Beggs v Login Systems Pty Ltd - [2013] FCCA 526

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGGS v LOGIN SYSTEMS PTY LTD

[2013] FCCA 526

Catchwords:
INDUSTRIAL LAW – Whether court has jurisdiction – whether application statute barred – whether amendment can cure defect – whether adjournment could enable defect to be cured.

Legislation:
Fair Work Act 2009 ss.723, 725

Cases cited:
Adam v Apple Pty Ltd [2012] FMCA 881
Hill v Compass Ten Pty Ltd (2012) 205 FCR 94; [2012] FCA 761
Maher v Mulgowie Pty Ltd (2010) 197 IR 64; [2010] FCA 439
Newman v East Yarra Friendly Society Trading as My Chemist Pharmacy [2011] FCA 1262
Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447; (2012) 219 IR 208; [2012] FMCA 186
Reeve v Ramsay Health Care Ltd [2013] FCA 499
Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456; [2012] FCA 628

Applicant:

SHANE PETER BEGGS

Respondent:

File number:

MLG 396 of 2013

Judgment of:

Judge Riley

Hearing date:

11 June 2013

Date of last submission:

11 June 2013

Delivered at:

Melbourne

Delivered on:

18 June 2013

REPRESENTATION

Counsel for the Applicant:

James Hooper

Solicitors for the Applicant:

Alpass & Associates

Counsel for the Respondent:

Tim Donaghey

Solicitors for the Respondent:

McMasters’ Solicitors

ORDERS

The application filed on 27 March 2013 be dismissed.
The applicant’s application in a case filed on 3 May 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 396 of 2013

SHANE PETER BEGGS

Applicant

And

LOGIN SYSTEMS PTY LTD

Respondent

REASONS FOR JUDGMENT

In his claim under the Fair Work Act 2009 filed on 27 March 2013, the applicant claimed that his employment had been unlawfully terminated.
The respondent filed an application in a case filed on 24 April 2013 in which it sought the following orders:
1.That the Application filed by the Applicant on 27 March 2013 (‘Application’) be dismissed.
2. Alternatively to Order (1) hereof, the Application be:
a. stayed; or alternatively
b.summarily dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth),
on the basis that the Applicant has no reasonable prospect of success.
3.That the Applicant pay the Respondent’s costs of this application on an appropriate basis.
The applicant accepted that he had mistakenly filed an unlawful termination application when he should have filed a general protections application.
The applicant met the respondent’s application in a case with his own application in a case which was filed on 3 May 2013. In that application, the applicant sought the following orders:
1.That the Application filed by the Applicant on the 27 March 2013 be amended from a Form 9 Application for Fair Work Commission to deal with an unlawful termination dispute to a Form 8 Application for Fair Work Commission to deal with a general protections dispute pursuant to Section 352 of the Fair Work Act 2009.
2.And further that the Applicant amend its claim to include protection against being terminated for a discriminatory reason including physical disability pursuant to Section 351 of the Fair Work Act 2009.
3.Alternatively, the Applicant seeks that the current Application be adjourned in order to allow the Applicant time to file and serve a Form 8 Application for Fair Work Commission to deal with a general protections dispute.
4.That the Respondent pay the Applicant’s costs of this Application on an appropriate basis.
The applicant relied on Maher v Mulgowie Pty Ltd (2010) 197 IR 64; [2010] FCA 439 to support his application to amend in accordance with paragraphs 1 and 2 of his application in a case. In Maher, as in the present case, the applicant had brought an unlawful termination case when he should have brought a general protections case. The Federal Court in Maher permitted an amendment. The applicant submitted that the court in this case could do the same.
However, the applicant did acknowledge that, since Maher, a differently constituted Federal Court, in Newman v East Yarra Friendly Society Trading as My Chemist Pharmacy [2011] FCA 1262, held that allowing an amendment in circumstances such as the present would be futile. The court in Newman, in circumstances that are substantially identical with those in the present case, said:
3.It is now common ground that the applicant, being a national system employee as defined in s 30C(1)(a) of the Act, was entitled to apply to FWA under s 365, obtain a certificate under s 369 and make a general protections court application under s 371.
4.In those circumstances, by reason of s 723, she is precluded from making an unlawful termination application under Part 6-1 of the Act.
5.It is a prerequisite to the exercise of the Court’s jurisdiction that, for a general protections application under s 371, the applicant obtain a certificate issued by FWA pursuant s 369.
6.The applicant does not have a certificate under s369. Instead, having applied to FWA under s 773 of the Act, the applicant has a certificate under s 777. This defect caused the respondent to apply for interlocutory orders to have the application struck out as not disclosing any reasonable cause of action.
7.In response to that application, the applicant sought leave to amend her application. The Court raised the difficulty in that course. Were the applicant to amend her application in order to bring the matter within the Court’s jurisdiction, she would need to allege that a certificate had been obtained from FWA under s 369 of the Act. As a matter of fact, that has not occurred. Consequently, any such amendment would not assist the applicant in placing her case on a proper jurisdictional footing. To allow that amendment would be futile.
8.In Maher v Mulgowie Fresh Pty Ltd (2010) FCA 439, the Court, in similar circumstances, allowed an application to amend. However, no discussion in that judgment was directed to the issue which is determinative of this case, namely whether any amendment would provide the jurisdictional basis for the application.
9.In those circumstances, the pragmatic course in this case would be for the applicant to return to FWA and make a fresh application under s 365 for FWA to deal with the dispute. FWA would then be required to conduct a conference under s 368(1). Against the background of this particular case, it is likely that such a conference would not resolve the dispute, and a certificate would issue under s 369.
10.One problem which the applicant faces in returning to FWA is the time limit on applications under s 365. The 60-day time limit prescribed by s 366(1)(a) has expired. However, s 366(1)(b) allows for FWA to extend the time under s 366(2). The exercise of the discretion to extend time under s 366(2) is a matter entirely for FWA. However, I regard the present application for an adjournment of the Court proceeding as justified because it would be surprising indeed if the present circumstances, so far as they have been outlined to the court, did not provide a basis for an extension of time under s 366(2).
As Newman was decided more recently than Maher, I ought to, and do, follow Newman. Consequently, I cannot simply allow an amendment for the reasons explained in Newman.
However, the respondent submitted that, while Newman was correct in not permitting the amendment granted in Maher, Newman was incorrect, or “incomplete” in allowing an adjournment. The respondent argued that the Federal Court in Newman failed to appreciate the bars in s.723 and s.725 of the Act.
That, in effect, is a per incuriam argument. If Newman had been decided on appeal, I would be bound to follow it, whether or not it seemed to have been decided per incuriam. Newman was not decided on appeal. Arguably, I am not obliged to follow it. However, for reasons of judicial comity, if nothing else, I ought to follow Newman unless I am satisfied it is plainly wrong, or unless there is some other more recent authority to the contrary that applies in the present case.
The respondent said that there is such authority, namely:
a)Hill v Compass Ten Pty Ltd (2012) 205 FCR 94; [2012] FCA 761;
b)Reeve v Ramsay Health Care Ltd [2013] FCA 499;
c)Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447; (2012) 219 IR 208; [2012] FMCA 186; and
d)Adam v Apple Pty Ltd [2012] FMCA 881.
In Hill, the Federal Court said the following:
Should the Court grant the applicant leave to amend after receiving a s 369 certificate?
35.In Newman, an applicant erroneously made an application under s 773 of the FW Act for FWA to deal with her unlawful termination claim. In fact, as a national systems employee as defined in ss 13 and 14 of the FW Act, the applicant was required by operation of s 723 to make a general protections claim under s 371 of the FW Act. North J took the course of adjourning the proceedings to allow the applicant to return to FWA, obtain the correct certificate and amend her pleadings in the Federal Court to bring an action under s 371.
36.This case differs from Newman. In Newman, the applicant was merely required to allege the same conduct, but under the correct provision. Mr Hill in this case seeks to bring two different types of action, a general protections court application based on an alleged breach of s 340 (the general protections court application) and an unlawful termination application resulting from an alleged breach of s 773 of the FW Act (‘unlawful termination court application’).
37. Section 725 of the FW Act states:
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
38.Section 725 of the FW Act operates to preclude Mr Hill from bringing a general protections court application so long as his unlawful termination court application is pending.
39. Section 731 of the FW Act states:
731 Unlawful termination court application
This section applies if:
(a)an unlawful termination court application has been made by, or on behalf of, the person in relation to the dismissal; and
(b)     the application or complaint has not:
(i)          been withdrawn by the person who made the application; or
(ii)     failed for want of jurisdiction.
40.Section 728 is in identical terms to s 731, except that it refers to general protections court applications instead of unlawful termination court applications.
41.It follows that as presently constituted, Mr Hill’s application to the Court is defective, since his claim is predicated upon two alleged breaches of the FW Act. Even if the Court were to grant leave to Mr Hill to obtain the correct (i.e. s 369) certificate to pursue his general protections court application, s 725 would preclude the Court from having jurisdiction to hear such application. Therefore, it would be futile for this Court to grant leave to Mr Hill while his unlawful termination court application is pending. Only one proceeding can, by virtue of s 725, be entertained.
Clearly, the Federal Court in Hill distinguished Newman. The difference was that in Hill, the applicant wanted to bring an application under the general protections provisions and an application under the unlawful termination provisions. In Newman, on the other hand, as in the present case, the applicant only wants to bring a general protections claim.
The Federal Court in Hill did not suggest that Newman was wrongly decided. The statements about the bar in s.725 of the Act made by the Federal Court in Hill only mean that an applicant cannot make an application under one of ss.726 to 732 of the Act if another one applies. The statements in Hill do not mean that the bar in s.725 would preclude the approach taken in Newman.
Reeve was an application for leave to appeal. Leave was refused, in part, because the applicant was seeking to maintain an unlawful termination application when her general protections application had already been dismissed. The Federal Court noted the bar in s.723 of the Act, which is as follows:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
Reeve is distinguishable from the present case because, in the present case, the applicant is only seeking to run one claim, being the general protections claim, whereas in Reeve, the applicant was seeking to run an unlawful termination claims after her general protections claim had been dismissed.
In Pitrau, as in the present case, the applicant had mistakenly filed an unlawful termination claim when she should have filed a general protections claim. As in the present case, the respondent in Pitrau argued that the application ought to be summarily dismissed for want of jurisdiction.
The court in Pitrau said the following:
43.In the Court’s view there is no room for doubt about the proper meaning and application of s 723 of the FW Act. Section 723 of the FW Act imposes a personal prohibition on a person making an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. That meaning:
a)     is plain on the face of the statute;
b)was intended by the Commonwealth Parliament, as confirmed by the extracts from the FW Bill Explanatory Memorandum set out above; and
c)      is confirmed by relevant case law.
In relation to
44.The requirement in s 723 of the FW Act that the unlawful termination application and the general protections court application be “in relation to conduct” and “in relation to the conduct” respectively, indicate that the conduct the subject of the general protections court application must be “the conduct” which is the subject of the “conduct” in relation to the unlawful termination application. In this case, no difficulty is caused by this issue for the conduct alleged in relation to the unlawful termination application by Ms Pitrau is the same conduct that Ms Pitrau intends be the subject of the amended application under the general protections court application if leave to amend is granted.
Conclusion – must not make
45.The unlawful termination application which was made under s 773 of the FW Act was therefore never an application which Ms Pitrau was able to make. She was personally prohibited from making that application.
46.In the Court’s view there can therefore be no application to amend under r 7.01 of the FW Act because no application was capable of being made, or can be said to have been made, either to FWA or to this Court.
Would an amendment be futile?
47.If the Court assumes that there were an application, initially to FWA under s 773 of the FW Act, and then to this Court under s 779 of the FW Act, which could be amended, as sought by Ms Pitrau, to be an application under s 352 of the FW Act, what would be the effect of such an amendment?
48. Section 371 of the FW Act provides as follows:
A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)     FWA has issued a certificate under section 369 in relation to the dispute; or
(b)     the general protections court application includes an application for an interim injunction.
49.    It is common ground that there is:
a)     no Section 369 Certificate; and
b)no application for an interim injunction sought by Ms Pitrau.
50.It is well settled that a Section 369 Certificate is a jurisdictional prerequisite to a general protections court application being made.
51.The Court cannot issue a Section 369 Certificate. Section 369 of the FW Act provides as follows:
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.
52.Under s 369 of the FW Act the issuance of a Section 369 Certificate is mandatory if FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. But it is only FWA that has power to issue a Section 369 Certificate. The issuance of a Section 369 Certificate marks the end of the conciliation or mediation functions of FWA, and is the prerequisite for the exercise of judicial power by this Court (or the Federal Court). This Court cannot issue a Section 369 Certificate for the same reasons it cannot issue the Section 777 Certificate.
53.    In the circumstances:
a)there is not an efficacious proceeding on foot that the proposed amendment can enliven; and
b)even if Ms Pitrau’s application were to be amended as sought, it would be an exercise in futility, for without a Section 369 Certificate the Court would have no jurisdiction to hear the amended application.
54.    Without more the Court would, at this stage, conclude that:
a)the application which was made to FWA under s 773 of the FW Act, and the application under s 779 of the FW Act to this Court, were statute barred by reason of s 723 of the FW Act, and this Court is therefore without jurisdiction to determine the application to this Court, and the application is therefore not capable of amendment; and
b)even if the application was not statute barred, and the application were capable of being amended as sought by Ms Pitrau, the Court is without jurisdiction because there is no Section 369 Certificate, and:
i)      only FWA can issue a Section 369 Certificate;
ii)          a Section 777 Certificate cannot be amended by this Court to make it a Section 369 Certificate; and
iii)     a Section 777 Certificate will not suffice as it is in relation to a different application and dispute. The submission by Ms Pitrau said to be based on Active Tree Services, that the dispute, whether under s 773 or s 352 of the FW Act, is but one dispute is wrong, for reasons set out above, and because Active Tree Services dealt solely with a general protections application and not an unlawful termination application.
55.It would follow that the application has no reasonable prospect of success, and that there ought to be an order for summary dismissal of the application under r 13.10(a) of the FMC Rules. … (citations omitted)
Pitrau is a decision of this court. It appears to be on all fours with the present case. In Pitrau, reference was made to Newman, and Newman was cited as authority for certain of the propositions accepted in Pitrau. However, Pitrau clearly came to a very different conclusion to the conclusion in Newman, without seeking to distinguish Newman and without expressly saying that Newman was plainly wrong.
Newman is not strictly binding upon on this court as it was not decided on appeal. Pitrau is the more recent decision. Pitrau was a carefully considered, reserved decision. I am not satisfied that it was plainly wrong. Consequently, I consider, with respect to all concerned, that I ought to follow Pitrau.
I am bolstered in that conclusion by the decision in Adam, which is another recent decision of this court that seems to be to the same effect as Pitrau.
For completeness, I was unpersuaded by the applicant’s argument that the approach taken in Newman was approved by more recent Federal Court decisions in Hill and Shea v TruEnergy Services Pty Ltd (No 1) 204 FCR 456; [2012] FCA 628. I consider both of those cases to be neutral for present purposes, as they concerned different points to the one presently under consideration and did not expressly state that Newman was correctly decided.

There will be orders that:
a)the application filed on 27 March 2013 be dismissed: and
b)the applicant’s application in a case filed on 3 May 2013 be dismissed.
I will hear the parties on the question of costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date: 18 June 2013