FEDERAL COURT OF AUSTRALIA
C v Commonwealth of Australia [2015] FCAFC 113
Citation: C v Commonwealth of Australia [2015] FCAFC 113 Parties: C v COMMONWEALTH OF AUSTRALIA File number: NSD 251 of 2015 Judges: TRACEY, BUCHANAN AND KATZMANN JJ Date of judgment: 21 August 2015 Catchwords: INDUSTRIAL LAW – adverse action – whether members of the Australian Defence Force “employees” within the meaning of the Fair Work Act 2009 (Cth) – consideration of the meaning of “ordinary meaning” of “employee”
PRACTICE AND PROCEDURE – application for summary judgment – whether applicant has no reasonable prospects of success – whether applicant has standing to commence or prosecute proceeding
Legislation: Constitution, ss 51 (xx), 51(xxix)
Defence (Personnel) Regulations 2002 (Cth), regs 8, 87(1), 87(2) 117, 572(1)
Defence Act 1903 (Cth)
Fair Work Act 2009 (Cth), ss 6, 9(5), 12, 13, 14, 30E(1), 30P, 335, 338, 342, 342(1), 351, 351(1), 351(3), 358, 545, 546, 570(1), 574, 596(4), 770, 772(1)(f), 776(1), 776(2), 768AB, 768AD, 776(3)(a), 778; Pts 3–1, 4–1, 5–1, 6–1, 6–3A
Federal Circuit Court of Australia Act 1999 (Cth), ss 17A, 39
Federal Circuit Court Rules 2001 (Cth), rr 8.02, 13.10(a)
Federal Court of Australia Act 1976 (Cth), ss 31A, 37AI, 37M
Federal Court Rules 2011 (Cth), rr 26.01(1)(a), 27.13(4)
Industrial Relations Act 1988 (Cth), ss 170, 170CA(1), 170CB, 170DE(1), 170DF(1)(f)
Police Service Act 1900Cases cited: China Navigation Company Limited v Attorney-General [1932] 2 KB 197 – cited
Commonwealth v Welsh (1947) 74 CLR 245 – cited
Coutts v Commonwealth of Australia (1985) 157 CLR 91 – citedDeyv Victorian Railway Commissioners (1949) 78 CLR 62 – cited
Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503 – cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 – cited
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 – cited
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 – cited
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 – cited
Kaye v Attorney-General (Tas) (1956) 94 CLR 193 – cited
Konrad v Victoria (1999) 91 FCR 95 – distinguished
Marks v The Commonwealth (1964) 111 CLR 549 – cited
Millar v Bornholt (2009) 177 FCR 67 – cited
Mitchell v The Queen [1896] 1 QB 121 – cited
New South Wales v Commonwealth (2006) 229 CLR 1 – cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – cited
Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 41 – cited
Spencer v The Commonwealth (2010) 241 CLR 118 – cited
White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 – citedDate of hearing: 6 August 2015 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Applicant: Dr C Birch SC and Ms P Lowson Solicitor for the Applicant: HIV/AIDS Legal Centre Counsel for the Respondent: Dr J Renwick…
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Details
- Case
- [2015] FCAFC 113
- Decision Date
CaseChat Overview and Summary
The case of C v Commonwealth of Australia involved a claim by a former member of the Royal Australian Air Force (RAAF) that the Commonwealth had contravened the Fair Work Act 2009 (Cth) (FW Act) by terminating his employment due to his HIV status. The applicant alleged that the termination constituted adverse action taken on the basis of a physical disability, which is prohibited under the FW Act. The Commonwealth argued that the applicant was not an "employee" within the meaning of the FW Act, and thus the provisions of the Act did not apply to him. The central issue for the Court was to determine whether enlisted members of the Australian Defence Force, such as the applicant, are considered "employees" under the FW Act. The Court found that they were not, and therefore, the provisions of the FW Act did not apply to the applicant's case.
The legal issues before the Court included whether the applicant had standing to bring the claim under the FW Act and whether the claim had any reasonable prospect of success. The Court examined the definition of "employee" under the FW Act and concluded that enlisted members of the Australian Defence Force are not employees within the ordinary meaning of the term, as they do not have employment contracts with the Commonwealth. The Court also considered the power of the Federal Circuit Court and the Federal Court to grant summary judgment if the applicant had no reasonable prospect of successfully prosecuting the proceeding. The Court determined that since the applicant did not have the necessary status or standing to commence or prosecute the proceeding, the application for relief could have no reasonable prospect of success.
The Court granted the Commonwealth's application for summary judgment, finding that the applicant's claim had no reasonable prospect of success as a matter of law. The Court emphasized that the statutory language should be applied as a whole, and expressions such as "untenable" or "groundless" should not be used as substitutes. The Court also noted that the parties should not be required to incur the costs of preparing for and conducting a lengthy trial. The Court rejected the applicant's proposed amendment to his application to bring proceedings under another part of the FW Act, finding it would not have changed the outcome. The Court's final order was to enter judgment for the respondent and make no order as to costs.
The legal issues before the Court included whether the applicant had standing to bring the claim under the FW Act and whether the claim had any reasonable prospect of success. The Court examined the definition of "employee" under the FW Act and concluded that enlisted members of the Australian Defence Force are not employees within the ordinary meaning of the term, as they do not have employment contracts with the Commonwealth. The Court also considered the power of the Federal Circuit Court and the Federal Court to grant summary judgment if the applicant had no reasonable prospect of successfully prosecuting the proceeding. The Court determined that since the applicant did not have the necessary status or standing to commence or prosecute the proceeding, the application for relief could have no reasonable prospect of success.
The Court granted the Commonwealth's application for summary judgment, finding that the applicant's claim had no reasonable prospect of success as a matter of law. The Court emphasized that the statutory language should be applied as a whole, and expressions such as "untenable" or "groundless" should not be used as substitutes. The Court also noted that the parties should not be required to incur the costs of preparing for and conducting a lengthy trial. The Court rejected the applicant's proposed amendment to his application to bring proceedings under another part of the FW Act, finding it would not have changed the outcome. The Court's final order was to enter judgment for the respondent and make no order as to costs.
Orders
Orders of the court
1. Judgment be entered for the respondent.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
At common law enlisted members of the Australian Defence Force are not employees. The central question which falls for determination on the present application is whether such members are, nonetheless, “employees” within the meaning of the Fair Work Act 2009 (Cth) (“the FW Act”). In the opinion of the Court they are not.THE FACTUAL BACKGROUND The applicant enlisted in the Royal Australian Air Force (“RAAF”) on 30 March 1999. On 23 September 2011 he was diagnosed HIV positive. On 3 October 2012, following a review of his circumstances by the Medical Employment Classification Review Board, he was issued with a termination notice pursuant to Reg 87(2) of the Defence (Personnel) Regulations 2002 (Cth) (“the Regulations”) on the ground that he was medically unfit for further service. On 19 November 2012 he signed an election notice accepting the decision to terminate his service on medical grounds and elected to be terminated with effect from 31 January 2014. He “separated” from the permanent RAAF on that day. Shortly afterwards the applicant commenced a proceeding in the Federal Circuit Court in which he claimed that the Commonwealth of Australia had contravened the FW Act by taking adverse action against him because of a physical disability.PROCEDURAL HISTORY Shortly after the application was filed the Commonwealth applied under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) and r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for summary dismissal on the ground that the applicant had no reasonable prospect of successfully prosecuting the proceeding. This was because, so it was contended, the relevant provisions of the FW Act did not apply to enlisted members of the Australian Defence Force. On 23 January 2015 the Commonwealth applied to the Federal Circuit Court for an order that the proceeding be transferred to this Court pursuant to s 39 of the FCCA Act and r 8.02 of the FCC Rules. The transfer application was granted on 2 February 2015. Once the proceeding was transferred, the Federal Court Rules 2011 (Cth) (“FCR”) applied to it as if it had been commenced in this Court: see FCR 27.13(4). On 27 April 2015 Katzmann J made an order under s 37AI of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) that the name of the applicant not be published and that thereafter he be referred to as “C”. On 29 April 2015 the Chief Justice directed that the Commonwealth’s application for summary dismissal should be determined by a Full Court.THE APPLICANT’S CLAIM C claimed that the Commonwealth had discriminated against him within the meaning of s 351 of the FW Act by taking adverse action against him. The adverse action was said to be that of an “employer against an employee” and by a “prospective employer against a prospective employee”. The claim relating to a “prospective” employer and employee arose because C asserted that the relevant decision had the additional effect of preventing his participation in the RAAF Reserve once his permanent employment had been terminated. He identified the relevant forms of adverse action by reference to Item 1(a), (b), (c) and (d) and Item 2(a) and (b) of s 342(1) of the FW Act.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It follows that C was not, at relevant times, an “employee” to whom ss 342 and 351 of the FW Act applied.SUMMARY JUDGMENT Both the Federal Circuit Court and this Court have power, under s 17A of the FCCA Act and s 31A of the FCA Act respectively, to give judgment for a respondent if the Court is satisfied that the applicant “has no reasonable prospect of successfully prosecuting the proceeding …”. Complementary powers are also to be found in the Rules of both courts: see r 13.10(a) of the FCC Rules and r 26.01(1)(a) of the FCR. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Gordon J noted (at 406) that s 31A was introduced in order to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”. Even so, the power is to be exercised cautiously: Spencer v The Commonwealth (2010) 241 CLR 118 at 141. As both sections expressly provide, an applicant may have “no reasonable prospect of successfully prosecuting [a] proceeding” even if the application cannot be characterised as either hopeless or bound to fail. These provisions, as Lindgren J held in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, were designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Deyv Victorian Railways Commissioners (1949) 78 CLR 62 at 91‑92 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30. In determining whether the claim has “no reasonable prospect” of success weight must be given to the expression as a whole and expressions such as “untenable” or “groundless”, whether or not used in conjunction with “intensifying epithets” such as “clearly” or “manifestly” should not be adopted as substitutes for the statutory language: Spencer at 141. The Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M of the FCA Act. In circumstances in which, as a matter of law, an applicant lacks the necessary status or standing to commence or prosecute a particular proceeding that person’s application for relief can have no reasonable prospect of success. That is the position here. The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial. The Commonwealth’s summary judgment application should be granted.THE APPLICATION TO AMEND The applicant abandoned his foreshadowed application for leave to amend his application so that he could commence proceedings under Pt 6–4 of the FW Act. He was correct to do so. As already noted, s 772(1)(f), which appears in that Part, proscribes the termination of an employee’s employment by reason of the physical disability of the employee. Unlike Pt 3–1 , Pt 6–4 relies for its efficacy on the external affairs power in seeking to give effect to provisions of International Labour Organisation Conventions to which Australia is a signatory.
Ratio Decidendi
Legal Principle Established
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