Forbes v Petbarn Pty Ltd
[2016] FCCA 3356
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FORBES v PETBARN PTY LTD & ORS | [2016] FCCA 3356 |
| Catchwords: INDUSTRIAL LAW – Application for unlawful termination – application for summary judgment against respondents – applications by respondents for summary dismissal – no jurisdiction – no reasonable prospect of success – application for summary judgment against respondents dismissed – applications for summary dismissal granted – proceedings dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.26, 27(1) & (2), 57, 340, 342, 365, 368(3)(a), 370, 370(a)(i), (ii) & (b), 383, 566, 567, 570, 723, 773, 776(3)(a) & 778 Fair Work Commission Rules 2013 (Cth) |
| Cases cited: Nepal v The Minister for Immigration & Border Protection [2015] FCA 499 Jago v The District Court of NSW (1989) 168 CLR 23 |
| Applicant: | MARIE FORBES |
| First Respondent: | PETBARN PTY LTD |
| Second Respondent: | EMPLOYERS MUTUAL (EML) |
| Third Respondent: | RETURN TO WORK SA |
| Fourth Respondent: | MEDIATION ERS PTY LTD |
| File Number: | ADG 149 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 1 August 2016 |
| Date of Last Submission: | 8 August 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| The Applicant: | In person with McKenzie Friend Mr P O'Dowd |
| Counsel for the First Respondent: | Mr K Luke |
| Solicitors for the First Respondent: | Thomson Geer |
| Counsel for the Second & Third Respondents: | Mr A Short |
| Solicitors for the Second & Third Respondents: | Minter Ellison |
| Counsel for the Fourth Respondent: | Ms F Errington |
| Solicitors for the Fourth Respondent: | Gilchrist Connell |
ORDERS
The applicant’s Application in a Case filed 8 August 2016 is dismissed.
Pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth), the proceedings be dismissed as having no reasonable prospects of success.
There be no order for costs as to the costs of the first respondent.
The question of costs of the second, third and fourth respondents is reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 149 of 2016
| MARIE FORBES |
Applicant
And
| PETBARN PTY LTD |
First Respondent
| EMPLOYERS MUTUAL (EML) |
Second Respondent
| RETURN TO WORK SA |
Third Respondent
| MEDIATION ERS PTY LTD |
Fourth Respondent
REASONS FOR JUDGMENT
In this matter, the applicant filed an application on 12 May 2016 under the Fair Work Act 2009 (Cth) (‘the FW Act’) alleging a contravention of a general protection (the principle proceedings). That claim sought to raise an unlawful termination of employment. On 20 June 2016, I made an order that the applicant file and serve an amended application within 7 days. This was done and I will refer to that amended application as the ‘amended principle proceedings’.
On 27 June 2016, the applicant filed the amended principle proceedings against the four respondents under the FW Act alleging an unlawful termination of employment. That claim alleges that each of the four respondents is her employer. The grounds of the application allege termination for the following reasons as set out in Part G of Form 3:
a)Temporary absence from work because of illness or injury of a kind prescribed by the regulations or recourse to competent administrative authorities;
b)The filing of a complaint against an employer involving an allegation of violation of laws or regulations; and
c)Discrimination based on race, colour, sex, sexual preference and other identified matters.
The orders sought are an injunction preventing the cessation of her workcover payments, a pecuniary penalty against all four respondents and certain named employees, to be made payable to her by order of the Court. Re-instatement is not sought.
The applicant’s claims can be summarised as follows. She was employed by the first respondent as a dog groomer and salon manager, commencing work on 10 November 2015. She claims to have sustained an injury during the course of her employment. She began to receive workers compensation payments under the Return to Work Act 2014 (SA).
During the period in which she was unable to work, the applicant claims that she wrote to her employer making complaints of workplace bullying against herself and other employees by a manager and another staff member. In that correspondence, the applicant also made complaints of cruelty to animals, which she said had been perpetrated during the course of employment by an employee of the first respondent.
The applicant claims that her attempted return to work on restricted duties was frustrated by the refusal of her manager to provide her with a copy of her return to work plan, and the manager’s bullying and harassment of her. She claims to have been pressured to perform duties outside the scope of her return to work plan.
The first respondent arranged mediation through the workers compensation insurer (the second respondent) to deal with the applicant’s complaint. The second respondent engaged the fourth respondent to conduct the mediation. That mediation was unsuccessful and the applicant complains that the mediator failed to keep the contents of the mediation confidential. She alleges this was contrary to a non-disclosure agreement.
The applicant complains that the mediation was conducted by the fourth respondent in an unprofessional and unsatisfactory manner. The applicant further complains that in a telephone conversation on 17 March 2016, the mediator reported back to the second respondent and made untruthful comments to them about her conduct during the mediation. In essence, the applicant alleges that the fourth respondent mediator gave advice to the second respondent insurer that was used by the first respondent employer to generate an excuse for her termination on the grounds of misconduct.
On 23 March 2016, the applicant claims that she received notice of a meeting to be convened by the first respondent to investigate her bullying claims and to consider whether her conduct at the mediation gave rise to a proper ground to dismiss her. On 5 April 2016, the applicant’s employment was terminated. She says that this was because of her complaints of bullying and animal cruelty.
Accordingly, the applicant seeks the orders that I have detailed above.
For present purposes, I have before me Applications in a Case filed on behalf of each of the four respondents. Those applications seek orders dismissing the amended principle proceedings and awarding each of them costs. The applicant has also filed an Application in a Case dated 13 July 2016 seeking to have the Responses of each of the four respondents struck out and judgment in default entered in her favour.
The first, second and third respondents have filed Responses to the applicant’s Application in a Case. During the course of submissions on 1 August 2016, I dismissed the applicant’s Application in a Case and indicated that I would provide reasons at a later date. I then proceeded to hear submissions in relation to the respondents’ Applications in a Case.
I note that on the first return date, the applicant appeared with Mr P O’Dowd who sought to speak on her behalf as a ‘litigation friend’. No objection was taken to this course by any of the respondents. Clearly, Mr O’Dowd did not have a right of appearance under s.44 of the Federal Circuit Court Act of Australia 1999 (Cth) (‘FCCA Act’). As far as I can discern, the FW Act does not authorise a lay person to represent a party in proceedings in this Court. In Nepal v The Minister for Immigration and Border Protection[1], Edelman J reviewed authorities on the question of McKenzie Friends, and whilst emphasising the caution that should be exercised by a Court before permitting a McKenzie Friend to speak on behalf of a party, I do not read his Honour’s decision as precluding this from occurring. I permitted Mr O’Dowd to make submissions on behalf of the applicant and as I have noted, no objection was taken to this course.
[1] [2015] FCA 499.
At this point, I will provide reasons for having dismissed the applicant’s Application in a Case.
Applicant’s Application in a Case
The applicant’s Application in a Case seeks the following orders:
“1.The Applicant Marie Forbes applies to the court for an order to strike down and dismiss all and any responses and applications from the first and second and third respondents because; the first and second and third respondents are in Default before the court pursuant to; Court Rules 13.03A(2)(a)(b)(ii)(iii)(vii); 16.01
2.The applicant applies to the court to give judgment against the first and second and third respondents for the relief that the applicant has applied for in the applicants amended application and statement of claim pursuant to; Court Rules 13.03B(1)(a)(2)(c)(i)(ii); 13.07(1)(a)(b)(ii ; 16.01
3.The applicant applies to the court to give judgment against the fourth respondent because all the respondents are linked in the subject of the application and the fourth respondent has no possible chance of success because; the other respondents are in Default. Pursuant to; Court rule 13.07(1)(a)(b)(ii); 16.01; FW Act s 550
4.The first respondent is in Default before the court because;
a)The first respondent did not submit responses to the applicant’s initial application filings with the court in the required time or in the required form of stamped and dated and accepted by the court registry as required by the court.
Pursuant to Court Rules; 6.03(1)(2)(3); 6.11(1)(e); 6.12(d); 6.1; 6.15; 6.19(a)
b)The first respondent did not submit responses to the applicant’s initial application filings with the court before the expiry of “not less than three days before the date of a hearing in a court”.
Pursuant to Court Rule; 6.19(a)
c)The first respondent elected not to amend its initial and invalid and in Default response to, the applicants amended application filed on the 27 June 2016.
Any amended responses by the respondents needing to be filed and stamped and accepted by the court registry on or before the 04 July 2016.
Pursuant to; Court Order of the 20June2016.
5.The second and third respondents are in default before the court because;
a)The second and third respondents failed to comply with an order from the court of 20 June 2016 and did not submit responses to the court on or before the expiry of the maximum allowed time which was on or before the 04 July 2016.
Pursuant to;
i) the Courts Orders of 20 June 2016
ii) Court Rules 13.03A(1)(a)(b)
iii) Court Rules 6.03(1)(2); 6.19
6.The first and second and third respondent have failed Procedural Fairness and are in contempt of the Court because of acts they have done or not done.
a)the first respondent did in the face of the court on the 20 June 2016, silently pass to the applicant a sheaf of papers that had not been received by the court registry and were not stamped, not dated, and not accepted by the court registry pursuant to; Court Rules 19.02(1)(2)(b)(3)
a)The first and second and third respondents have made applications and statements to the court that are knowingly erroneous in fact or wrong in law or have no possible chance of success. Pursuant to; Court rules 19.02(1)(2)(3)(a)” [sic]
The Application in a Case was supported by two affidavits of the applicant, dated 13 July 2016 and 19 July 2016. The affidavit of 13 July 2016 commenced by repeating the orders sought. It then alleges that she has been occasioned procedural unfairness by the actions of each of the respondents. It alleges that each of them has acted in a way that amounts to an abuse of the Court’s process. It asserts that all applications and responses filed by the respondents should be “struck down and dismissed and not entertained by the Court” because each of the respondents is in breach of Court orders. With respect to the second and third respondents, it is also alleged that they made a misrepresentation by a letter of 6 June 2016 from their solicitor that put the applicant on notice of an intention to apply for costs in the event that they were successful in having her claim dismissed against them. The affidavit erroneously asserts that there is no power of this Court to award costs in such circumstances. The applicant states that because Amended Responses were filed after the date for filing set by me, they should be disregarded by the Court.
The allegation of misrepresentation as to costs, that I have identified above, is also made with respect to the first respondent.
The applicant alleges that she was served with an unstamped and unfiled initial Response at Court on 20 June 2016 by the first respondent. The Amended Response of the first respondent was emailed to her on 7 July 2016 outside the date for service set by me. She alleges that she was served with an unstamped copy of the first respondent’s Application in a Case and supporting affidavits, once again outside the date for filing and service set by me.
With respect to the fourth respondent, the applicant alleges that the same misrepresentation as to costs, that I have already identified, was made to her by the fourth respondent. There is no complaint made by the applicant against the fourth respondent with respect to the late filing of documents.
The applicant’s affidavit of 19 July 2016 annexes documents that she says establishes the default alleged by the first three respondents.
Neither affidavit establishes that she has sustained any prejudice by the late filing of the documents by any of the respondents, or identifies how the conduct of any of the respondents has occasioned her procedural unfairness.
The respondents oppose the applicant’s Application in a Case on a number of grounds. The first three respondents acknowledge that their Amended Responses were filed outside the time frame set by my orders. They seek that the Amended Responses be accepted by the Court nunc pro tunc in other words, that they be received retrospectively. I am prepared to accept them on that basis. The first respondent submitted that it had filed its Application in a Case on 11 July 2016, within the timeframe set, but that it served it on the applicant the following day. The copy was, unknown to the first respondent, unsealed. It provided a sealed copy to the applicant on 13 July 2016.
The second and third respondents submitted that their correspondence to the applicant did not contain misrepresentations as to costs. They are correct in that regard. The affidavit of Mr Short attests that there was an administrative problem in his office that prevented effective electronic filing of the Amended Response on 4 July, although that was the intention. The document was successfully filed on 5 July 2016, less than one day outside the timeframe set by me.
The respondents point to the fact, already noted by me, that the applicant has not established any prejudice caused to her by the late filings of the documents.
The first respondent denied that it had acted unfairly in passing an affidavit in response to the applicant in Court.
The applicant is correct to submit that the Court has power to give judgment against a respondent who is in default of orders. It is a discretionary matter. One difficulty with the applicant’s submission is that all of the Responses which were not filed within the timeframe set by my order have now been filed. Solicitors for each of the respondents have always attended at Court and the respondents have clearly engaged with these proceedings by providing instructions to their legal advisors. In so far as the non-compliance is concerned, it was not egregious or lengthy. It has not caused the applicant any prejudice. The rules of court are designed to facilitate the timely administration of justice. They are not intended to create a mechanism whereby an applicant can obtain judgment in default in any and every circumstance in which a respondent is in default of an order to file and serve a document. That observation does not derogate from the responsibility of a party to proceedings to comply with orders of the court.
This Court has power, under r.3.05 of the Federal Circuit Court Rules of Australia 2001 (Cth) (‘the FCCA Rules’) to waive compliance with time limits, including time limits that have already expired. As I have noted, no prejudice has been occasioned to the applicant by the late filing of documents. Considerable prejudice would be caused to the first, second and third respondents were I to order judgment in default. This is an appropriate matter in which to retrospectively extend time pursuant to r.3.05(3) of the FCCA Rules in order to receive the relevant documents nunc pro tunc. I formed the view that the applicant’s application to strike out the Responses and make an order for judgment in default had no merit and accordingly I dismissed her Application in a Case in that regard.
As I have already stated, there was no misrepresentation as to the potential for the respondents to apply for their costs made by any of the respondents. Under s.570 of the FW Act, the Court has the power to award costs in a matter such as this. To make the matter abundantly clear to the applicant, I will set out s.570 of the FW Act below:
“570 Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2)The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.”[2]
[2] Sections 569 and 569A have no application to this matter.
Even if there had been a misrepresentation made by the respondents in that regard, it is difficult to see how that would form a basis for entering a default judgment in favour of the applicant. In fact, in putting the applicant on notice of their position with respect to costs, the respondents have acted fairly towards her.
I have considered whether the irregularity complained of by the applicant amounted to an abuse of process. There was no abuse of process or procedural unfairness occasioned to the applicant when she was handed documents in Court by the solicitor for the first respondent. Further, in doing so, the first respondent was not in contempt of court under r.19.02 of the FCCA Rules. The usual remedy for an abuse of process is a stay of proceedings. It should be born in mind that a finding of abuse of process is designed to enable a court to protect its own processes from misuse or abuse. In a different statutory and jurisdictional context, the granting of a stay for an abuse of process has been described in Jago v The District Court of NSW[3] as discretionary and only to be used in exceptional circumstances where there is a fundamental defect in the proceedings, “which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”[4] A defect of that order is the proper benchmark against which to assess whether the applicant’s complaint that the handing to her of a document by the first respondent across the bar table could possibly be seen as an abuse of process. In any event, it would hardly assist the applicant if I were to stay proceedings, because it is she who seeks to prosecute the claim.
[3] (1989) 168 CLR 23. See also Williams v Spautz (1992) 174 CLR 509.
[4] Ibid at p 34.
The circumstances identified by the applicant do not give rise to either an abuse of process or a contempt of court by the first respondent.
For those reasons I dismissed the remaining grounds in the applicant’s Application in a Case.
Respondents’ Applications in a Case
Each of the respondents seeks an order that the Court summarily dismiss the application as against them, pursuant to r.13.10 of the FCCA Rules. The respondents rely on the following affidavits in support of their applications:
a)For the first respondent: affidavit of Karl Andrew Luke dated 12 July 2016, 8 August 2016 and 29 July 2016; and affidavit of Lachlan Boucaut dated 20 May 2016.
b)For the second and third respondents: affidavit of Andrew Short dated 6 July 2016.
c)For the fourth respondent: affidavit of Fiona Errington dated 7 July 2016.
Each respondent seeks an order for their costs pursuant to s.570 of the FW Act. Each of the second, third and fourth respondents makes the submission that they have never employed the applicant and for that reason alone, there is no prospect of success against them.
I will summarise briefly the background to these proceedings as detailed in the affidavit of Karl Andrew Luke dated 12 July 2016. The essential aspects of that chronology were not disputed by the applicant:
a)On 18 April 2016, the applicant filed an application in the Fair Work Commission to deal with an Unlawful Termination Dispute pursuant to s.773 of the FW Act;
b)On 28 April 2016, the Commission issued a Certificate pursuant to s.776(3)(a) of the FW Act. The Commissioner published a decision on that day that indicated that the applicant was not precluded from making a general protections application. That finding was significant because s.723 of the FW Act precludes a person from making an unlawful termination application if they are entitled to make a general protections court application in relation to the impugned conduct;
c)On 29 April 2016, the applicant filed a General Protections Application Involving Dismissal against the first respondent in the Fair Work Commission (‘the General Protections Application’). The General Protections Application was listed for a conciliation conference before the Tribunal on 4 July 2016;
d)On 27 June 2016, the applicant filed a claim in Form 3 in this Court alleging unlawful termination of employment; and
e)The applicant contacted the Fair Work Commission on 1 July 2016 advising that she wanted to discontinue the General Protections Application and the Commission noted the discontinuance under s.10 of the Fair Work Commission Rules.
The first respondent submits that the amended principle application is deficient for the following reasons. Section 778 of the FW Act precludes a person from making an application in court for an unlawful termination unless it is made within 14 days of a s.776(3)(a) Certificate being issued in relation to the dispute by the Fair Work Commission, or within such period as the court allows. The applicant’s claim is accordingly filed out of time and statute barred, unless I extend the period in which to make it.
Further, the respondents submit, as I have noted above, s.723 of the FW Act states that a person must not make an unlawful termination application in circumstances where that person would be entitled to make a general protections application under the FW Act.
The respondents submit that the applicant was on notice of this fact by virtue of the decision of Commissioner Platt dated 28 April 2016.
By virtue of s.723 of the FW Act, the first respondent submits that this Court’s jurisdiction has not been enlivened for the purpose of hearing the applicant’s unlawful termination claim.
With respect to the interim injunction sought, the first respondent submits that this Court has no jurisdiction to make an order for an injunctive relief re-instating the applicant’s workers compensation payments. The question of entitlement to workers compensation payments is dealt with by the Return to Work Act 2014 (SA). The submission is also made by the second and third respondents. Mr Short’s affidavit makes clear that the applicant has already taken proceedings in the South Australian Employment Tribunal to have the compensation payments re-instated. That matter was not disputed by the applicant. Those payments were re-instated by a conciliation officer of the Tribunal on 23 May 2016. In other words, the first respondent submits that not only has the issue already been dealt with prior to the filing of the Form 3 claim in this Court, but an application to this Court on that subject matter is utterly misconceived. In any event, the first respondent submits that such an order cannot be made against it as it is not within the power of the first respondent to provide the relief sought. It is also not within the power of the second or fourth respondents.
The second, third and fourth respondents also seek summary dismissal of the applicant’s claim pursuant to r.13.10 of the FCCA Rules on the basis that there is no reasonable prospect of success and that the proceedings are vexatious and an abuse of the Court’s process.
Mr O'Dowd submitted that the respondents were not permitted to make their applications to summarily dismiss, or any submissions in support of those applications, because they were in default of the orders of this Court as identified in the applicant’s Application in a Case.
With respect to the s.776 Certificate issued by the Commissioner, he submitted that this gave the applicant standing to make a s.773 unlawful termination application in this Court. He submitted that the only defect in the principle proceedings was that the applicant had initially used the wrong court form to file the application. None of the affidavit material relied on by the respondents was admissible. He submitted that this Court had power to grant the injunctive relief sought by virtue of s.18 of the FCCA Act which states:
“Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.”
I reject those submissions.
Consideration
I will deal firstly with the issue of the injunctive relief sought by the applicant. This Court has no jurisdiction to make the orders sought against the respondents. Further, even if I did have jurisdiction, the subject matter has already been partially determined by the South Australian Employment Tribunal, and the payments reinstated at least until determination of the applicant’s workers compensation claim. As to the jurisdictional argument, whilst s.566 of the FW Act confers jurisdiction on this Court in relation to matters arising under that FW Act (subject to the matters identified in s.567), s.27(1) of the FW Act limits the ambit of s.26 of the FW Act by providing that s.26 does not apply to “non-excluded matters”. Pursuant to s.27(2), workers compensation is a non-excluded matter. For that reason, I do not have any jurisdiction under the FW Act to deal with a workers compensation dispute. The argument advanced by the respondents is plainly correct.
As to the submission of the second to fourth respondents, inclusive, that the applicant has no reasonable prospect of prosecuting her claims successfully against them, I note that none of the second to fourth respondents, inclusive, has ever been the employer of the applicant.
This Court has power pursuant to s.17A(2) of the FCCA Act to give judgment to a party against another if the other party has no reasonable prospect of successfully prosecuting the proceeding.
Rule 13.10 of the FCC Rules provides a rules based power for the same remedy as follows:
“13.10 Disposal by summary dismissal
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. …”
The object of the section and rule is to empower the Court to prevent and deter proceedings without merit.
It is necessary, in order to avoid injustice to an applicant, to exercise caution in assessing the question of whether there are reasonable prospects of success in prosecuting a claim. In a different division of this Court, it has been held that there will be reasonable prospects of success if there is evidence reasonably capable of belief to enable the applicant to succeed.[5] The test has also been described in the Full Court of the Federal Court as being whether there is evidence of sufficient weight and quality to enable an applicant to successfully prosecute the claim.[6]
[5] Jacobs v Vale (2008) FMCAfam 641 at [14].
[6] Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors (2008) 103 ALD 505.
There is no evidence of sufficient quality or weight that would be capable of establishing that any of the second to fourth respondents, inclusive, have taken adverse action against the applicant within the meaning of s.342 of the FW Act. There is no evidence that any of the second to fourth respondents, inclusive, have ever employed the applicant, or axiomatically that they unlawfully terminated her employment. The applicant has no reasonable prospects of success against the second to fourth respondents, inclusive, on either the principle proceedings as initially filed, or the amended principle proceedings.
The second, third and fourth respondents also submit that the applicant’s claim against them should be dismissed on the basis that it is vexatious and without reasonable cause. It is frivolous in the sense that it has no merit and could not possibly succeed. The term vexatious was considered by Burnett FM (as he then was) in the context of an application for costs.[7] His Honour referred to authority on the point:
“It was submitted on his behalf that a proceeding would only be instituted vexatiously where the predominant purpose in instituting the proceeding was to harass or embarrass a party or to gain collateral advantage; Nilsen v Loyal Orange Trust. Further the Applicant relied upon dicta by Wilcox CJ in Hanrahan v Westfarmers Dalgety Limited where His Honour said “the word “vexatiously” has a connotation of action taken to harass or annoy another party, an element of malicious being involved.” (citations omitted)
[7] Jonsson v Theodore Hotel Co-operative Association Ltd [2007] FMCA 1199.
Given the apparent animus the applicant bears towards the second and fourth respondents, as demonstrated in her amended principle proceedings, and that she was well aware that the proper means of achieving a reinstatement of her workers compensation payments was through the South Australian Employment Tribunal, I am satisfied that the applicant’s claim as against the second to fourth respondents, inclusive, was not merely misguided, but vexatious.
I grant the applications of the second to fourth respondents, inclusive, and I dismiss the proceedings as against each of them pursuant to r.13.10 of the FCC Rules.
With respect to the claim against the first respondent, it is necessary to outline in more detail the background to these proceedings.
The original Fair Work Commission proceedings raised by the applicant purported to make an application pursuant to s.773 of the FW Act and were determined by Commissioner Platt on 28 April 2016. On that day, the Commissioner issued a s.776(3)(a) Certificate.[8]
[8] ‘Annexure 2’ Affidavit of Karl Andrew Luke dated 11 July 2016 at pp 27-29.
The Commissioner’s decision was to the effect that:
a)Ms Forbes was entitled to make a general protections application involving unlawful termination;
b)By virtue of s.723 of the FW Act, she was barred from making an application under s.773 of that Act because of (a) above;
c)Ms Forbes’ contention that she was precluded from making a general protections claim because she did not satisfy the minimum employment period specified in s.383 of the FW Act was misconceived; and
d)In the Commissioner’s opinion, Ms Forbes did not have a reasonable prospect of success under s.773 because of (a) – (c), inclusive, above.
The Commissioner was correct to find that the applicant was entitled to make a general protections application involving unlawful termination pursuant to s.365 of the FW Act.
The s.776 Certificate put the applicant on notice that she had 14 days in which to make a ‘general protections court application’ in either the Federal Court or this Court, unless the Court extended the time for making such an application. This information was conveyed under the heading ‘Important Note’. The applicant filed the principle proceedings in this Court on 12 May 2016. This was within the time stipulated in the s.776 Notice for filing a ‘general protections application’ in this Court. The principle proceedings alleged a contravention of a general protection. The application alleged unlawful termination, workplace bullying, and contraventions of s.340 rights.
With respect to the principle proceedings, the applicant faced an insurmountable hurdle with respect to s.370 of the FW Act. That section deals with taking general protections dismissal disputes to court. The section reads as follows:
“Taking a dismissal dispute to court
370 A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)both of the following apply:
(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b)the general protections court application includes an application for an interim injunction.”
The Fair Work Commission did not issue or purport to issue a certificate under s.368(3)(a) in relation to the dispute. Given the application before it was erroneously made pursuant to s.773 of the FW Act, it issued a Certificate under s.776. In the circumstances, it had no power to issue anything other than a s.776 Certificate.
Due to the absence of a Certificate issued under s.368(3)(a), the applicant was barred from taking court action alleging termination in contravention of a general protection, unless the court application included an application for an interim injunction.[9]
[9] Section 370(b) of the FW Act.
The principle proceedings did include an application for an interim injunction which sought injunctive relief by way of an order of this Court “directing EML to reinstate workcover income support payments pending the outcome of this application”. As I have already observed, this Court has no jurisdiction to make such an order, and so the purported application for injunctive relief does not enable the applicant to avoid the fact that she is unable to meet the requirement of s.370(a)(i).
As can be seen, the outcome of the applicant’s misconceived s.773 application to the Fair Work Commission was compounded by, with respect, the erroneous advice given to her in the s.776 Certificate. The issuing of the s.776 Certificate did not give standing to the applicant to file a general protections application in this Court because of the requirements of s.370. In filing the principle proceeding, the applicant appears to have been doing nothing more than that which she was advised to do by the Certificate.
Accordingly, when the principle proceedings came before me for the first occasion on 20 June 2016, they were for the reasons I have indicated above, fatally flawed.
A similar, but not identical, set of circumstances were dealt with by her Honour Judge Jones of this Court in the matter of Gration v Remote King and Anor.[10]
[10] [2015] FCCA 2617.
As noted by Judge Jones in Gration[11], Federal Magistrate Lucev (as he then was), in the matter of Pitrau v Barrick Mining Services Pty Ltd[12] held that the absence of the relevant Certificate from the Fair Work Commission means the Court is without jurisdiction, only the Fair Work Commission can issue a Certificate and a s.777 Certificate (as it then was)[13] cannot be amended by a Court to make it a s.369[14] Certificate (as it then was).
[11] Ibid at [43].
[12] [2012] FMCA 186.
[13] Now a s.776 Certificate.
[14] Now a s.368 Certificate.
They were the flaws in the principle proceedings. Against that background, I made an order on 20 June 2016, at the request of the applicant, allowing her to amend the principle proceedings. The intended effect of that order was to enable the applicant to amend to include two matters identified by her on 20 June 2016. Those matters were to do with asking the Court to “share” any pecuniary penalty with Workcover, and as I understood the submission, to extend the injunctive relief sought “until the completion of these proceedings”. When the applicant filed the amended claim, she purported to amend, in effect to convert the proceedings from a general protections claim to an unlawful termination claim. This was not the purpose for which leave to amend was granted.
I have considered the decision of Judge Jones in Gration’s case and her thorough analysis of decisions of this Court and the Federal Court in relation to the jurisdictional implications of such an order for amendment. Applying her Honour’s reasoning, if I had no jurisdiction to entertain the general protections application (the principle proceedings), it follows that I have no jurisdiction to allow the applicant to amend the application from a general protections application to an unlawful termination application.[15]
[15] Gration, Op Cit, at [53].
Whilst I do not understand the issue to have been authoritatively determined by the Full Court of the Federal Court, principles of judicial commity would ordinarily suggest that I should follow her Honour’s decision and refuse to allow the applicant to amend her principle proceedings in the manner she has sought to do for want of jurisdiction. In any event, I permitted the applicant to amend her proceedings and argument proceeded on the basis of the respondents seeking dismissal of the amended principle proceedings.
Regrettably, for the applicant, the amended principle proceedings are fatally flawed.
I will now address the first respondent’s submission that the amended principle proceeding should be dismissed.
I reject the submission that the amended principle proceedings are out of time. The principle proceedings were filed within the 14 day period after the s.776 Certificate was issued. The amended principle proceedings allege an unlawful termination and not a breach of a general protection, but they are a continuation of the proceedings that were filed within time.
I accept the submission of the first respondent that the applicant is statue barred by s.723 of the FW Act from making an unlawful termination application in relation to conduct in circumstances where she is entitled to make a general protections court application. I respectfully refer to her Honour’s judgment in Gration’s case[16]:
“I am satisfied that the use of the opening words in s.723, “A person must not make…” prohibits absolutely a person from making an unlawful termination application in relation to conduct which would entitle the person to make a general protections court application.”
[16] Gration, Op Cit, at [31].
The applicant is entitled to make a general protections court application subject to satisfying the pre-conditions in s.370. The applicant does not satisfy those pre-conditions because she has not been given a Certificate under s.368 of the FW Act. The applicant is not able to circumvent the preconditions in s.370(a)(i) and (ii) by virtue of the injunctive relief sought because I have no jurisdiction to grant the injunctive relief sought.
What the applicant should have done when the Fair Work Commission dismissed her s.773 application, was file a general protections application alleging unlawful termination in the Fair Work Commission. It is most regrettable that the applicant in fact did this but then discontinued that application on 1 July 2016. The applicant no doubt discontinued that application because she believed, incorrectly, that she had satisfied the preconditions that would entitle her to file the principle proceedings in this Court. The clear inference from the chronology is that she held that belief because of the erroneous advice contained in the s.776 Certificate issued by the Fair Work Commission.
To be clear, I am satisfied that I have no jurisdiction to entertain the principle proceedings as initially filed, or as amended.
Whilst it is not the proper role of a Court to advise an applicant, it would seem that her only recourse to pursue a general protections unlawful termination dispute is to apply to the Fair Work Commission to re-enliven her discontinued application, or to file a fresh general protections application involving an unlawful termination in the Fair Work Commission. If a s.368 Certificate is then issued, the applicant would have standing by virtue of s.370 to pursue a general protections application in this Court.
There is no jurisdiction for this Court to entertain these proceedings. For that reason, I also reject the submission of the first respondent that the applicant’s position could be cured by the Court granting the applicant an extension of time in which to make a s.773 court application. It follows that the proceedings have no reasonable prospect of success. I dismiss the proceedings as against the first respondent.
After argument in this matter on 1 August 2016, the applicant filed another Application in a Case seeking orders for summary judgment against all four respondents, and declarations that both the first and second respondents are in contempt of court.
That application of course seeks to agitate substantially the same material as in the applicant’s Application in a Case dated 13 July 2016 which I have dismissed. I determined that it was not appropriate to consider that application until judgment had been delivered on the applications I have just dealt with. In the circumstances, having determined to dismiss the proceedings, the further Application in a Case cannot succeed and there is no basis on which to hear submissions on it.. To the extent that it is necessary given my decision in this matter, I dismiss that application.
Costs
All four respondents seek their costs.
With respect to the first respondent, I respectfully refer again to her Honour’s decision in Gration’s case, where she referred to authority on the question of costs under s.57 of the FW Act:
“I am satisfied that the approach to be adopted in determining an application made under s.570(2) is to determine:
a)Whether, having regard to the particular circumstances of the case, the party against whom a costs order is sought engaged in an unreasonable act or omission; and
b)If the answer to a) is Yes, whether that unreasonable act or omission caused the other party to incur costs;
c)In the event these two criteria are satisfied, whether the Court should exercise its discretion to award costs.
In addition, the discretion conferred within the provisions of s.570(2) should be exercised without due haste and cautiously: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6].
In Ryan v Primesafe [2015] FCA 8, Mortimer J dealt with an application for costs arising from proceedings under the Act. In relation to the provisions in s.570 of the Act generally Her Honour noted:
‘64. I accept the general import of the authorities relied on by the applicant and Mr McDonald in their written submissions about the significance of the threshold set by s.570(2) of the Fair Work Act. Although some of the authorities relied on dealt with the predecessor provisions to s.570, there is no difference in substance in the way the threshold is expressed. The discretion conferred by the confined terms of s.570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind
s.570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s.570, are traced by the Full Court in Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) (2012) 203 FCR 430; [2012] FCAFC 103 at [3]- [4] per Jessup and Tracey JJ.65. None of those propositions deny the Court’s ability to find that one or both of the two preconditions expressed in
ss 570(2)(a) and (b) exist where the factual circumstances warrant it. The legislative policy behind a provision such as s.570(1) is not inconsistent with the requirements for proceedings to be conducted reasonably, fairly and efficiently. As an access to justice provision, it contemplates parties and their legal representatives will access the Court responsibly.’”[17][17] Gration, Op Cit, at [56]-[58].
The applicant’s failure to ensure that she had standing to make a court application under the FW Act, was no doubt influenced by the incorrect information in the s.776 Certificate. I decline to make an order for costs in favour of the first respondent. I am not satisfied that as against the first respondent, the applicant instituted proceedings vexatiously or that she knowingly instituted the proceedings without reasonable cause, or that the first respondent’s costs were caused by her unreasonable act or omission.
I reserve the question of costs as against the second to third respondents, inclusive.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 22 December 2016
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