Birch v Wesco Electrics (1966) Pty Ltd
[2012] FMCA 5
•9 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BIRCH v WESCO ELECTRICS (1966) PTY LTD | [2012] FMCA 5 |
| INDUSTRIAL LAW – Dismissal – alleged contravention of a general protection – adverse action – age – sex – injunction – whether in relation to dismissal – whether equal opportunity claim before state administrative decision-maker statutorily prohibited. |
| COURTS AND JUDGES – Federal Magistrates Court – federal court – state administrative decision-maker – restraint – injunction. |
| PRACTICE AND PROCEDURE – Injunction – federal court – whether personal prohibition on applicant making equal opportunity claim before state administrative decision-maker– restraint – applicant or state administrative decision-maker. |
| PRACTICE AND PROCEDURE – Abuse of process – whether vexatious proceedings in any other Australian Court. |
| WORDS AND PHRASES – “must” – “must not” – “must not make” – “in relation to” – “Australian court”. |
| Acts Interpretation Act 1901 (Cth), s.15AB(2)(e) Constitution, ss.71, 109, 116 Equal Opportunity Act 1984 (WA), ss.11, 24, 66W, 75, 83(1), (4) and (5), 84, 86, 87, 91, 159, 164. Fair Work Act 2009 (Cth), ss.342, 351, 369, 370(2), 394, 539, 562, 566, 567, 568, 570, 576, 577, 725, 726, 727, 728, 729, 730, 731, 732 Federal Court of Australia Act 1976 (Cth), ss.5(1) and (2), 19, 32AA(1) Federal Magistrates Act 1999 (Cth), ss.3, 5, 6, 8(1) and (3), 10(1) & (2), 14, 15, 16, 19(1) Federal Magistrates Court Rules 2001 (Cth), rr.5.01, 11.01(1) and (2), 13.10, 13.11 Judiciary Act 1903 (Cth), s.4 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s.5(4) Transport Appeals Board Act 1980 (NSW) |
| Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission (NSW) (2007) 158 FCR 104; [2007] FCAFC 50 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291; [2005] FCAFC 91 Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 Yao v Chang & Anor [2007] FMCA 1340 |
| Quick J and Garran RR, Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901) Quick J and Groom L, The Judicial Power of the Commonwealth (1904) The Parliament of the Commonwealth of Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973) Zines L, Federal Jurisdiction in Australia (3rd ed, Federation Press, 2002) |
| Applicant: | REBECCA BIRCH |
| Respondent: | WESCO ELECTRICS (1966) PTY LTD |
| File Number: | PEG 110 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Perth |
| Delivered on: | 9 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Moss |
| Solicitors for the Applicant: | MDS Legal |
| Counsel for the Respondent: | Mr M Nazareth |
| Solicitors for the Respondent: | NECA Legal |
| Counsel for the Intervener: | Mr J Rosales-Castaneda |
| Solicitors for the Intervener: | Equal Opportunity Commission of Western Australia |
ORDERS
In relation to the amended application in a case filed by the respondent on 26 August 2011, the Court orders that:
(a)the applicant be permanently restrained from proceeding with, or taking any further action or steps in, or in relation to, her complaint under section 83 of the Equal Opportunity Act 1984 (WA), lodged with the Commissioner for Equal Opportunity on 19 May 2011; and
(b)the amended application in a case otherwise be dismissed, save as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 110 of 2011
| REBECCA BIRCH |
Applicant
And
| WESCO ELECTRICS (1966) PTY LTD |
Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
Rebecca Birch[1] has made an application[2] to this Court under ss.351(1) and 539(2) of the Fair Work Act 2009 (Cth).[3] Ms Birch alleges that Wesco Electrics (1966) Pty Ltd[4] took adverse action[5] against her by dismissing her because of her age and sex.
[1] “Ms Birch”.
[2] “Application”.
[3] “FW Act”.
[4] “Wesco Electrics”.
[5] FW Act, s.342.
Ms Birch has also made a complaint to the Commissioner for Equal Opportunity[6] under s.83(1) of the Equal Opportunity Act 1984 (WA)[7] alleging discrimination on the grounds of sex, age and sexual harassment in her employment,[8] contrary to ss.11, 24 and 66W of the EO Act.
[6] “EO Commissioner”.
[7] “EO Act”.
[8] “EO Complaint”.
Presently before the Court is an application in a case to:
a)stay the EO Commissioner from dealing with the EO Complaint, pending further order of this Court;
b)bar Ms Birch from proceeding with any proceeding concerning the subject matter of the Application and the EO Complaint, other than the Application; and
c)alternatively, to summarily dismiss the Application.
Application
The Application, filed on 4 May 2011, seeks orders for:
a)lost earnings in the sum of $2,713.84; and
b)compensation for loss and damage suffered by reason of Wesco Electrics’ alleged contravention of s.351(1) of the FW Act, as the Court considers appropriate.
The “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”[9] alleges a contravention in the following terms:
1.The applicant alleges a breach by the respondent of section 351(1) of the Fair Work Act 2009 (Cth), in that the respondent took adverse action against the applicant, who was an employee of the respondent, because of the applicant’s age and sex.
2.In particular, the applicant alleges that she was dismissed because she refused to drink alcohol and socialise with the respondent’s director Michael Mannion and his friends, and that she would not have been dismissed for that reason if not for the fact that she was young and female.
[9] “Claim Form”.
A copy of a certificate issued by Fair Work Australia under s.369 of the FW Act, dated 20 April 2011, is attached to the Claim Form.[10]
[10] A certificate under s.369 of the FW Act is a jurisdictional prerequisite to a valid general protections application being made to this Court: Poole v Rod Baker & Co [2011] FMCA 357 at para.24 per O’Sullivan FM; Hughes v Mainrange Corporation Pty Ltd (No. 2) (2009) 190 IR 351 at 354 per Lucev FM; [2009] FMCA 1044 at para.14 per Lucev FM (“Mainrange Corporation (No. 2)”).
Response
Wesco Electrics opposes the making of orders granting any remedy to Ms Birch, and seeks to have the Application dismissed.
Background factual matters
The EO Complaint was received by the EO Commissioner on 19 May 2011 under cover of a letter from Ms Birch’s solicitors.[11]
[11] Affidavit of Yvonne Daphne Henderson, affirmed 9 September 2011 (“EO Commissioner’s Affidavit”) at para.2 and Annexure EOC01 (“EO Complaint Form”).
The EO Complaint form completed by Ms Birch’s solicitors identifies Mr Michael Mannion and Wesco Electrics as those whom Ms Birch believes discriminated against her, and which she describes (seemingly collectively) as her “Former Employer”. Ms Birch identifies the type of discrimination that she considers that she has suffered as being discrimination on the basis of sex, sexual harassment and age. Ms Birch identifies the discrimination as having occurred at her place of employment or work from early 2010 until early 2011.[12]
[12] EO Complaint Form.
The EO Complaint form asks that the complainant “attach copies of any documents that may help us with our investigation”. In that regard Ms Birch has attached a letter from Wesco Electrics, being the letter terminating her employment. In response to the question “[h]ow has this affected you?” Ms Birch has written:
I was subjected to mental anguish, embarrassment and humiliation during my employment. My employment was then wrongfully terminated due to my failure to tolerate and accept the discrimination.[13]
[13] EO Complaint Form.
The particulars of the EO Complaint are as follows:
The Applicant (Rebecca Birch) was continually subjected to discrimination by the Respondent (Wesco Electrics (1966) Pty Ltd) during her employment with the Respondent from early 2010 until termination of her employment on 31 January 2011.
1.The Respondent routinely discriminated against the Applicant because of her sex and age, and subjected the Applicant to sexual harassment, by reason of the following:
1.1causing the Applicant humiliation and embarrassment by sending her explicit pornographic material by email;
1.2allowing a friend of Mike Mannion (a director of the Respondent) to send numerous emails from the Applicant’s work email account to male persons known by the friend, with content such as “Meet me in the toilet I want to fuck”, which caused the Applicant humiliation and embarrassment;
1.3treating the Applicant in a demeaning manner and causing her humiliation and embarrassment by requiring her to fetch beers for Mike Mannion and his friends when Mr [Mike] Mannion’s friends visited him in the Respondent’s workplace;
1.4requiring the Applicant to drive Mike Mannion after the Applicant had been drinking alcohol;
1.5insisting that the Applicant drink alcohol and socialise with Mike Mannion and his friends;
1.6causing the Applicant humiliation and embarrassment by sending sexual text messages such as on 31 January 2011 when she was directed by an abrupt text message from Mike Mannion to pick him up from Coco’s, she replied with “Where’s the love?” (as in “Why aren’t you asking me nicely?”) and to which Mr [Mike] Mannion replied “In my pants”;
1.7on one occasion during 2010 Mike Mannion’s friend told the Applicant to lower her top so that he could see her cleavage when she arrived at Coco’s to collect Mr [Mike] Mannion. Mr [Mike] Mannion heard that comment and did nothing to object to it;
1.8on another occasion when the Applicant arrived to collect Mike Mannion from Coco’s, he urinated in front of her in the undercover car park of the restaurant;
1.9on numerous occasions both Mike Mannion and Robert Mannion (also a director of the Respondent) told the Applicant to dress for work in a way that would show her cleavage;
1.10on another occasion during 2010 Mike Mannion required the Applicant to collect him from Coco’s, take him to the Como Hotel and wait while he had a drink before taking him to the office. While at the Como Hotel Mr [Mike] Mannion placed his hand on the Applicant’s thigh. Later that day he pushed her hair behind her shoulders in an affectionate manner while she was driving and when the Applicant dropped Mr [Mike] Mannion at work he hugged her several times;
1.11in March 2010 Mike Mannion started calling the Applicant by the nickname “Mumbles” or “Mumblers”, which is urban slang for “a woman wearing clothing that is far too tight for her, often with no underwear, so that you can see the shape and movement of her genitals. Her lips are moving but you can’t hear what she is saying” (see Mr [Mike] Mannion told numerous people, including the applicant, that he gave the Applicant that nickname after she arrived to help clean the office after the March 2010 hailstorm wearing a pair of gym tights;
1.12Mike Mannion also referred to the Applicant by the name of “Rachael”, who was the previous employee who sat in the applicant’s chair. While demeaning, the Applicant tolerated the nickname as it was preferable to the alternate nickname of Mumbles;
1.13on another occasion Mike Mannion asked the Applicant’s co-worker to prepare a job description for the applicant’s role. Mr [Mike] Mannion then required the Applicant to sit in the boardroom with himself, the Applicant’s co-worker and Mr [Mike] Mannion’s friend while Mr [Mike] Mannion read through the job description. Mr [Mike] Mannion and his friend ridiculed the Applicant as they read through the job description. For example, Mr [Mike] Mannion said “Sending faxes – scrap that she can’t do that”. The Applicant found that conduct humiliating and embarrassing;
1.14Mike Mannion would regularly make jibes about the Applicant’s weight including, for example, an occasion when Mr [Mike] Mannion said “You should be a newsreader and [a female co-worker] should be a weather girl because when you stand up everything looks shit”. The Applicant understood Mr [Mike] Mannion to mean that she should sit behind a desk so that she was only seen from the chest up;
1.15Mike Mannion made frequent other references to the Applicant’s body including telling her she should not be eating lunch, calling her fat, telling her that because she was younger than he and her female co-worker she should be slimmer and teasing her about the size of her upper arms; and
1.16on another occasion during her employment the Applicant attended lunch at the Must Wine Bar with Mike Mannion, Rob Mannion, the Applicant’s co-worker and Mike Mannion’s friend. The men present brought the subject of sex into the conversation. Mr [Mike] Mannion’s friend asked the Applicant whether she liked to place her finger into her partner’s anus during sexual intercourse. The Applicant said that was private and refused to answer. Mr [Mike] Mannion’s friend then proceeded to call our client “Bridget with a dirty digit” for the remainder of the lunch. That incident, and the reference by Mr [Mike] Mannion’s friend to the Applicant as “Bridget with a dirty digit”, occurred in the presence of both Mike Mannion and Rob Mannion, neither of whom intervened.
2.In relation to point 1.5 above, the Applicant says that the Respondent discriminated against her by terminating her employment on the first occasion that she refused to drink alcohol and socialise with Mr [Mike] Mannion and his friends.[14]
[14] EO Complaint Form, Attachment “A”.
On 30 June 2011 the EO Commissioner wrote to Ms Birch[15] requesting that she show “good cause” as to why the EO Commissioner should accept those allegations in the EO Complaint which were outside of the 12 month time limitation.[16]
[15] EO Commissioner’s Affidavit at para.6 and Annexure EOC04.
[16] EO Act, s.83(4) and (5).
On 18 July 2011 the EO Commissioner received a letter from Ms Birch’s solicitors making submissions as to why Ms Birch satisfied the “good cause” requirements for the EO Commissioner to consider the out of time allegations.[17]
[17] EO Commissioner’s Affidavit at para.7 and Annexure EOC05 (“Ms Birch’s Solicitors’ 18 July 2011 Letter”).
Ms Birch’s Solicitors’ 18 July 2011 Letter includes the following passages:
Ms Birch’s employment with the Respondent was terminated on 31 January 2011, following discrimination against her as a result of her age and sex. Ms Birch was unrepresented at that time and filed an application pursuant to the Fair Work Act 2009 on 9 February 2011 alleging unfair dismissal pursuant to section 394 of the Fair Work Act 2009.
Ms Birch retained this firm on 23 February 2011. Efforts were then made to resolve this matter at conciliation conferences on 10 March and 19 April 2011 and during without prejudice negotiations between the parties. On March 23 2011, Ms Birch’s original application was discontinued and an application pursuant to the general protection provisions of the Fair Work Act 2009 was filed in its place (Fair Work Application).[18] The allegations contained within the Fair Work Application remained the same.
Unfortunately, the efforts to resolve this matter were unsuccessful. It was considered by this firm that the sexual harassment elements of Ms Birch’s allegations also fell within the provisions of the Equal Opportunity Act 1984 (Act) and that a complaint was appropriate pursuant to section 83 of the Act.
The Fair Work Application remains ongoing in the Federal Magistrates Court but is not listed for hearing until January 2012.[19]
…
Prejudice to Ms Birch
…
Further, Ms Birch is a young person on a limited salary and this firm wishes to avoid the unnecessary expenditure of legal fees. Had the matter brought pursuant to the Fair Work Act 2009 been resolved through negotiation, the [EO] Complaint would not have been brought. Ms Birch’s interests should not be prejudiced for this reason.
[18] “Fair Work Application”.
[19] EO Commissioner’s Affidavit, Annexure EOC05.
Prejudice to the Respondent
It is submitted that there is no prejudice to the Respondent if the entirety of the Complaint is included within the investigation.
Subject to the Commissioner’s determination, the Respondent will be required to respond to allegations from Ms Birch in any event. The inclusion of the Pre- 19 May Events will add little to the task or to the evidence which the Respondent would need to submit.
Further, the Respondent has been aware of the allegations forming the substance of the [EO] Complaint since, at least, 23 March 2011, when the original application pursuant to the Fair Work Act 2009 was filed. The Respondent would therefore have been aware of the necessity of gathering any evidence it thought necessary, including proofs of evidence from employees. As far as Ms Birch is aware, the main witnesses, who were employees of the Respondent at the time of her employment, are still employed by the Respondent.
In summary, it is submitted that the reasons for the delay are justifiable, that the delay has not been lengthy and that any prejudice caused to the Respondent by the inclusion of the Pre- 19 May 2010 Events is outweighed by the prejudice which would be caused to Ms Birch should only a portion of the incidents comprising the discriminatory behaviour against her be included in the investigation.[20]
[20] EO Commissioner’s Affidavit, Annexure EOC05.
On 19 July 2011 the EO Commissioner sent correspondence to Wesco Electrics advising that Ms Birch had alleged in the EO Complaint that she had been discriminated against on the grounds of age, sex and sexual harassment in the area of employment, but that part of her complaint involved allegations outside the 12 month limitation period.[21] The EO Commissioner sought reasons as to why Wesco Electrics might be prejudiced if the out of time allegations were accepted.[22]
[21] EO Act, s.83(4) and (5).
[22] EO Commissioner’s Affidavit, Annexure EOC06 (“EO Commissioner’s 19 July 2011 Letter”).
On 29 July 2011 Ms Birch filed an affidavit in these proceedings affirmed on 28 July 2011.[23] In Ms Birch’s 28 July 2011 Affidavit she recounts the following:
[23] “Ms Birch’s 28 July 2011 Affidavit”.
a)that she was employed by Wesco Electrics between 2 February 2010 and 31 January 2011;[24]
[24] Ms Birch’s 28 July 2011 Affidavit at para.3.
b)that her “bosses” at Wesco Electrics were Michael and Rob Mannion, and that the other employee who did administrative work with her, and who was her supervisor, was Rhonda Anderson;[25]
[25] Ms Birch’s 28 July 2011 Affidavit at para.8; “Ms Anderson”.
c)that her employment with Wesco Electrics was terminated on 31 January 2011 without notice, and without previous warnings in relation to her employment, other than for very minor issues;[26]
[26] Ms Birch’s 28 July 2011 Affidavit at para.9.
d)that in relation to a request by Mike Mannion for her to pick him up from a restaurant called Coco’s on 31 January 2011, Ms Birch says as follows:
11.On 31 January 2011, I was doing my work as normal. At about 3.00pm the boss, Mike, texted me telling me to pick him up from Cocos. He had been having lunch with his mates there. Rhonda had dropped him off there.
12.I messaged him back “Where is the love?” as in “Why aren’t you asking me nicely?” He replied “In my pants”.
13.I messaged back “That is a bit inappropriate”.
14.He messages back “Be here at 4.30 choppy chop”.
15.After that I did not reply. I did call him to make sure that he still wanted me to pick him up. I got to Cocos at about 4.00pm. I went inside and found that he was not ready to leave. He was having a drink with one of his mates, Brad Zemek. Brad owns Bentley IGA. They got me a chair and offered me a drink. I said “No I’m fine. I have to drive”. They got me a champagne anyway. I sipped it but did not drink it.
16.Mike left the table to take a telephone call. I waited approximately 5 minutes until Mike came back. I was not happy to be there as I had just broken up with my boyfriend and was feeling upset about that, and I was upset about the text message Mike had sent me earlier.
17.Mike said to me “What’s wrong? You’ve come to lunch to pick us up and you’re not in a happy mood. You are bringing me down.” He told me to leave and said that he would get a taxi to the Subi Hotel. I told Mike that I would wait but that we should hurry up and leave because of the traffic. Mike eventually told me that I should just go back to work and he would get a taxi. He said that about four times. I said “Are you sure Mike?” and he said yes and I left. I had been there for about 20 minutes.
18.Mike was on the phone to Rhonda while I was there. He was telling her to tell me to go home because I was annoying him. He put Rhonda on the telephone to me and I spoke to her. I then left Cocos.
19.I messaged Mike about 15 minutes after I left and apologised for not being in the right frame of mind. I told Mike that I should have kept my personal life out of my professional life.
20.He replied with “Yes you need to sort that out. However you are not required on Monday.”[27]
[27] Ms Birch’s 28 July 2011 Affidavit at paras.11-20.
e)that she attended a meeting at Wesco Electrics’ office on the next Monday, at which the following occurred:
27.Mike asked if I wanted to know why I was being fired. I said “Yes, I would love to know”. He said that I never want to do things, they have to tell me to do everything twice. An example he gave was that they have to tell me to get beers out of the fridge more than once and ask me to pick them up more than once. He did not really give me a specific reason for dismissing me.[28]
[28] Ms Birch’s 28 July 2011 Affidavit at para.27.
f)that after a major storm in Perth on 22 March 2010 which had caused damage to Wesco Electrics’ office she went to the office to help clean up wearing a pair of gym tights. Mr Mike Mannion referred to her pants as “mumbles” or “mumblers”, and thereafter called her “mumbles” or “mumblers” at work. It is said that he did so because of the gym tights worn by Ms Birch to help clean the office. Ms Birch says that she understands the term “to be slang for tight clothing on a woman, which allows a person to see the shape and movement of the women’s genitals”, and that she found the nickname offensive;[29]
[29] Ms Birch’s 28 July 2011 Affidavit at para.31.
g)that she would frequently have to pick up Mr Mike Mannion from lunch, mostly at Coco’s Restaurant, and that he would insist that she sit down and have a drink even though she was driving, in work time and had outstanding work to complete, but she was always careful to only have one drink as she had to drive;[30]
[30] Ms Birch’s 28 July 2011 Affidavit at para.36.
h)that on one of the occasions on which she came to pick up Mr Mike Mannion from Coco’s, one of his friends, Mark Marassis said to her “you should lower your top when you pick Mike up so I can see your cleavage”, and that Mr Mike Mannion, who was sitting across from Mr Marassis, said nothing to her and just smiled.[31] On this occasion, when Ms Birch and Mr Mike Mannion went to the car parked in the undercover car park, Mr Mike Mannion urinated on a pole in the car park;[32]
[31] Ms Birch’s 28 July 2011 Affidavit at para.37.
[32] Ms Birch’s 28 July 2011 Affidavit at para.38.
i)that at a time around the same date as Mr Mike Mannion’s friend made a comment about her cleavage, set out above, she had to pick Mr Mike Mannion up from Coco’s Restaurant and take him to the Como Hotel. Here Mr Mike Mannion put a hand on her thigh. When Ms Birch was driving him back to the office, he pushed her hair behind her shoulders whilst looking down her top and said “It looks better when it’s behind your shoulders”, to which Ms Birch responded “No, I like it how it is.” When they arrived at work Mr Mike Mannion hugged Ms Birch three or four times, and then after she had walked across the road towards her car, Mr Mike Mannion called her back, and hugged her again;[33]
[33] Ms Birch’s 28 July 2011 Affidavit at para.39.
j)that on another occasion before Christmas 2010 Ms Birch went to Must Wine Bar for lunch with Messrs Mike and Rob Mannion, Ms Anderson and a friend of Mr Mike Mannion called Andrew. The following then occurred:
41.…The men began talking about sex. I can’t remember the exact words of the conversation. At one point, Andrew asked me if I liked to put my finger in my partner’s anus during sex. I said that that was private and I refused to answer. Andrew then began calling me “Bridget with the dirty digit” for the remainder of the lunch. Both Mike and Rob were at the table when this comment was made. Neither of them said anything or tried to stop Mike’s friend from making the comment.[34]
[34] Ms Birch’s 28 July 2011 Affidavit at para.41.
k)that Mr Mike Mannion would send her rude emails at least a couple of times a week, and follow-up with inquiries as to what Ms Birch thought of the emails;[35]
l)that on another occasion in the second half of 2010 Mr Mike Mannion had been out to lunch with Andrew Doig,[36] and that Mr Doig had been on her computer, and had sent emails from her email address saying “Meet me in the toilet. I want to fuck” and other inappropriate messages, as a consequence of which Ms Birch had to send an email of apology to the men to whom the messages had been sent. Ms Birch says that Mr Mike Mannion was with Mr Doig when she left the office in the afternoon the message was sent;[37]
m)that on numerous occasions comments were made about Ms Birch’s appearance, including the following:
i)Messrs Michael and Rob Mannion told her on a number of occasions to “dress for work in a way that would show … cleavage”;[38]
ii)that Mr Mike Mannion called her “fat” on a number of occasions, told her that she should not be eating lunch, that she should be slimmer, and described her upper arms along the lines of them being “tuckshop arms”;[39] and
iii)that Mr Mike Mannion said to her that she “should be a newsreader” because “when you stand up, everything looks shit”; [40] and
n)that towards the end of 2010 a job description was prepared for her, and that she was made to sit in the Wesco Electrics’ boardroom with Mr Mike Mannion, Ms Anderson and Andrew Doig as Mr Mike Mannion went through the job description making comments that she could not do basic duties, including a comment where Mr Mike Mannion said “sending faxes – scrap that, she can’t do that”.[41]
[35] Ms Birch’s 28 July 2011 Affidavit at para.42.
[36] “Mr Doig”.
[37] Ms Birch’s 28 July 2011 Affidavit at paras.48-51.
[38] Ms Birch’s 28 July 2011 Affidavit at para.53.
[39] Ms Birch’s 28 July 2011 Affidavit at para.54.
[40] Ms Birch’s 28 July 2011 Affidavit at para.56.
[41] Ms Birch’s 28 July 2011 Affidavit at para.55.
In a further affidavit affirmed on 5 September 2011[42] Ms Birch referred to the lunch at Must Wine Bar set out above and says as follows:
In the July Affidavit, I referred to a lunch at Must wine bar. When I swore the July Affidavit, I didn’t remember how the conversation that ended in Andrew Doig calling me ‘Bridget with the dirty digit’ started but I now agree that Rhonda said words to the effect that “a man’s g-spot is in his anus”. I did not say words to the effect of “I stick my finger in my boyfriend’s ass all the time” or “I couldn’t understand why my boyfriend didn’t like it when I put my finger in his arse” or “There’s no problem with that, I do it to my boyfriend all the time.”. I consider that sort of information to be private and was very embarrassed at being called ‘Bridget with the dirty digit’.[43]
[42] “Ms Birch’s 5 September 2011 Affidavit”.
[43] Ms Birch’s 5 September 2011 Affidavit at para.33.
An employer association, the National Electrical and Communications Association,[44] responded to the EO Commissioner’s 19 July 2011 Letter by letter dated 4 August 2011 on behalf of Wesco Electrics.[45]
[44] “NECA”.
[45] NECA letter 4 August 2011, being Annexure WEO2 to Mr Nazareth’s 19 August 2011 Affidavit (“NECA 4 August 2011 Letter”).
The NECA 4 August 2011 Letter:
a)objected to the EO Complaint being made on the basis of s.725 of the FW Act, alleging that the Application was an application of a kind described in s.726 of the FW Act,[46] and that the EO Complaint was a matter of a kind described in s.732 of the FW Act. The EO Commissioner was advised that, if the EO Complaint was not dismissed or stayed, Wesco Electrics would seek a permanent injunction from this Court under ss.14 and 15 of the Federal Magistrates Act 1999 (Cth);[47]
b)objected to an extension of time for a variety of reasons, which are not presently relevant; and
c)argued that the EO Complaint was oppressive because Wesco Electrics had already had to deal with the allegations made in two separate jurisdictions (the unfair dismissal application to Fair Work Australia[48] and the Application in this Court), and that additional and unreasonable costs were being incurred as a consequence, and that the EO Complaint was therefore an abuse of process.
[46] It is in fact an application of a kind referred to in s.728(a) of the FW Act: see para.32 below.
[47] “FM Act”.
[48] “FWA”.
The EO Commissioner wrote to Ms Birch on 17 August 2011 advising that:
I considered the submissions regarding the pre- 19 May 2010 allegations being out of time and decided that good cause has been shown for all of events complained of from 2 February 2010 to be investigated.[49]
[49] EO Commissioner’s 17 August 2011 Letter, being annexure EOC10 to EO Commissioner’s Affidavit (“EO Commissioner’s 17 August 2011 Birch Letter”).
The EO Commissioner wrote to Wesco Electrics on 17 August 2011 advising that:
I have considered the responses from you and Ms Birch regarding the events which occurred prior to 19 May 2010 and decided that good cause has been shown for all events complained of from 2 February 2010 to be investigated.[50]
[50] EO Commissioner’s 17 August 2011 Letter, being Annexure EOC11 to EO Commissioner’s Affidavit (“EO Commissioner’s 17 August 2011 Wesco Electrics Letter”).
The EO Commissioner’s 17 August 2011 Wesco Electrics and Birch Letters did not address Wesco Electrics’ jurisdictional objection to the EO Commissioner dealing with the EO Complaint, nor did it explain why there was “good cause” to investigate those allegations falling outside the 12 month time limit.
The EO Commissioner’s 17 August 2011 Wesco Electrics and Birch Letters also advised that a conciliation conference was being convened at the offices of the EO Commissioner on Tuesday 13 September 2011. A similar letter was sent to Mr Mike Mannion.
By email dated 18 August 2011 NECA advised the solicitors for Ms Birch that they intended to make an urgent application to this Court for an order to stay the EO Complaint.[51]
[51] See Annexure WEO5 to Mr Nazareth’s 19 August 2011 Affidavit.
Application in a case
On 19 August 2011 Wesco Electrics filed an application in a case seeking the following orders:
1.The Respondent seeks that the hearing of this application be expedited, pursuant to Rule 5.01 of the Federal Magistrates Court Rules 2001 (Cth).
2.The Respondent seeks that matter number CIC11/0293 in the Equal Opportunity Commission of Western Australia be stayed, pending further order of the court.
3. In the alternative, the Respondent seeks a declaration that the Equal Opportunity Commission of Western Australia has no jurisdiction in respect of the subject matter contained in matter CIC11/0293 by operation of Sub-division B of Division 3 of Part 6-1 of the Fair Work Act 2009 (Cth).
Court orders – 25 August 2011
The application in a case came on before this Court on 25 August 2011,[52] at which time the Court made orders, including orders:
a)for the filing of an amended application in a case; and
b)for the hearing of:
i)the amended application in a case; and
ii)an application to join the EO Commissioner as a third party to the proceedings.
[52] “25 August 2011 Orders”.
Amended application in a case
On 26 August 2011 Wesco Electrics filed an amended application in a case in the following terms:
1.The Equal Opportunity Commissioner of Western Australia be stayed from proceeding with matter number CIC11/0293, pending further order of the court.
2.Pursuant to rule 13.11 of the Federal Magistrates Court Rules, the Applicant be barred from continuing with any proceeding other than PEG 110/2011.
3.In the alternative, this matter, PEG 110/2011, be summarily dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules.
Despite the terms of the amended application in a case the matter was argued on the basis that, in addition to the orders sought in the amended application in a case, that:
a)Ms Birch be barred from proceeding with any other application or complaint relating to the matter the subject of the Application on the basis of abuse of process generally, and not just on the basis of r.13.11 of the Federal Magistrates Court Rules 2001 (Cth);[53] and
b)an injunction issue against Ms Birch and the EO Commissioner on the basis of an abuse of process arising from the EO Complaint as it was a second application in relation to the same subject matter as the Application.
The Court has therefore considered the matter as if the above issues were part of the amended application in a case. That approach is consistent with the Court’s obligation to consider the whole of the matter, and to act informally and with expedition.[54]
[53] “FMC Rules”.
[54] FM Act, ss.3 and 14.
Consideration
Section 725 of the FW Act
Section 725 of the FW Act provides as follows:
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.
Lest there be any doubt about the meaning of s.725 of the FW Act the Fair Work Bill 2008 Explanatory Memorandum[55] provides that:
2707 This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708 Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
[55] Acts Interpretation Act 1901 (Cth), s.15AB(2)(e); Fair Work Ombudsman v Wongtas Pty Ltd [2011] FCA 633 at para.44 per Cowdroy J.
There is no dispute that Ms Birch is a person who has been dismissed for the purposes of s.725 of the FW Act. The question which then arises is whether Ms Birch has made “an application or complaint of a kind referred to in any one of sections 726 to 732 of the FW Act in relation to the dismissal if any other of those sections applies.”
The Application is an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Division 5 of Part 3-1 of the FW Act, in which s.351 of the FW Act, which is alleged to have been contravened, appears. The Application is an application under Division 2 of Part 4-1 of the FW Act as it is an application under s.539 of the FW Act in relation to a contravention of a civil remedy provision, s.351(1) of the FW Act being a civil remedy provision by reason of s.539(2), Item 11 of the FW Act. The Application is not an application which has been withdrawn by Ms Birch or which has failed for want of jurisdiction.[57] The Application is therefore a general protections court application as defined in s.370(2) of the FW Act, and for the purposes of s.728(a) of the FW Act.
[57] FW Act, s.728(b).
Because the Application was made before the EO Complaint the question which then arises is whether the EO Complaint is an “application or complaint” to which “any other of those sections applies”, that is any of ss.726 to 732 of the FW Act, save for s.728 which applies to the Application.
Wesco Electrics asserts that s.732 of the FW Act applies to the EO Complaint. Section 732 of the FW Act relevantly provides:
(1) This section applies if:
(a) an application or complaint under another law 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.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
The EO Complaint is a “complaint alleging that a person [Wesco Electrics] has committed a contravention” of the EO Act, which has been “lodged in writing with the [EO] Commissioner”.[58]
[58] EO Act, s.83(1); EO Commissioner’s Affiavit, para.2 and EO Complaint Form.
The EO Act is a law of a State, being a law of the State of Western Australia. It is thus “a law of a State” for the purposes of s.732(2)(b) of the FW Act. That s.732(2)(b) of the FW Act was intended to apply to State anti-discrimination and equal opportunity law is confirmed by the FW Bill Explanatory Memorandum, which provides that:
Clause 732 deals with an application or complaint under another law. This includes an application or complaint made under a law of a State or Territory. This reflects the fact that various State or Territory laws are not excluded by Part 1-3 of the Bill (Application of this Act) and national system employees could therefore seek remedies under those Acts. For example, a person whose employment has been terminated or who has been adversely treated in employment for reasons such as race, colour, sex, sexual preference, age or other discriminatory reasons could seek a remedy under a State or Territory anti‑discrimination or equal opportunity law, or a remedy for contravention of protections under Division 5 of Part 3-1 (General Protections), but not both.[59]
[59] FW Bill Explanatory Memorandum, cl.2715.
Because of the use of the disjunctive “or” in the phrase “application or complaint” it is clear that the Commonwealth Parliament intended ss.725 and 732 of the FW Act to apply to any “complaint” made under a law of a State, thereby including a complaint under s.83(1) of the EO Act. The EO Complaint is therefore a “complaint under another law” under s.732(2) of the FW Act.
What then is the effect of s.725 of the FW Act in relation to the EO Complaint? To answer that question it is first necessary to look at the proper construction of s.725 of the FW Act.
Under s.725 of the FW Act:
a)first, a person making an application or complaint must have been dismissed;
b)second, that dismissed person must have made an application or complaint of a kind referred to in ss.726-732 of the FW Act that has not been withdrawn or failed for want of jurisdiction; and
c)third, the dismissed person “must not make” another application or complaint of a kind referred to in ss.726-732 of the FW Act “in relation to the dismissal” unless the initial application been withdrawn or failed for want of jurisdiction.
The first and second elements of s.725 of the FW Act are fulfilled in this case, because:
a)Ms Birch is the person making the Application and she has been dismissed; and
b)the Application is an application under s.728(a) of the FW Act which has not been withdrawn or failed for want of jurisdiction.
What then is meant by the use of the phrase “must not make” in s.725 of the FW Act?
The use of “must” is indicative of an imperative command, either positive or negative, depending upon the word or words which follow it in the relevant statutory provision. It expresses necessity in the sense of an obligation or requirement.[60]
[60] The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”).
In Posner v Collector for Inter-State Destitute Persons (Victoria),[61] one High Court Justice observed that:
“Section 56 of the Justices Act (W.A.) requires, with certain immaterial exceptions, that the summons must be served on the defendant personally. “Must” is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice. It is not merely directory. Compliance is essential to an effective hearing of the summons.”[62]
[61] (1946) 74 CLR 461 (“Posner”).
[62] Posner at 490 per Williams J.
In Kosovich v Mancini,[63] the South Australian Supreme Court was dealing with road transport legislation which provided that the mass of a vehicle “must be determined in accordance with the regulations”.[64] The South Australian Supreme Court observed as follows:
“It seems to me that “must be determined” imposes an obligation which cannot be regarded as directory only. I have looked both in the dictionary and in Maxwell. The appropriate meaning of “must” in the Shorter Oxford English Dictionary is:
“Expressing necessity: Am (is are) obliged or required to; have (has) to; it is necessary that (I, you, he, it, etc) should”. “In ordinary usage, ‘may’ is permissive and ‘must’ is imperative” (Maxwell on Interpretation of Statutes 12th ed. (1969) p.324),”[65]
and
“If the wish of Parliament had been to make the subsection directory it could easily have done so by using the word “may” instead of the word “must””.[66]
[63] (1982) 31 SASR 272 (“Kosovich”).
[64] Kosovich at 275 per Millhouse J.
[65] Kosovich at 275 per Millhouse J.
[66] Kosovich at 276 per Millhouse J.
In Australian Fisheries Management Authority v PW Adams Pty Ltd[67] the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives were conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must”, and the linking of each of the five objectives with the word “and”, meant that each objective must be pursued by the Minister and by the Authority.[68]
[67] (1995) 61 FCR 314 (“Adams”).
[68] Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed).
In dealing with migration legislation which required that applications “must” be lodged within a certain time limit, the Federal Court, having cited Posner and Kosovich as authority for the proposition that “must” is a word of absolute obligation, went on to observe that:
“[s]uch an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory”.[69]
[69] Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 391 per Merkel J.
In Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors[70] this Court, having set out the passages from the authorities cited immediately above, observed that:
The above authorities strongly indicate that the use of the word “must” in the phrase “must advise” imposes an obligation on the Court to exercise the required function, namely, to advise the parties to use the dispute resolution process, being mediation in this case.[71]
[70] [2010] 244 FLR 335; [2010] FMCA 932 (“Bidding Buzz”).
[71] Bidding Buzz FLR at 347 per Lucev FM; FMCA at para.40 per Lucev FM.
The word “not” is an adverb of negation.[72]
[72] Shorter Oxford English Dictionary, Volume II, page 1415.
In Halwood Corporation Ltd v Roads Corporation[73] in incisive obiter dicta remarks concerning allegedly plain English drafting, the Victorian Supreme Court Court of Appeal observed that “must not” was a “blunt instrument” when used in a statute, and not always appropriate as a substitute for “shall not”,[74] and went on to say that:
Even so, it may be useful to acknowledge that, whatever can be said of “must” as a preferred manner of designated and personal obligation, “must not” is by no means always logically interchangeable with “shall not”; and it is generally not so unless a personal prohibition is intended”.[75]
[73] [1998] 2 VR 439 (“Halwood Corporation”).
[74] Halwood Corporation at 445 per Tadgell JA.
[75] Halwood Corporation at 446 per Tadgell JA (emphasis added).
The words “must not” appear in s.32AA(1) of the Federal Court of Australia Act 1976 (Cth),[76] which provides that:
[76] “FC Act”.
(1) Proceedings must not be instituted in the Court in respect of a matter if:
(a) the Federal Magistrates Court has jurisdiction in that matter; and
(b) proceedings in respect of an associated matter are pending in the Federal Magistrates Court.[77]
[77] A similarly worded provision with respect to commencing matters in this Court where a matter has been commenced in the Federal Court appears in s.19(1) of the FM Act: “Proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court.”
In Boumelhemv Commonwealth Bank of Australia[78] there were bankruptcy proceedings before this Court that had been adjourned pending the completion of related proceedings in the District Court of New South Wales. An application to the Federal Court sought a stay of the bankruptcy proceedings until an appeal from the judgment of the District Court of New South Wales was heard, and an order that the operation of any sequestration order made in bankruptcy proceedings be similarly stayed.[79] The Federal Court, having set out s.32AA(1) of the FC Act, observed that:
The application to this Court therefore appears statute barred.[80]
and
As the application seems statute-barred and no argument was advanced to the contrary and as the orders sought were moot, the application was dismissed.[81]
[78] [2008] FCA 1121 (“Boumelhem”).
[79] Boumelhem at paras.2 and 7 per Buchanan J.
[80] Boumelhem at para.9 per Buchanan J.
[81] Boumelhem at para.12 per Buchanan J.
In Carantinos v Magafas[82] an order was sought from the Federal Court restraining a creditor from taking steps in this Court to obtain a sequestration order in circumstances where a creditor’s petition had earlier been presented in this Court.[83] In Carantinos the Federal Court said:
8. It is plain for the reasons given above that the proceeding that Mr Carantinos has purportedly instituted in this Court is in respect of a matter in which the Federal Magistrates Court has jurisdiction. The proceeding in the Federal Magistrates Court in which Mr Carantinos wishes the respondent to be restrained by order of this Court from taking further steps is a proceeding that was initiated in that court by the presentation of the respondent’s creditor’s petition. It is beyond argument, in my view, that that proceeding is in respect of an “associated matter” within the meaning of s 32AA(1)(b). Subject to the provisions of s 32AA(2), Mr Carantinos’s application to this Court is a proceeding that s 32AA(1) provides must not be instituted.
9. The question therefore arises of whether this proceeding should be transferred to the Federal Magistrates Court. The application is in the form of an application for an anti-suit injunction in respect of a proceeding in the Federal Magistrates Court. It would be inappropriate for such an application to be made in the Federal Magistrates Court. Moreover, all of the factors on which Mr Carantinos wished to rely before this Court on seeking the anti-suit injunction can be raised by him in the Federal Magistrates Court in opposing the making of the sequestration order sought by the creditor’s petition (s 52(2)(b) of the Bankruptcy Act). In these circumstances it seems to me to be inappropriate to transfer the proceeding to the Federal Magistrates Court. The application will therefore be dismissed.[84]
The application was dismissed, with indemnity costs awarded.[85]
[82] [2008] FCA 1107 (“Carantinos”).
[83] Carantinos at para.8 per Branson J.
[84] Carantinos at paras.8-9 per Branson J.
[85] Carantinos at para.11 per Branson J.
It is apparent from both Boumelhem and Carantinos that the Federal Court has interpreted the words “must not” in the phrase “proceedings must not be instituted” as imposing a statutory bar on the institution of other proceedings in the Federal Court where there are existing proceedings in the Federal Magistrates Court.
The interpretation adopted by the Federal Court of the words “must not” in s.32AA(1) of the FC Act accords with the natural meaning of that phrase. It is difficult to see why those words ought not be given similar meaning, and effect, in s.725 of the FW Act insofar as they purport to prohibit the making of an application of the type set out, where there has already been an application made of another of the types set out.
In Attorney-General for the State of Victoria (at the relation of Black) & Ors v The Commonwealth of Australia & Ors[86] the High Court of Australia was concerned with the validity of laws sought to be challenged by reference to s.116 of the Constitution, which provides that:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
[86] (1981) 146 CLR 559 (“Black”).
As was the case in Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth,[87] s.116 of the Constitution, particularly because of the words “shall not make”, was found in Black to be a section imposing an absolute prohibition on the Commonwealth Parliament legislating with respect to the matters which followed that phrase in s.116 of the Constitution.[88] How much stronger then is the effect of the “blunt instrument”[89] that is “must not make” in s.725 of the FW Act.
[87] (1943) 67 CLR 116 (“Jehovah’s Witnesses”).
[88] Black at 576-577 and 579-581 per Barwick CJ, 605 per Stephen J, 618 per Mason J and 621 per Murphy J; Jehovah’s Witnesses at 123 per Latham CJ and 156 per McTiernan J.
[89] Halwood Corporation at 445 per Tadgell JA.
In Ilardo v Rail Corporation of New South Wales (t/as RailCorp)[90] the Full Bench of FWA found that an application for unfair dismissal to FWA under s.729 of the FW Act was precluded where the applicant had previously made an application in relation to dismissal to the Transport Appeals Board under the Transport Appeals Board Act 1980 (NSW). The Full Bench of FWA found that:
Mr Ilardo’s previous appeal to the TAB was an application made under the Transport Appeals Board Act 1980 (NSW). It was an “application or complaint under another law” being an application or complaint made under a law of a State or Territory (s 732 of the Act). Applying the rule in s 725, Mr Ilardo is barred from making an application of a kind referred to in s 729 (an unfair dismissal application) as s 732 applies.[91]
[90] (2010) 197 IR 397; [2010] FWAFB 6473 (“Ilardo”).
[91] Ilardo IR at 402 per Hamberger SDP, Hamilton DP, Simpson C; FWAFB at para.23 per Hamberger SDP, Hamilton DP, Simpson C.
In Du v University of Ballarat[92] a Full Bench of FWA was dealing with an appeal in respect of an unfair dismissal remedy application made by a Dr Du against the University of Ballarat.[93] The University of Ballarat had objected to the application on jurisdictional grounds asserting that it offended Subdivision B of Division 3 of Part 6 Item 1 of the FW Act.[94] The Full Bench of FWA observed that:
That subdivision precludes multiple applications in respect of termination of employment except in certain circumstances.[95]
[92] [2011] FWAFB 5225 (“Du”).
[93] Du at para.1 per Acton SDP, Hamilton DP and McKenna C.
[94] Du at para.2 per Acton SDP, Hamilton DP and McKenna C.
[95] Du at para.2 per Acton SDP, Hamilton DP and McKenna C.
Dr Du had made a complaint to the Victorian Equal Opportunity and Human Rights Commission[96] alleging race discrimination by the University of Ballarat.[97] The application for an unfair dismissal remedy by Dr Du was made under s.394 of the FW Act.[98] The Full Bench of FWA held that Dr Du’s complaint to the VEOHRC constituted a complaint covered by s.732 of the FW Act, because the complaint alleged that he had had to resign from his employment with the University of Ballarat due to race discrimination by representatives of that university, which complaint was not withdrawn by Dr Du or did not fail for want of jurisdiction.[99] The complaint made by Dr Du to VEOHRC alleging race discrimination covered a period from February 2009 until his eventual resignation at the end of August 2009.[100]
[96] “VEOHRC”.
[97] Du at para.7 per Acton SDP, Hamilton DP and McKenna C.
[98] Du at para.15 per Acton SDP, Hamilton DP and McKenna C.
[99] Du at para.16 per Acton SDP, Hamilton DP and McKenna C.
[100] Du at para.7 per Acton SDP, Hamilton DP and McKenna C.
The Full Bench of FWA, having considered ss.725 and 732 of the FW Act, and the FW Bill Explanatory Memorandum, concluded that:
24. Accordingly, we consider Dr Du was precluded by the operation of the provisions of Subdivision B of Division 3 of Part 6-1 of the FW Act from making his unfair dismissal remedy application under s 394 of the FW Act on 23 December 2010. This is because he made a complaint to the VEOHRC on 3 June 2009 which, for the reasons we have already given, was a complaint within the meaning of s 732 of the FW Act which has not been withdrawn by him or failed for want of jurisdiction.
25 Dr Du's s 394 application in matter U2010/15460 is therefore dismissed.[101]
[101] Du at paras.24-25 per Acton SDP, Hamilton DP and McKenna C.
Section 725 of the FW Act imposes a personal prohibition[102] on a person making a second application or complaint of a kind to which one of ss.726-732 of the FW Act apply when there has already been made an application or complaint of a kind to which one other of ss.726 and 732 of the FW Act apply. 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;[103] and
c)is confirmed by relevant case law.
[102] Halwood Corporation at 446 per Tadgell JA.
[103] See paras.30 and 36 above.
A dismissed person may therefore make:
a)a general protections court application; or
b)an application under a State or Territory anti-discrimination or equal opportunity law “in relation to” their dismissal,
but not both.
Therefore, s.725 of the FW Act acts as a personal prohibition on Ms Birch making a second complaint of a kind to which s.732 of the FW Act applies, that is, from making the EO Complaint, provided that the EO Complaint is a matter “in relation to” Ms Birch’s dismissal. It is to that issue the Court now turns.
In relation to
Ms Birch submitted that s.725 of the FW Act did not apply because the EO Complaint is not a matter “in relation to” Ms Birch’s dismissal. Ms Birch argued that this is so because the allegations in the EO Complaint spanned the term of Ms Birch’s employment by Wesco Electrics, and did not relate exclusively, or even predominantly, to Ms Birch’s eventual dismissal.
That raises the question as to what is meant by the phrase “in relation to the dismissal” in s.725 of the FW Act, it being the second application or complaint that must be “in relation to the dismissal”. In this case, the Court has already determined that the EO Complaint was the last made application or complaint, and an application or complaint of a kind referred to in s.732 of the FW Act. The question now becomes whether the EO Complaint is “in relation to” Ms Birch’s dismissal.
In Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia[104] the majority in the High Court of Australia found that a purchaser of foreign currency obtained rights that attached to, or were constituted by, the ability to use the currency, without which, property in the currency was worthless. Therefore, the supply of foreign currency (on the departure side of the customs barrier at Sydney Airport) was a supply “in relation to” the rights that attended upon ownership of that currency, and where it was evident that the currency was to be used overseas, the supply was therefore free from the imposition of the goods and services tax.[105]
[104] (2010) 241 CLR 510; [2010] HCA 33 (“Travelex”).
[105] Travelex CLR at 518-522 per French CJ and Hayne J; HCA at paras.21-38 per French CJ and Hayne J; CLR at 524-526 per Heydon J; HCA at paras.46-57 per Heydon J.
The principal majority judgment in Travelex observed that:
It may readily be accepted that "in relation to" is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that "the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights.[106]
and further that:
What the Act requires is that there be a supply "in relation to" rights; the operation of the Act does not call for attention to be given to the particular content of the rights.[107]
[106] Travelex CLR at 519-520 per French CJ and Hayne J; HCA at para.25 per French CJ and Hayne J.
[107] Travelex CLR at 521 per French CJ and Hayne J; HCA at para.32 per French CJ and Hayne J.
In O’Grady v Northern Queensland Co Ltd[108] it was said that:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the … Act …. What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion – something in the nature of a relevant relationship – is necessary ….[109]
[108] (1990) 169 CLR 356 (“O’Grady”).
[109] O’Grady at 367 per Dawson J.
In O’Grady the phrase “in relation to” was said to be one which “subject to any contrary indication derived from its context or drafting history, … requires no more than a relationship, whether direct or indirect, between two subject matters”.[110] It has also been said to be a phrase of wide and general import, not to be read down in the absence of some compelling reason to do so.[111]
[110] O’Grady at 376 per McHugh J.
[111] Fountain & Anor v Alexander& Anor (1982) 150 CLR 615 at 629 per Mason J; see also Huntley Management Ltd & Anor v Timbercorp Securities Ltd & Ors (2010) 187 FCR 151 at 163 per Rares J; [2010] FCA 576 at para.47 per Rares J.
In HP MercantilePty Ltd v Commissioner of Taxation[112] the Full Court of the Federal Court of Australia observed that:
It was common ground that the words “relates to” are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found.[113]
[112] (2005) 143 FCR 553; [2005] FCAFC 126 (“HP Mercantile”).
[113] HP Mercantile FCR at 563 per Hill J; FCAFC at para.35 per Hill J (with whom Stone and Allsop JJ agreed).
In Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission[114] the Full Court of the Federal Court held that in determining whether a matter was “in relation to” another matter, “the question is whether there is a relevant, sufficient or material connection or relationship, rather than merely a causal connection or relationship.”[115] In Australian Communications Network the Full Court of the Federal Court said that the approach set out above in O’Grady emphasised “the need for attention to the legislative context and purpose” and was “an example of the primacy of context”.[116] In context, one of the matters to be considered here is what mischief s.725 of the FW Act was intended to remedy.
[114] (2005) 224 ALR 344; [2005] FCAFC 221 (“Australian Communications Network”).
[115] Australian Communications Network ALR at 351 per Heerey, Merkel and Siopis JJ; FCAFC at para.29 per Heerey, Merkel and Siopis JJ, following an earlier judgment of the Full Court of the Federal Court in J & G Knowles & Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402 at 408 and 410 per Heerey, Merkel and Finkelstein JJ; [2000] FCA 196 at paras.22-23 and 26 per Heerey, Merkel and Finkelstein JJ.
[116] Australian Communications Network ALR at 350 per Heerey, Merkel and Siopis JJ; FCAFC at para.26 per Heerey, Merkel and Siopis JJ.
That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression.[117] The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the Court.[118] Context is also important to a consideration of whether the relationship need be:
a)direct or substantial;
b)indirect or less than substantial;
c)affecting one term of the relationship; or
d)affecting all of the terms of the relationship.[119]
[117] See, for example, Woodside Energy Ltd v Commissioner of Taxation (2006) 155 FCR 357 at 374-375 per French J; [2006] FCA 1303 at para.57 per French J (“Woodside Energy”); Australian Securities and Investments Commission v Citrofresh International Ltd & Anor (2007) 164 FCR 333 at 347 per Goldberg J; [2007] FCA 1873 at para.66 per Goldberg J (“Citrofresh”).
[118] Citrofresh FCR at 347 and 349 per Goldberg J; FCA at paras.67 and 71 per Goldberg J.
[119] Tooheys Ltd & Ors v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 614 per Dixon CJ and 620-621 per Taylor J (“Tooheys”); Joye v Beach Petroleum NL & Anor (1996) 67 FCR 275 at 285 per Beaumont and Lehane JJ.
In Tooheys the “vital question” was said to be “whether the instrument “relates” and not whether it may be “related” by an examination of extraneous circumstances.”[120]
[120] Tooheys at 622 per Taylor J.
The phrase “in relation to” does not extend to tenuous or remote relationships.[121] Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”.[122]
[121] Citrofresh FCR at 347 per Goldberg J; FCA at para.66 per Goldberg J; Woodside Energy FCR at 374 per French J; FCA at para.57 per French J.
[122] Woodside Energy FCR at 375 per French J; FCA at para.58 per French J.
The statutory purpose for which s.725 of the FW Act was enacted was to prevent an applicant, having filed an application or complaint of one type in relation to their dismissal, from filing an application or complaint of another type in relation to their dismissal. Applied to the present context, it is to prevent an applicant having filed a general protections court application in relation to their dismissal in this Court, from lodging an equal opportunity complaint in relation to their dismissal under a State equal opportunity law. The statutory purpose, put simply, is to limit an applicant to a single remedy.[123]
[123] See the extracts from the FW Bill Explanatory Memorandum at paras.30 and 36 above.
The question, in this matter, is whether the EO Complaint is “in relation to” the dismissal which is the subject of the Application?
The Application alleges adverse action by Wesco Electrics against Ms Birch as an employee, “because of” her “age and sex”, and alleges “[in] particular” that Ms Birch “was dismissed because she refused to drink alcohol and socialise with the respondent’s director Michael Mannion and his friends, and that she would not have been dismissed for that reason if not for the fact that she was young and female.”[124]
[124] Claim Form set out at para.5 above.
The EO Complaint alleges age and sex discrimination, and sexual harassment, on the bases (amongst others) that:
1.5 [Wesco Electrics insisted] that the Applicant drink alcohol and socialise with Mike Mannion and his friends;
and that:
2. In relation to point 1.5 above, the Applicant says that the Respondent discriminated against her by terminating her employment on the first occasion that she refused to drink alcohol and socialise with Mr Mannion and his friends.
The allegations made by Ms Birch in relation to her dismissal are expressed in almost identical terms in the Application and the EO Complaint.
Asked to attach documents that may help the EO Commissioner with the required investigation under the EO Act Ms Birch attached her letter of termination of employment. Asked “how has this affected you?” Ms Birch’s response was as follows:
I was subjected to mental anguish, embarrassment and humiliation during [sic] my employment. My employment was then wrongfully terminated due to my failure to tolerate and accept the discrimination.
The content of the EO Complaint and the Application make manifest the direct link between them. They both relate to, and seek to have, on the one hand, the EO Commissioner, and on the other, this Court, deal with Ms Birch’s dismissal, and in both instances it is alleged, on essentially the same factual basis, discrimination on the basis of age and sex resulting in Ms Birch’s dismissal from her employment with Wesco Electrics. The EO Complaint also alleges discrimination arising from sexual harassment, and although sexual harassment is not a specified head of discrimination for the purposes of adverse action under s.351 of the FW Act, the Application clearly identifies alleged sexual harassment of Ms Birch, and sexual harassment can constitute sex discrimination where a statute proscribes sex discrimination but does not mention sexual harassment.[125] Therefore, there is a direct relationship between the Application and the EO Complaint. The directness of that relationship is, having regard to the statutory intent behind s.725 of the FW Act, more than sufficient to establish that the EO Complaint is “in relation to” the dismissal the subject of the Application.
[125] Aldridge v Booth (1988) 80 ALR 1 at 16-17 per Spender J, and cases there cited; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 274-276 per French J; Elliott v Nanda & Anor (2001) 111 FCR 240 at 281 per Moore J; [2001] FCA 418 at para.127 per Moore J.
There is further evidence that supports the conclusion reached by the Court above that the EO Complaint is “in relation to” the dismissal the subject of the Application. That is contained in Ms Birch’s Solicitors 18 July 2011 Letter which indicates that Ms Birch (or at least her solicitors) “considered … the sexual harassment elements of Ms Birch’s allegations also fell within the provisions of the … [EO Act] and that a complaint was appropriate pursuant to section 83 of the … [EO Act].”[126] Thus, allegations of sexual harassment related not only to the Application, but “also” to the EO Complaint, and, insofar as the Application is concerned are clearly intended to be part of the claim of adverse action on the basis of sex.
[126] See extract from Ms Birch’s Solicitors 18 July 2011 Letter at para.14 above.
The allegations referred to, that is those of sexual harassment in the EO Complaint, are also the allegations contained within the Application. As can be seen from the following table, each allegation of sexual harassment raised in the EO Complaint is also dealt with in Ms Birch’s 28 July 2011 Affidavit which has been filed in support of the Application.
EO Complaint – paragraph no.
Allegation – summary
Ms Birch’s 28 July 2011 Affidavit – paragraph no.
1.1
Being sent explicit pornographic material by email.
42-47
1.2
Allowing the sending of emails from email account with content such as “Meet me in the toilet I want to fuck”.
48-51
1.3.
Treating in a demeaning manner.
33
1.4
Being required to drive Mike Mannion and drink alcohol.
34, 39 and 40
1.5
Being required to drink alcohol and socialise with Mike Mannion and his friends.
36
1.6
Sending sexual text messages.
12
1.7
Being told at a restaurant to lower top so that cleavage could be seen.
37
1.8
Mike Mannion urinating in the undercover car park of the restaurant.
38
1.9
Being told to dress for work in a way that would show cleavage.
53
1.10
Mike Mannion placing his hand on her thigh and hugging her several times.
39
1.11
Mike Mannion calling her by the nickname “Mumbles” or “Mumblers” after she arrived to help clean the office after the March 2010 hailstorm wearing a pair of gym tights.
31
1.12
Mike Mannion referring to her by the name of “Rachael”, a previous employee.
32
1.13
Mike Mannion and his friend ridiculing her as they read through her job description.
55
1.14
Mike Mannion regularly making jibes about her weight.
56
1.15
Mike Mannion making frequent other references to her body, including telling her she should not be eating lunch, calling her fat, telling her that she should be slimmer, and teasing her about the size of her upper arms.
54
1.16
Being asked at a work lunch whether she liked to place her finger into her partner’s anus during sexual intercourse, and after she refused to answer, being called “Bridget with a dirty digit” for the remainder of the lunch.
41
It can thus be seen that not only is there a direct relationship between the EO Complaint and the Application in the manner otherwise described above, but also a direct relationship between the particulars of the allegations in support of the EO Complaint and the affidavit evidence in support of the Application. Such is the directness of the relationship that every particular of the EO Complaint is the subject of affidavit evidence in support of the Application. Thus, whilst it is true to say, as Ms Birch does in submissions, that the EO Complaint involves allegations spanning the terms of Ms Birch’s employment by Wesco Electrics, it is not true to say, as her submissions also do, that the EO Complaint does not relate exclusively, or even predominantly, to Ms Birch’s eventual dismissal. As the above analysis indicates, all of the matters the subject of the EO Complaint are relied upon as evidence in support of the Application, and therefore must, on Ms Birch’s own case, be evidence relevant to, and therefore in relation to, her dismissal, which is the subject of the Application. In any event, the use of the phrase “in relation to” does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship.[127]
[127] Woodside Energy FCR at 374 per French J; HCA at para.57 per French J; Citrofresh FCR at 347 per Goldberg J; FCA at para.66 per Goldberg J.
The relationship between the Application and the EO Complaint is far from tenuous or remote. Indeed, the relationship here is direct, both as to:
a)the general nature of the matters alleged, that is discrimination on the grounds of sex (including sexual harassment) and age; and
b)the supporting particulars and evidence to the EO Complaint and the Application.
The EO Complaint is therefore a matter “in relation to” Ms Birch’s dismissal. The EO Complaint is therefore a complaint of a kind referred to in s.725 of the FW Act, and, therefore, a complaint which Ms Birch is statutorily prohibited from making.
In the present context it is clear that s.725 of the FW Act was intended to have a wide operation so as to restrict a person in the position of Ms Birch to the selection of a single remedy. In this case, that single remedy is the Application.
Jurisdiction of the Court
Wesco Electrics Submissions
Wesco Electrics asserts that the Court is a federal court under the Constitution, having original jurisdiction vested in it by express provision of a law of the Federal Parliament,[128] and the capacity to bind the Crown in each of its capacities.[129]
[128] FM Act, s.10(1)(a).
[129] FM Act, s.6.
Wesco Electrics says that jurisdiction is conferred on this Court in relation to any civil matter arising under the FW Act,[130] and specifically in the Fair Work Division of this Court in relation to an application under the FW Act, or an application for an injunction,[131] or an application for a declaration, in relation to a matter arising under the FW Act.[132]
[130] FW Act, s.566.
[131] FM Act, s.15.
[132] FM Act, s.16.
Wesco Electrics notes that s.568 of the FW Act provides that nothing in the FW Act limits the powers of this Court under ss.14, 15 or 16 of the FM Act.
Wesco Electrics asserts that the capacity to make orders, and to make an injunction, includes the capacity to injunct proceedings before a State commission or tribunal, citing the judgment of the Federal Court of Australia in Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission (NSW).[133]
[133] (2007) 161 IR 330; [2007] FCA 407 (“Tristar”).
EO Commissioner’s submissions
The EO Commissioner submitted that:
a)the Court does not have the power to interfere with the functions of a State administrative or investigative agency when exercising its jurisdiction;
b)in Tristar neither party questioned the Federal Court’s power to grant injunctive relief against the New South Wales Industrial Relations Commission, and in any event:
i)those proceedings were before a superior court of record;
ii)the issue was not addressed by the Federal Court; and
iii)the judgment gives no indication of what this Court’s powers are in respect of State agencies when exercising jurisdiction vested in the Fair Work Division of this Court;
c)in any event, if there is a prohibition contained in s.725 of the FW Act it is on a person who has been dismissed, and does not impose a prohibition on a State anti-discrimination or equal opportunity agency to receive, accept, investigate, conciliate or refer complaints as required by State legislation;
d)Wesco Electrics has not sought, in the amended application in a case, a declaration that the EO Commission does not have jurisdiction to investigate Ms Birch’s complaint, and, further, to conciliate that complaint, but rather seek to restrain Ms Birch from proceeding with the EO Complaint, which reflects the EO Commissioner’s view that the powers available to the Court in respect of the current proceedings should be applied to Ms Birch, not to the EO Commissioner;
e)because s.84 of the EO Act provides that the Commissioner “shall investigate each complaint lodged with the [EO] Commissioner under s.83 [of the EO Act]”, the EO Commissioner was statutorily bound to proceed with the investigation, and did not have discretion to suspend or dismiss Ms Birch’s complaint based on Wesco Electrics’ objections to the EO Commissioner’s jurisdiction; and
f)the power to review the EO Commissioner’s decision to accept, dismiss or refer a complaint lies with the Supreme Court of Western Australia.[134]
[134] Citing James v Sayers (Trustee for Sayers Family Trust) & Ors (2006) 46 SR(WA) 241; [2006] WASAT 332 at para.46 per Eckert DP and Toohey SenMem (“James”).
Ms Birch’s submissions
Ms Birch submits that cases dealing with the restraint of a tribunal, commission or other administrative body by a court fall into two categories:
a)those where the court has exclusive jurisdiction;[135] or
b)where parallel proceedings potentially impact upon a person’s right not to incriminate themselves.[136]
[135] Citing Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission (NSW) (2007) 158 FCR 104; [2007] FCAFC 50 (“Tristar – Full Court”).
[136] Citing DAS v Victorian Human Rights and Equal Opportunity Commission (2009) 198 A Crim R 305; [2009] VSC 381 (“DAS”).
Ms Birch distinguishes Tristar – Full Court as in that matter it is said that the Workplace Relations Act 1996 (Cth) was clearly expressed as intended to cover the field of relations between a constitutional corporation, as employer, and individuals, as employees of that corporation, and because the Full Court of the Federal Court of Australia determined that the Federal Court had exclusive jurisdiction, which meant that the New South Wales Industrial Relations Commission did not have jurisdiction under the relevant State legislation to conduct the inquiry which it intended to conduct.
Ms Birch then argues that the EO Commissioner is charged with investigating alleged ongoing discrimination against Ms Birch on the basis of her age and sex in breach of the EO Act over the period of Ms Birch’s employment. That is to be contrasted, Ms Birch says, with the matter before this Court which relates solely to the dismissal of Ms Birch in January 2011 which is alleged to have been adverse action due to Ms Birch’s age and sex, and in relation to which evidence of acts or events prior to 28 January 2011 is provided as support for her case that the adverse action for that reason.
Ms Birch submits that there is no basis for any argument that this Court has exclusive jurisdiction in relation to discrimination claims, and that there is therefore no basis for an argument that this Court has jurisdiction to restrain the EO Commissioner, as a head of an administrative body created by State legislation, from proceeding with the EO Complaint.
It is said that whilst there is some subject matter overlap between the claim before the Court and the EO Complaint the matters to be investigated by the EO Commissioner are predominantly prior to and not directly related to Ms Birch’s dismissal.
Finally, Ms Birch says that in the cases involving restraint of a State tribunal, commission or other administrative body, those restraints arose from discrete applications against the relevant State body. Therefore, this case can be distinguished, Ms Birch asserts, because it is a civil matter between private parties.
In relation to the second category of cases, that is the self-incrimination cases, Ms Birch asserts that they are inapplicable in the circumstances of this case because the EO Commissioner acts administratively and does not make determinations on issues of fact or law, nor make binding orders in relation to the parties’ rights, and therefore Wesco Electrics would not suffer prejudice on the basis of self-incrimination through the continuation of the proceedings before the EO Commissioner. Further, the decision in DAS is pointed to as authority for the proposition that the mere fact that proceedings are pending in a court does not mean that any parallel or related inquiry, conducted for proper purposes, itself constitutes an interference with the due administration of justice even where the Court is hearing matters based on the subject matter of the administrative inquiries.[137]
[137] Citing DAS at A Crim R at 323 per Warren CJ; VSC at para.65 per Warren CJ.
Legislation
Sections 566 to 568 of the FW Act are relevant to the disposition of this issue. They provide as follows:
Section 566
Jurisdiction is conferred on the Federal Magistrates Court in relation to any civil matter arising under this Act.
Section 567
Jurisdiction conferred on the Federal Magistrates Court under section 566 is to be exercised in the Fair Work Division of the Federal Magistrates Court if:
(a) an application is made to the Federal Magistrates Court under this Act; or
(b) an injunction is sought under section 15 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or
(c) a declaration is sought under section 16 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or
(d) proceedings in relation to a matter arising under this Act are transferred to the Federal Magistrates Court from the Federal Court; or
(e) the High Court remits a matter arising under this Act to the Federal Magistrates Court.
Section 568
To avoid doubt, nothing in this Act limits the Federal Magistrates Court's powers under section 14, 15 or 16 of the Federal Magistrates Act 1999.
Sections 14, 15 and 16 of the FM Act provide as follows:
Section 14
In every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Magistrates Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
Section 15
The Federal Magistrates Court has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Magistrates Court thinks appropriate.
Section 16
(1) The Federal Magistrates Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.
Consideration
The Application is a civil matter arising under the FW Act.[138] The question of whether the EO Complaint is a complaint of a kind which must not be made is also a civil matter arising under the FW Act.[139] The jurisdiction conferred on this Court under the FW Act is to be exercised if an application is made to it, or an injunction is sought from it.[140] The powers of the Court, relevantly under ss.14 and 15 of the FM Act, but also under s.16 of the FM Act, are not limited by the provisions of the FW Act.[141]
[138] FW Act, ss.351 and 539.
[139] FW Act, ss.725 and 732.
[140] FW Act, s.567(a)(b), FM Act, ss.14 and 15.
[141] FW Act, s.568.
Ms Birch submits that this Court does not have exclusive jurisdiction to deal with this type of matter, it being a matter involving elements of discrimination which might equally be brought before a State equal opportunity or anti-discrimination tribunal or body. Whilst that is true, it ignores the effect of s.725 of the FW Act, so that, in the current circumstances, there is a prohibition on the making of the EO Complaint, and therefore the only application or complaint in relation to the subject matter of Ms Birch’s dismissal which is validly made is the Application which is before this Court.[142] Effectively, therefore, in relation to the Application this Court does have exclusive jurisdiction because the making of the EO Complaint is statutorily prohibited.
[142] Equally, an application might have been made to the Federal Court, with which this Court has concurrent jurisdiction in relation to these matters with this Court: FW Act, ss.562 and 566, and in respect of which the same principles would apply.
The provisions of s.725 of the FW Act were obviously intended to cover the field with respect to applications and complaints of the type presently before the Court in terms of the Application and the EO Complaint, so that, where, as here, a general protections court application in relation to a dismissal is made to this Court, no other application in relation to that dismissal can be made to a State equal opportunity or anti-discrimination tribunal or body.[143]
[143] See paras.62 and 75 above; see also Tristar-Full Court FCR at 114 per Buchanan J; FCAFC at para.45 per Buchanan J.
There was no suggestion that the relevant provisions of the FW Act, and in particular s.725-732 and associated definitional provisions, were invalid.[144]
[144] And, in reality, nor could there have been having regard to the judgment in New South Wales & Ors v The Commonwealth of Australia (2006) 229 CLR 1; [2006] HCA 52.
The terms of s.725 of the FW Act make the prohibition on Ms Birch making the EO Complaint a matter of personal obligation, because a personal prohibition was intended.[145] Therefore, Ms Birch is personally liable to the injunctive relief sought by Wesco Electrics. To fail to issue an injunction, and thereby allow Ms Birch to proceed with the EO Complaint, would be to allow by omission what the Commonwealth Parliament has expressly prohibited by statute. That is a course of action that the Court cannot countenance. It is appropriate to grant an injunction in aid of the statutory prohibition, having regard to the nature, terms and scope of the relevant provisions of the FW Act, the mischief those provisions are intended to remedy, which confer on Wesco Electrics a right not to be troubled by duplex applications in relation to Ms Birch’s dismissal.[146]
[145] Halwood Corporation at 446 per Tadgell JA.
[146] Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 450 per Kitto J; King v Gousettis (1986) 5 NSWLR 89.
It is unnecessary to deal at length with the submission made concerning whether Wesco Electrics would suffer prejudice on the basis of self-incrimination through the continuation of the conciliation proceedings before the EO Commissioner. It is true to submit, as Ms Birch did, that there is no prejudice to Wesco Electrics by reason of self-incrimination if the EO Complaint were to proceed,[147] that submission ignores the prejudice arising from the fact that Wesco Electrics would have to take part in an investigative process and conciliation proceedings which ought not be being conducted because the making of the EO Complaint leading to that investigative process and conciliation proceedings is statutorily prohibited.[148] In those circumstances, the injunction is also necessary to protect the integrity of the processes of this Court from being abused.[149] The Court also observes that:
a)the balance of convenience must weigh heavily, if not inexorably, in favour of an injunction in aid of a statutory prohibition; and
b)there are serious issues to be tried in the substantive proceedings.
[147] EO Act, s.164, save that information may be admissible on the offence of providing false or misleading information to the Commissioner: EO Act, s.159.
[148] And thus the judgment in DAS is of limited assistance, and is distinguishable, because of the nature of the statutory prohibition under s.725 of the FW Act.
[149] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391-392 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
There will therefore be an injunction issued against Ms Birch, to permanently restrain her from proceeding with, or taking any further action steps in, or in relation to, the EO Complaint.
The Court notes that no declaration as to the validity of the EO Complaint has presently been sought. Because of the personal nature of the intended prohibition under s.725 of the FW Act, such a declaration might be made in the present proceedings because the question of whether the EO Complaint is a complaint of a kind which must not be made is a civil matter arising under the FW Act. There seems little doubt however that the EO Complaint is invalid because of the statutory prohibition. However, in the absence of any application by Wesco Electrics, it is not appropriate for the Court to consider further whether it can make a declaration as to the validity of the EO Complaint.
The EO Commissioner submitted that the Court did not have the capacity to grant relief interfering with the functions of a State administrative decision-maker or investigative body exercising jurisdiction under a state statute.
Ordinarily, where there are concurrent federal and state proceedings it is open to a federal court, in the exercise of its discretion, to:
a)stay its own proceedings;
b)enjoin the continuation of the state proceedings; or
c)transfer its proceedings to a state court under s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).[150]
[150] “Cross-Vesting Act”.
The Court notes that the EO Commissioner dealing with the EO Complaint is not a court,[151] and that the process for dealing with the EO Complaint before the EO Commissioner is not judicial.[152] A federal court faced with a choice of having to determine the appropriate course of action would generally take as its starting point whether an aspect of the whole controversy is exclusively within the jurisdiction of the federal court or the state court.[153] The choice to be made is dependent upon an evaluation of all the circumstances.[154]
[151] See para.129 below.
[152] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
[153] Westpac Banking Corporation v Eltran Pty Ltd (1987) 14 FCR 541 at 548 per Fox and Burchett JJ (“Eltran”).
[154] Eltran at 548 per Fox and Burchett JJ.
In this case it is inappropriate for this Court to stay its own proceedings, because it is those proceedings which were first invoked by Ms Birch and which gave rise to this Court’s jurisdiction to deal with the Application, and which, as a direct consequence, statutorily prohibit the making of the EO Complaint. It would be inappropriate for this Court to stay the Application which is within the Court’s jurisdiction, and which the FW Act requires the Court to determine, in circumstances where the EO Complaint is statutorily prohibited.
The Court has no jurisdiction to transfer proceedings direct to a state court under the Cross-Vesting Act,[155] and, in any event, the EO Commissioner is not a state court,[156] so the issue does not arise.
[155] Yao v Chang & Anor [2007] FMCA 1340 at paras.16-17 per Wilson FM; CBFC Limited v Skea [2004] FMCA 377 at para.4 per McInnis FM.
[156] See para.129 below.
In this case, the Court has jurisdiction in respect of civil matters arising under the FW Act, and both the Application and the question of whether the EO Complaint is a complaint of a kind which must not be made, are civil matters arising under the FW Act. In those circumstances this Court has power, under s.15 of the FM Act, to issue an injunction directed to a state administrative decision-maker or investigative body, such as the EO Commissioner, in respect of the civil matter within the jurisdiction of this Court.[157]
[157] Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (No 3) (1998) 195 CLR 1 at 29 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ (“Patrick Stevedores Operations No 2 Pty Ltd”).
In the present circumstances, to fail to issue an injunction, albeit one directed against Ms Birch, would be to allow the EO Commissioner to continue to investigate and conduct conciliation proceedings in relation to the EO Complaint, the making of which has been statutorily prohibited by the Commonwealth Parliament. As indicated above, that is a course of action that the Court cannot countenance.
The EO Commissioner also appears to assert that because this Court is not a superior court of record that it cannot grant injunctive relief against a state administrative decision-maker or investigative body. That submission requires a brief examination of the nature and powers of this Court and the Federal Court.
Both this Court and the Federal Court are:
a)courts of records;[158]
b)courts with such original jurisdiction as is vested in them by laws made by the Commonwealth Parliament;[159] and
c)courts of law and equity.[160]
[158] FM Act, s.8(3); FC Act, s.5(2).
[159] FM Act, s.10(1) and (2); FC Act, s.19.
[160] FM Act, s.8(3); FC Act, s.5(2).
Unlike the Federal Court, this Court is not expressly said to be a “superior” court of record. Nor would it appear that it was the Commonwealth Parliament’s intention that this Court be established as a superior court of record.[161]
[161] Skipworth v State of Western Australia & Ors (No 2) (2008) 218 FLR 16 at 27-28 per Lucev FM; [2008] FMCA 544 at paras.36-37 per Lucev FM. (“Skipworth (No 2)”)
As this Court observed in Skipworth (No 2) “the superior-inferior distinction may matter little at a federal level”[162] because:
a)“the declaration of a court as a “superior” court of record may not be intended to confer jurisdiction, but be merely titular”;[163]
b)“there may be a distinction between an “inferior” court at common law, and an “inferior” court in the Australian federal system, with the Federal Court and Family Court being inferior to the High Court, and this Court being inferior to each of those courts”;[164]
c)the powers of federal courts, established by statute, are always subject to the relevant statutory provisions, and it is to those statutory provisions that attention must be given to determine the powers of federal courts.[165]
[162] Skipworth (No. 2) FLR at 28 per Lucev FM; FMCA at para.38 per Lucev FM.
[163] Quick J and Groom L, The Judicial Power of the Commonwealth (1904) p 76; discussing“superior court of record” in s.4 of the Judiciary Act 1903 (Cth); Skipworth (No 2) FLR at 28 per Lucev FM; FMCA at para.38 per Lucev FM.
[164] Quick J and Garran RR, Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901), p 726; Constitution, s.71. See also the discussion in Zines L, Federal Jurisdiction in Australia (3rd ed, Federation Press, 2002), pp 106-115. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 at 41 O’Connor J spoke of the High Court being vested by s 71 of the Constitution with the “supreme judicial power of the Commonwealth, and it must necessarily include the power to keep inferior Courts of the federal judicial system from exceeding their jurisdiction”; Skipworth (No 2) FLR at 28 per Lucev FM; FMCA at para.38 per Lucev FM.
[165] VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR
When attention is given to the powers of this Court under the FW Act and the FM Act it can be seen that this Court has power to issue an injunction in relation to this matter as a civil matter within jurisdiction under the FW Act,[166] unaffected by the Court’s status as a non-superior court of record.
[166] FW Act, s.567(b); FM Act, s.15, and see para.102 above.
The EO Commissioner’s submissions also suggest that the EO Commissioner was statutorily bound to proceed with the investigation, and that only the Supreme Court of Western Australia has the power to review the EO Commissioner’s decision to accept, dismiss or refer a complaint. In this case, the facts indicate that the EO Commissioner did not give any consideration to the jurisdictional objection raised by Wesco Electrics in the NECA 4 August 2011 Letter. The failure to do so was contrary to the duty of any statutory body or person invested with jurisdiction to consider a jurisdictional objection properly made, which this objection clearly was.[167] The ability to actually make the EO Complaint, and therefore the valid existence of the EO Complaint, was a condition of the exercise by the EO Commissioner of the power to deal with the EO Complaint.[168] Had the EO Commissioner properly considered the jurisdictional objection, the EO Complaint may not have been further proceeded by the EO Commissioner on the basis that the EO Commissioner lacked jurisdiction. There is no evidence that the EO Commissioner sought any advice with respect to the jurisdictional objection. In any event, and accepting that a relevant power of judicial review resides in the Supreme Court of Western Australia:[169]
a)that does not preclude this Court exercising power given to it by the Commonwealth Parliament to issue injunctions with respect to civil matters within this Court’s jurisdiction under the FW Act; and
b)ignores the likelihood that the “mandatory” provisions of the EO Act requiring the EO Commissioner to consider a complaint lodged with the EO Commissioner[170] are invalid to the extent of any inconsistency with s.725 of the FW Act by reason of s.109 of the Constitution.
[167] As to duty of judicial and quasi-judicial bodies to inquire into the existence of jurisdiction, see R v Bolton [1835-42] All ER Rep 71 at 73-74 per Lord Denman CJ; Federated Engine-Drivers & Firemen’s Association v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415 per Griffith CJ, at 428 per Barton J and at 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 per Kirby J; Rentuza v Westside Auto Wholesale (2009) 236 FLR 231 at 237 per Lucev FM; [2009] FMCA 1022 at para.23 per Lucev FM. As to the necessity for the National Native Title Tribunal to inquire into the existence of jurisdiction, see Risk v Williamson & Ors (1998) 87 FCR 202 at 220-221 per O’Loughlin J. As to the necessity for industrial tribunals to inquire into the existence of jurisdiction, see Board of Fire Commissioners (NSW) v Threlfo (1960) AR (NSW) 349; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tomago Aluminium Co Pty Ltd & Ors [2006] AIRC 85 at para.56 per Marsh SDP, Ives DP and Whelan C; Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRComm 79 at paras.79-85 per Ritter AP.
[168] R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54 at 70 per Latham CJ.
[169] James at para.46 per Eckert DP and Toohey SenMem.
[170] EO Act, s.84.
The EO Commissioner also submits that if an injunction is to issue it ought to issue only against Ms Birch, and not against the EO Commissioner. In the Court’s view the issue of an injunction, and particularly an injunction with a permanent restraint, ought to be appropriately circumscribed, and if it is not necessary to issue an injunction against a person or party, such an injunction ought not to be issued. In the circumstances of this case where the Court has determined, for reasons set out above, to issue a permanent injunction directed to Ms Birch not to proceed with, or take any further steps with regard to, the EO Complaint, the Court does not consider it presently necessary to issue an injunction against the EO Commissioner. It ought to be sufficient that an injunction has been granted against Ms Birch. If it is not sufficient, and the EO Commissioner seeks to take further steps with respect to the EO Complaint, it is open to Wesco Electrics to make a further application to this Court, there being no other reason why an injunction ought not to issue against the EO Commissioner (subject to what is said below concerning the application to join the EO Commissioner as a party to the proceedings).[171]
[171] See paras.136-137 below.
Abuse of process and vexatious litigation
Wesco Electrics also sought that Ms Birch be barred from continuing with any proceeding other than the Application, because:
a)of r.13.11 of the FMC Rules; or
b)because there was an abuse of process in relation to the filing of the EO Complaint.
Rule 13.11 of the FMC Rules relevantly provides as follows:
(1) If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a) that any proceeding instituted by the person may not be continued without leave of the Court; and
(b) that the person may not institute a proceeding without leave of the Court.
There is before this Court only one application, namely the Application, and that cannot be described as vexatious as it is a legitimate general protections court application. There is no other application to this Court which would then trigger the application of r.13.11 of the FMC Rules on the basis that there has been instituted other vexatious proceedings in this Court.
The question then arises is whether or not there have been other vexatious proceedings instituted in “any other Australian court” by Ms Birch. For relevant purposes “Australian court” is defined in s.5 of the FM Act to mean “a federal court or a court of a State of Territory.”
The other two “applications” in issue in this matter – the FWA Application and the EO Complaint - have been made to FWA and the EO Commissioner. The FWA is not, unlike the Federal Court and this Court, specifically established as a federal court.[172] FWA does not exercise the judicial power of the Commonwealth, but rather industrial relations and dispute resolution functions invested in it by statute.[173] FWA is the latest in a line of bodies performing non-judicial industrial relations and dispute resolution functions in the Commonwealth sphere following the splitting of the judicial and arbitral functions in relation to federal industrial relations matters after the delivery of the opinion of the Privy Council in Attorney-General v The Queen in which it was held that the Commonwealth Parliament could not invest in one body judicial and non-judicial power.[174] As a consequence of the opinion of the Privy Council in Boilermakers the Commonwealth Parliament created the Commonwealth Industrial Court in 1956 to deal with the judicial aspects of industrial relations matters, whilst the arbitral and conciliation aspects of industrial relations matters were dealt with by the Commonwealth Conciliation and Arbitration Commission. The bifurcation of judicial and arbitral powers has been maintained ever since.[175] The FWA is not therefore an “Australian court”.
[172] FC Act, s.5(1); FM Act, s.8(1).
[173] FW Act, ss.576 and 577.
[174] (1957) 95 CLR 529 (“Boilermakers”).
[175] For a brief outline of the history see Welsh v Allblend Holdings Pty Ltd (No 2) (2010) 195 IR 216 at 221-223 per Lucev FM; [2010] FMCA 377 at paras.10-18 per Lucev FM.
The EO Commissioner is a statutory office holder under the EO Act[176] exercising such powers, in this case, investigative and conciliatory, as are invested in the EO Commissioner by the Western Australian Parliament, including, for example, powers to:
a)investigate complaints;[177]
b)request information and documents;[178]
c)direct attendance at a compulsory conference;[179] and
d)to endeavour to resolve matters by conciliation.[180]
Those are powers typical of the powers of a statutory investigative or conciliatory decision-maker or body. The EO Commissioner does not exercise judicial power, and is not an “Australian court”.
[176] EO Act, s.75.
[177] EO Act, s.84.
[178] EO Act, s.86.
[179] EO Act, s.87.
[180] EO Act, s.91.
The conditions for the exercise of the power to make an order concerning a vexatious litigant under r.13.11(1) of the FMC Rules have therefore not been met in this case.
As to abuse of process generally there can be little doubt that it is an abuse of process to start a proceeding contrary to a statutory prohibition, or where statutory pre-requisites have not been complied with. Further, it is well established that it is prima facie abuse of process to agitate in separate fora the same factual matters, between the same parties, seeking the same or very similar relief.[181] In this case, the factual subject matter of the EO Complaint and the Application is the same,[182] the same parties are involved , and in both the EO Complaint and the Application Ms Birch seeks compensation for lost earnings and in relation to the effect of Wesco Electrics alleged actions.[183] Remarkably, there is evidence that the EO Complaint would not have been brought if the Application had been able to be resolved through negotiation between the parties.[184]
[181] Hu v Li-Chien Liu [2011] FMCA 21 at para.11 per Jarrett FM (and cases there cited); Thirteenth Corp Pty Ltd v State & Ors (2006) 232 ALR 491 at 502 per Jessup J; [2006] FCA 979 at para.36 per Jessup J
[182] See para.84 above.
[183] See para.4 above and EO Complaint, Attachment A.
[184] See Ms Birch’s Solicitors’ 18 July 2011 Letter at para.14 above.
The above matters give rise to an abuse of process which it is appropriate to restrain by injunction, given both the statutory prohibition and the replication of facts, parties and remedies sought.
Summary dismissal
In the alternative, Wesco Electrics seeks that the Application be summarily dismissed pursuant to r.13.10 of the FMC Rules. Rule 13.10 of the FMC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Because the Court has determined to grant an injunction for reasons set out above it is strictly unnecessary to consider the alternative order for summary dismissal sought by Wesco Electrics. It suffices, however, to observe that:
a)based on the test for summary dismissal in r.13.10 of the FMC Rules, that is whether the Application has no reasonable prospect of success, the Court is not satisfied, having regard to Ms Birch’s Affidavit, albeit untested, that the Application has no reasonable prospect of success as there are clearly serious legal and factual issues to be determined;
b)the Court does not consider the Application to be frivolous or vexatious, as it appears to be an application based on substantive facts relevant to the issue of age or sex discrimination giving rise to a general protections court application; and
c)the Application is not an abuse of the process of the Court, particularly in circumstances where the Court has determined that it is the making of the EO Complaint which is statutorily prohibited. The fact of the FWA Application, with respect to unfair dismissal, and which was subsequently withdrawn, does not make the Application an abuse of the process of the Court.
Therefore, there will not be an order dismissing the Application under r.13.10 of the FMC Rules.
Joining the EO Commissioner as a party
Wesco Electrics sought to join the EO Commissioner as a party on the basis that the EO Commissioner’s participation in the proceedings was necessary to achieve a complete resolution of the issues.[185] The resolution of the ultimate issues in dispute in these proceedings do not however involve the EO Commissioner, but only Ms Birch and Wesco Electrics, and in relation to disputed issues of fact there is no evidence that the EO Commissioner has any direct knowledge or involvement in the issues. Further, in circumstances where the Court has determined that it is only necessary, for present purposes, to issue an injunction against Ms Birch in relation to the EO Complaint, the EO Commissioner’s involvement is not otherwise required in relation to the proceedings.
[185] FMC Rules, r.11.01(1) and (2).
For the above reasons, there will be no order to join the EO Commissioner as a party to these proceedings.
Conclusions
For the reasons set out above, the Court has concluded that:
a)there will be an injunction issued against Ms Birch, to permanently restrain her from proceeding with, or taking any further steps with respect to, the EO Complaint; and
b)otherwise, the amended application in a case will be dismissed, save as to costs.
The Court will hear the parties and the EO Commissioner as to:
a)costs, if any;[186] and
b)further directions.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 9 January 2012
[186] FW Act, s.570; Mainrange Corporation (No. 2) IR at 355-356 per Lucev FM; FMCA at paras.18-24 per Lucev FM.
Corrections
In line 1 of paragraph 37, the word “conjunctive” has been deleted and the word “disjunctive” has been inserted.
[56] The Parliament of the Commonwealth of Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum, cl.2707 and 2708 (“FW Bill Explanatory Memorandum”).
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