FEDERAL COURT OF AUSTRALIA
Forbes v Petbarn Pty Ltd [2018] FCA 256
Appeal from: Application for extension of time and leave to appeal: Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356 File number: SAD 22 of 2017 Judge: CHARLESWORTH J Date of judgment: 9 March 2018 Catchwords: APPEAL AND NEW TRIAL – proceedings in Federal Circuit Court of Australia dismissed as having no prospects of success – lack of prospects explained by want of jurisdiction – whether order dismissing proceedings for want of jurisdiction interlocutory – whether leave to appeal required
INDUSTRIAL LAW — Certificate purportedly issued by Fair Work Commission pursuant to s 776 of the Fair Work Act 2009 (Cth) – Commission having no jurisdiction to deal with unlawful termination dispute – Certificate having no legal effect — whether purported issue of Certificate had effect of enlivening jurisdiction of Federal Circuit Court of Australia in an action alleging unlawful termination
INDUSTRIAL LAW – allegations against non-employer parties asserting involvement of others in unlawful termination – facts asserting accessorial liability under s 550 of the Fair Work Act 2009 (Cth) – availability of cause of action – preconditions to jurisdiction of Federal Circuit Court of Australia to hear such a claim
Legislation: Fair Work Act 2009 (Cth) ss 12, 14, 338, 339, 351,365, 368, 370, 383, 539, 550, 723, 772, 773, 776, 778
Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1D), 24(1E), 25(1AA)
Federal Circuit Court Rules 2001 (Cth) r 13.10
Return to Work Act 2014 (SA)
Cases cited: Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356
Forbes v Petbarn Pty Ltd [2016] FWC 2688
Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Luck v Chief Executive Officer of Centrelink (2017) 251 FCR 295
SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410
SZLSI v Minister for Immigration & Citizenship [2008] FCA 1052
Date of hearing: Determined on the papers Date of last submissions: 22 August 2017 (Applicant)
9 August 2017 (First Respondent)
9 August 2017 (Second and Third Respondents)
9 August 2017 (Fourth Respondent)Registry: South Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 87 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Thomson Geer Lawyers Counsel for the Second and Third Respondents: Minter Ellison Counsel for the Fourth Respondent: Gilchrist Connell ORDERS
SAD 22 of 2017 BETWEEN: MARIE FORBES
Applicant
AND: PETBARN PTY LTD
First Respondent
EMPLOYERS MUTUAL LTD
Second Respondent
RETURN TO WORK SA (and another named in the Schedule)
Third Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The application for an extension of time in which…
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- AGLC
- Forbes v Petbarn Pty Ltd [2018] FCA 256
- Case
- [2018] FCA 256
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Federal Circuit Court of Australia had jurisdiction to hear Ms Forbes' claim of unlawful termination and if the Fair Work Commission's (FWC) purported issuance of a certificate under section 776 of the Fair Work Act 2009 (Cth) could confer jurisdiction on the Federal Circuit Court. Additionally, the court needed to determine if the FWC had jurisdiction to hear Ms Forbes' initial application regarding her dismissal, and whether Ms Forbes' allegations of accessorial liability against non-employer parties could support a cause of action within the court's jurisdiction.
The Federal Circuit Court of Australia found that the FWC lacked jurisdiction to deal with Ms Forbes' initial application for an unlawful termination dispute, as she was entitled to make a general protections court application instead. Consequently, the certificate issued by the FWC had no legal effect and did not confer jurisdiction on the Federal Circuit Court. The court further determined that Ms Forbes' claims against non-employer parties did not satisfy the jurisdictional requirements for a cause of action under section 550 of the Fair Work Act 2009 (Cth). As a result, the court dismissed Ms Forbes' applications for leave to appeal and the appeal itself.
The final orders of the court included allowing an extension of time for seeking leave to appeal from the primary judge's orders, dismissing the application for leave to appeal from those orders, granting leave to appeal from the order summarily dismissing Ms Forbes' action, and dismissing the appeal. The orders also addressed the procedural aspects, including the timeliness of the applications and the need for leave to appeal certain orders.
Orders
Orders of the court
1. The application for an extension of time in which to seek leave to appeal from the orders of the primary judge made on 1 August 2016 is allowed.
2. The application for leave to appeal from the orders of the primary judge made on 1 August 2016 and 22 December 2016 dismissing the applicant’s applications in a case dated 13 July 2016 and 8 August 2016 respectively is dismissed.
3. To the extent that the applicant requires leave to appeal from the order of the primary judge made on 22 December 2016 summarily dismissing action ADG149/2016, leave is granted.
4. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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