DILENA v DOWELL'S TRAFFIC MANAGEMENT PTY LTD - [2012] FMCA 60

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DILENA v DOWELL'S TRAFFIC MANAGEMENT PTY LTD

[2012] FMCA 60

INDUSTRIAL LAW – Application to summarily dismiss claim – application to Fair Work Australia not made within 60 days of effect of dismissal – whether s.369 certificate invalid – certificate invalid – Court’s jurisdiction not engaged because s.369 certificate invalid.

Fair Work Act 2009, ss.340, 346 , 351(1), 352, 365, 366, 366(2), 367, 368, 369, 371, 576, 595, 595(1), 725
Federal Court of Australia Act 1976, s.31A
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001, r.13.10(a)

CEPU v Active Tree Services Pty Ltd [2011] FMCA 535
George v Fletcher (Trustee) [2010] FCAFC 53
Minister of Immigration and Ethnic Affairs v Sabri Polat (1995) 37 ALD 394
Rutherford v Hausner [2011] FMCA 1033
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant:

SHANE DILENA

Respondent:

DOWELL'S TRAFFIC MANAGEMENT PTY LTD

File Number:

BRG 887 of 2011

Judgment of:

Jarrett FM

Hearing date:

27 January, 2012

Date of Last Submission:

27 January, 2012

Delivered at:

Brisbane

Delivered on:

3 February, 2012

REPRESENTATION

Advocate for the Applicant:

Mr Crank

Advocates for the Applicant:

Construction Forestry Mining and Energy Union

Solicitor for the Respondent:

Ms Donaghy

Solicitors for the Respondent:

Minter Ellison

ORDERS

The application filed on 7 October, 2011 and amended on 12 December, 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 887 of 2011

SHANE DILENA

Applicant

And

DOWELL’S TRAFFIC MANAGEMENT PTY LTD

Respondent

REASONS FOR JUDGMENT

By an application in a case filed on 9 January, 2012 the respondent seeks orders that the amended claim filed by the applicant on 12 December, 2011 be summarily dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the grounds that the applicant has no reasonable prospect of successfully prosecuting the claim. Alternatively, the respondent seeks an order that certain paragraphs or parts of paragraphs of the applicant’s amended claim be struck out.
The application raises the issues that concern the efficacy to be given to a certificate issued by Fair Work Australia pursuant to s.369 of the Fair Work Act 2009, namely whether the certificate issued in this case has any effect given:
a)The application in respect of which it was issued was commenced outside of the time limit specified for the commencement of such applications; or
b)The application in respect of which it was issued was commenced in contravention of s.725 of the Act because at the time that application was made, Mr Dilena had a pending application for unfair dismissal before Fair Work Australia.
This application was heard before me on 27 January, 2012. At the hearing, I dealt with another ground upon which Dowell’s argued that the amended application should be summarily dismissed. I determined that the proceedings should not be summarily dismissed on the ground that Mr Dilena had no reasonable prospect of successfully prosecuting his claim because he could not prove that he had been dismissed by Dowell’s. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 60
Decision Date: 3 February, 2012

CaseChat Overview and Summary

This matter concerns a dispute between DILENA and Dowell's Traffic Management Pty Ltd, which was heard by the Federal Magistrates Court. The applicant, DILENA, sought summary judgment against Dowell's Traffic Management Pty Ltd on certain claims. The court was tasked with determining whether the applicant had no reasonable prospect of successfully prosecuting the proceeding. The case hinges on the interpretation and application of s.17A of the Federal Magistrates Act 1999, which allows the Court to grant summary judgment if it is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding.

The court's reasoning focused on the meaning of "no reasonable prospect" as outlined in s.17A of the Federal Magistrates Act 1999. The court referenced previous cases, such as Spencer v Commonwealth of Australia, to emphasise that the legislative purpose of the provision should not be confined to cases that fall within earlier procedural regimes. The court held that the phrase "no reasonable prospect" should be interpreted through a succession of decided cases, similar to other statutory phrases like "just and equitable". The court concluded that the applicant did not have more than a fanciful prospect of success, and thus the application for summary judgment was dismissed.

The Federal Magistrates Court dismissed the application filed by DILENA on 7 October 2011 and amended on 12 December 2011. The court found that the applicant did not have a reasonable prospect of success on the claims against Dowell's Traffic Management Pty Ltd, and therefore, the application for summary judgment was not granted. The court's decision was based on the interpretation of s.17A of the Federal Magistrates Act 1999, which requires a practical judgment as to whether the applicant has more than a fanciful prospect of success.

Orders

Orders of the court

The application filed on 7 October, 2011 and amended on 12 December, 2011 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I observe that the above rule follows s.17A of the Federal Magistrates Act1999 which is in the same terms as s.31A of the Federal Court of Australia Act1976. That rule and those sections provide for the Court to give summary judgment in an appropriate case. Relevantly, s.17A of the Federal Magistrates Act 1999 is set out in the following terms:Summary judgment …(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. The approach taken in cases dealing with s.31A of the Federal Court Act 1976 are generally seen as apposite in cases dealing with s.17A of the Federal Magistrates Act1999: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] and [105]. The words of s.31A mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealth of Australia (2010) 241 CLR 118, per Hayne, Crennan, Kiefel and Bell JJ at [58] – [59]. The Court must embark upon a “practical judgment…as to whether the applicant has more than a ‘fanciful’ prospect of success”: per French CJ and Gummow J at [25]. What is required by the section is set out by Hayne, Crennan, Kiefel and Bell JJ as follows at [60]:… The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. The functions of Fair Work Australia are set out in s.576 of the Act. Relevantly, that section provides:576 Functions of FWA (1) FWA has the functions conferred by this Act in relation to the following subject matters:…(h) general protections (Part 3-1);…(2) FWA also has the following functions:(a) dealing with disputes as referred to in section 595;… Section 595 of the Act is in the following terms:595 FWA’s power to deal with disputes (1) FWA may deal with a dispute only if FWA is expressly authorised to do so under or in accordance with another provision of this Act. (2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways: (a) by mediation or conciliation; (b) by making a recommendation or expressing an opinion. (3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expressly authorised to do so under or in accordance with another provision of this Act. Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)). (4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision. Example: FWA could direct a person to attend a conference under section 592. (5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.

Ratio Decidendi

Legal Principle Established

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