Burke v Department of Agriculture, Fisheries and Forestry - [2012] FMCA 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE v DEPARTMENT OF AGRICULTURE, FISHERIES & FORESTRY

[2012] FMCA 424

INDUSTRIAL LAW – Application for summary dismissal – application without jurisdictional foundation – application dismissed.

Administrative Decisions (Judicial Review) Act 1977, item (a), Schedule 1
Fair Work Act 2009, ss.365, 369, 371(1), 371(2), Chapter 3 Part 3-1 Division 8
Federal Magistrates Court Act 1999, s.17A
Federal Magistrates Courts Rules 2001, r.13.10, Schedule 1

Burke v Department of Agriculture, Fisheries & Forestry – Australian
CBFC Limited v Corporate Consulting (Australia) Pty Ltd (In Liquidation) [2010] QSC 395
Dilena v Dowell's Traffic Management Pty Ltd [2012] FMCA 60
Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256
Quarantine and Inspection Service [2011] FWAFB 8480
Stack v Michael Hill Jeweller (Australia) Pty Ltd [2012] FMCA 259

Applicant:

DOMINIC BURKE

Respondent:

DEPARTMENT OF AGRICULTURE, FISHERIES & FORESTRY

File Number:

BRG 45 of 2012

Judgment of:

Jarrett FM

Hearing date:

15 March 2012

Date of Last Submission:

15 March 2012

Delivered at:

Brisbane

Delivered on:

25 May 2012

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Bennett

Solicitors for the Respondent:

Ashurst Australia

ORDERS

The application filed on 18 January, 2012 is dismissed pursuant to rule 13.10 of the Federal Magistrates Courts Rules 2001.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,444.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 45 of 2012

DOMINIC BURKE

Applicant

And

DEPARTMENT OF AGRICULTURE, FISHERIES & FORESTRY

Respondent

REASONS FOR JUDGMENT

The respondent applies to have Mr Burke’s principal application dismissed pursuant to s.17A of the Federal Magistrates Court Act 1999 and rule 13.10 of the Federal Magistrates Courts Rules 2001 on the basis that he has no reasonable prospect of successfully prosecuting his claim or alternatively, the claim is an abuse of process of the Court.
Mr Burke’s principal application filed on 18 January, 2012 is to:
“1. To have a decision made in regards to the decision by FWA to not allow me to pursue my illegal and unfair dismissal. I appeal this decision with the FMC in order to have my case heard by the FMC and request an appeal hearing.
2. Reinstatement and a written apology as there has never been grounds to dismiss me in the first instance after 8 years of permanent employment.
3. Compensation of approximately $150 000 for lost wages since August 2009 dismissal and refusal of DAFF to provide reports relating to my dismissal to myself through FOI as I was entitled to these over 2 years ago but have still not received them. At time of dismissal in August 2009 superannuation income was $61 000. Compensation for the stress, anxiety and depression cause by the mismanagement of AQUIS of $50 000”
Mr Burke’s application does not expressly identify the particular jurisdiction possessed by this Court which he is attempting to invoke. The respondent in its submissions, therefore, has approached Mr Burke’s application on the basis that it may be a general protections Court application under Chapter 3 Part 3-1 Division 8 of the Fair Work Act 2009, an appeal from a decision of Fair Work Australia or alternatively an application for judicial review of a decision of Fair Work Australia.
Short of all of the irrelevant assertions contained in his application and affidavit (both filed on 18 January, 2012) Mr Burke’s complaint appears to be:
a)He was employed by the respondent department for eight years;
b)He was dismissed from his employment in August, 2009;
c)Following his dismissal, he made an application under s.365 of the Fair Work Act 2009 to Fair Work Australia;
d)He did not file his application within the 60 day time limit prescribed for the filing of such applications and it was necessary for him to seek and secure an extension of time within which to commence his application, if it was to proceed;
e)Fair Work Australia (Commissioner Simpson) declined to exercise its discretion to extend the time for filing the application and Mr Burke could not pursue his claim;
f)He appealed that decision to a Full Bench of Fair Work Australia. The Full Bench delivered its decision on 8 December, 2011 (Burke v Department of Agriculture, Fisheries & Forestry – Australian Quarantine and Inspection Service [2011] FWAFB 8480). Mr Burke’s appeal was dismissed. The Full Bench saw no basis upon which to interfere with the decision of the single member.
Mr Burke’s affidavit filed with his application on 18 January, 2012 sets out his complaints about the decision of the Full Bench. He takes the view that the Full Bench did not properly consider and apply certain authorities (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256 and CBFC Limited v Corporate Consulting (Australia) Pty Ltd (In Liquidation) [2010] QSC 395). Mr Burke complains that the Full Bench did not properly consider the meaning of the phrase “exceptional circumstances” for the purposes of his application to extend time within which to commence his s.365 application.
Further, Mr Burke complains that the Commissioner who constituted Fair Work Australia for the purposes of his application to extend time did not disclose that (according to Mr Burke) he had a very close family relationship with Minister Joe Ludwig. Mr Burke’s affidavit contains a number of allegations none of which are substantiated and which are entirely speculative.
However, my view on those matters is irrelevant because irrespective of the truth of the allegations made by Mr Burke against the Fair Work Australia Commissioner and his failure to disclose his close family connection with the Minister, it has no bearing on the outcome of these proceedings. That is so because this Court is devoid of jurisdiction to hear the claim no matter how it is framed.
If Mr Burke’s application to this Court is properly viewed as a general protections Court application, it is fatally flawed because Mr Burke holds no certificate under s.369 of the Fair Work Act 2009. The issue of such a certificate by Fair Work Australia is a jurisdictional requirement necessary to be fulfilled before this Court stands possessed of jurisdiction to hear a general protections claim: s.371(1) of the Fair Work Act 2009; Dilena v Dowell's Traffic Management Pty Ltd [2012] FMCA 60; Stack v Michael Hill Jeweller (Australia) Pty Ltd [2012] FMCA 259. This is not an application in which Mr Burke claims an interim injunction and so s.371(2) of the Act (which might obviate the need for a s.369 certificate) is not engaged. To the extent that Mr Burke’s application might be viewed as a general protections Court application under Chapter 3 Part 3-1 Division 8 of the Fair Work Act 2009, it cannot succeed.
Alternatively, if Mr Burke’s application is viewed as an appeal from the decision of the Full Bench of Fair Work Australia, the application must fail. No appeal lies from a decision of Fair Work Australia (sitting as a Full Bench) to this Court.
To the extent that the application might be seen as an application for judicial review, it is clear that the provision of the Administrative Decisions (Judicial Review) Act 1977 does not apply (see item (a) of Schedule 1 to that Act). Decisions of Fair Work Australia are expressly excluded from coverage by that Act.
Moreover, to the extent that it might be seen as an application for the issue of a writ of certiorari, this Court has no power to issue such writs absent specific legislative authority to do so. It has no legislative authority to issue such writs in respect of decisions of the Full Bench of Fair Work Australia.

Conclusion

I am satisfied that Mr Burke’s application has no reasonable prospects of success. It ought to be summarily dismissed pursuant to s.17A of the Federal Magistrates Court Act 1999 and rule 13.10 of the Federal Magistrates Courts Rules 2001.
The respondent seeks its costs of the application. I am satisfied that costs should follow the event. I assess the respondent’s costs, according to schedule 1 of the Federal Magistrates Courts Rules 2001, as follows:
a)Stage 1  $2,350.00
b)Daily Hearing Fee (first court day)                   $240.00
c)Stage 2  $1,465.00
d)Daily Hearing Fee (summary application)       $880.00
e)Filing Fee  $509.00
Total  $5,444.00

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 25 May 2012