doctor from Sir Charles Gairdner Hospital, which was dated 21 July 2011, and certified that Mr Astone attended a clinic on 18 July 2011 with the remark 'Left shoulder, AC joint reconstruction gave way.' This medical certificate was described by the magistrate as, 'scant', with no detail, and in particular, no detail confirming that Mr Astone was unfit to attend court.
Mr Astone's application to set aside the judgment was listed for hearing, again before Magistrate Hawkins, on 26 August 2011. The hearing was adjourned to enable Mr Astone to obtain further medical evidence concerning his shoulder and why he did not attend court on 18 July, and also to explain why, on the merits, he had a good claim against CWS. A new hearing date for Mr Astone's application to set aside the judgment was fixed for 9 September 2011, with an order for Mr Astone to file an affidavit by 2 September 2011, with which he complied. The hearing of Mr Astone's application took place on 9 September 2011, once again before Magistrate Hawkins.
Mr Astone appeared at that hearing and made submissions, as did counsel representing CWS. In his affidavits of 13 July 2011 and 2 September 2011 and at the hearing, Mr Astone raised a claim that he had been unlawfully dismissed on the basis of sexual discrimination. The magistrate was concerned that there was no jurisdiction in the Magistrates Court to hear such a claim for unfair dismissal and wanted further submissions from both parties in writing to address the issue of the legal basis for the Magistrates Court to make an award of compensation for unfair dismissal and sexual discrimination. The magistrate discussed with both parties a timetable for the filing of further submissions before she proposed to deliver her reasons orally. The magistrate directed both parties to file further submissions on 13 September 2011 and adjourned the hearing for the delivery of her oral reasons to 14 September 2011 at 9.00 am.
Mr Astone filed submissions on 13 September 2011. However, he did not appear at the adjourned hearing on 14 September 2011; counsel for CWS did appear. Other than clarifying one matter, the magistrate did not hear any further submissions from CWS and simply delivered her oral reasons. She then, consequent upon those reasons, made orders dismissing Mr Astone's application to set aside the judgment. The orders made were that the application dated 5 August 2011 is dismissed and the claimant do pay the defendant's costs, including reserved costs, to be assessed if not agreed.
On the same day, 14 September 2011, Mr Astone filed this appeal in the District Court.
Mr Astone's appeal was listed for a directions hearing on 18 October 2011. He was not present at that hearing. The directions hearing was adjourned sine die. A further directions hearing took place on 28 August 2012, which Mr Astone did attend. A direction was made that he file any affidavit in support within 14 days, and a hearing date for this appeal was fixed for 19 September 2012. Mr Astone has not filed an affidavit and he also did not appear at the hearing on 19 September 2012 which was listed before me.
I adjourned the appeal because correspondence on the court file indicated to me that there may have been confusion in Mr Astone's mind as to whether the appeal hearing would be proceeding on that day. In a letter dated 12 September 2012 the court support officer, case management, wrote to Mr Astone advising him that the hearing fee for the appeal hearing listed to take place on 19 September 2012 had not yet been paid and the fee must be paid prior to the hearing taking place. He was invited to apply to have the fee remitted if he was not in a position to pay due to financial hardship. I took the view that this letter might have suggested to Mr Astone, who is not legally represented, that if the hearing fee was not paid the appeal hearing would not be taking place.
I therefore adjourned this appeal to today. By letter dated 19 September 2012, Mr Astone was advised by the court that the hearing date was now fixed for today and that the filing fee was waived and no longer payable.
Mr Astone has not appeared at the hearing of the appeal today. I have decided to determine this appeal on the merits in his absence and in light of the papers which I have read.
This appeal is in the nature of a re-hearing. An appellate court hearing an appeal by way of a re-hearing, can exercise its appellate powers only if satisfied there was some legal, factual, or discretionary error on the part of the primary decision maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.
There is one ground to the appeal as set out in the notice of appeal filed by Mr Astone on 14 September 2011. It reads 'I was not present due to several reasons.'
The appeal notice does not comply with the requirement in District Court Rules 2005 r 50(3). There are no particulars provided which set out or demonstrate that the magistrate's decision is against the weight of the evidence, nor does the appeal notice specify why the decision is wrong in law.
In fact, I have no information to explain the statement in the appeal notice 'I was not present due to several reasons.' I have assumed that the reference to not being present refers to the hearing on 14 September 2011. In written submissions filed in this appeal by CWS, dated 17 September 2012, CWS has assumed that it relates to the hearing of 18 July 2011. I will therefore deal with both possibilities.
Pursuant to s 40(4) of the Magistrates Court Civil Proceedings Act 2004, this court must decide the appeal on:
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
Rule 50(1) of the District Court Rules 2005 is of similar effect, providing that the appeal must be by way of reconsideration of the evidence before the primary court unless the parties agree otherwise. Rule 5(2) and (3) provide that additional evidence must only be adduced with leave and such leave can only be granted if there are special grounds for doing so. There is no agreement or leave to adduce further evidence in this appeal.
I have reviewed the material and evidence to which Magistrate Hawkins had regard and the transcript of the proceedings in the Magistrates Court.
While Mr Astone was not present at the hearing on 14 September 2011, it is apparent from the material before me that he was given a reasonable opportunity to present his case at the earlier hearing on 9 September 2011 and again when he filed his written submissions on 13 September 2011. He was treated fairly. It could not be said that the orders which Magistrate Hawkins made on 14 September 2011 were made without Mr Astone first having an opportunity to be heard. The magistrate had read and had regard to his affidavit filed in opposition to CWS's summary judgment application, sworn 13 July 2011, and his later affidavit, filed on 2 September 2011, both of which dealt with the merits of his claim. She also heard his oral submissions on 9 September 2011 and received and read his written submissions of 13 September 2011, before she delivered her decision and reasons for it. It was not intended that either party would make any further submissions at the hearing on 14 September 2011. The purpose of the hearing on that day was for delivery of the magistrate's oral reasons for decision.
In relation to Mr Astone's absence from the hearing on 18 July 2011, there is, in my view, no possibility of any different outcome on either CWS's summary judgment application, which was heard in Mr Astone's absence on 18 July 2011, or on Mr Astone's application of 5 August 2011 to set aside the judgment.
While Magistrate Hawkins referred to Mr Astone's application of 5 August 2011 as being one to set aside default judgment pursuant to s 19 of the Magistrates Court Civil Proceedings Act and not an application to set aside summary judgment pursuant to s 18 of the Act, in her reasons she nonetheless properly took into account that she needed to be satisfied that there was a satisfactory explanation for Mr Astone's absence from the hearing of 18 July 2011 and that he had an arguable case on the merits.
Magistrate Hawkins found inconsistencies in Mr Astone's reasons for being absent on 18 July 2011 and was not satisfied that there was an adequate explanation for his absence. Having regard to her reasons and the evidence before the Magistrate on this issue, I am satisfied that her findings on this were open to her on the evidence.
Even if Mr Astone's explanation for his absence was to be accepted, that does not mean that the judgment should have been set aside. Mr Astone still had to establish the merits of his claim. In other words, he had to show that, had he appeared at the hearing on 18 July 2011, judgment would not have been entered against him.
So far as the merits of Mr Astone's claim against CWS is concerned, in my view there were no reasonable prospects of success of his claim and I am not satisfied that the Magistrate erred in either fact or law in refusing to set aside the judgment, for the following reasons.
First, the express terms governing the termination of Mr Astone's employment are contained in the contract and the Animal Welfare Industry Award, cl 5(2). There was, on the evidence, no breach of that express term.
Secondly, there is no general contractual right or common law cause of action to an employee to recover financial losses arising from the unfair manner of his or her dismissal: Diaz v Schlumberger Australia Pty Ltd [No 2] [2011] WADC 135 [15] and Bednall v Wesley College [2005] WASC 101 [65].
Finally, the magistrate had regard to the relevant law concerning claims for unfair dismissal, including those based on sexual discrimination, and concluded, correctly in my view, that the Magistrates Court had no jurisdiction to determine a claim for compensation, either for unfair dismissal or sexual discrimination: see s 643, 651, 659, 663 and pt 20 of the Workplace Relations Act, 1996 (Cth); s 351, 390 ‑ 394 and 562 of the Fair Work Act, 2009 (Cth) (which replaced the Work Place Relations Act 1996, but which did not commence until 1 July 2009 after Mr Astone's dismissal) and see also s 83 ‑ 93 and s 107 of the Equal Opportunity Act 1984 (WA).
Mr Astone's application of 5 August 2011 could not succeed. The respondent CWS was and is entitled to summary judgment. Accordingly, Mr Astone's appeal will be dismissed.