Forde v Wrays Pty Ltd
[2019] FCCA 1703
•20 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FORDE v WRAYS PTY LTD | [2019] FCCA 1703 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal under s 17A of the Federal Circuit Court of Australia Act and r 13.10 of the Federal Circuit Court Rules – where the applicant has filed the wrong form – where the Court has no jurisdiction under s 723 of the Fair Work Act – no power to dispense with the Federal Circuit Court Rules to find that there is substantial compliance and/or grant leave to amened – proceedings summarily dismissed – no order as to costs. |
| Legislation: Fair Work Act 2009 (Cth), ss.566, 570, 723 Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), rr.13.10, 45.06 |
| Cases cited: Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356 Forbes v Petbarn Pty Ltd [2018] FCA 256 |
| Applicant: | JUSTIN MARK FORDE |
| Respondent: | WRAYS PTY LTD |
| File Number: | PEG 78 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 20 June 2019 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms R Dawson Herbert Smith Freehills |
ORDERS
The application is summarily dismissed under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.10 of the Federal Circuit Court Rules 2001 (Cth).
DATE OF ORDER: 20 June 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 78 of 2019
| JUSTIN MARK FORDE |
Applicant
And
| WRAYS PTY LTD |
Respondent
REASONS FOR JUDGMENT
This is an application purportedly within the Court’s jurisdiction under s 566 of the Fair Work Act2009 (Cth) (“the Act”) commenced on 26 February 2019. Most unfortunately the applicant, in lodging the application, filed a Form 3 claim under the Act alleging unlawful termination of employment. The applicant should have used a Form 2 in respect of general protections application. It is apparent from the annexure to the Form 3 that the applicant had obtained a s 368 certificate from the Fair Work Commission. It is also apparent that the substance of the contentions by the applicant are general protection grounds.
The applicant has asked the Court for leave to amend the application so that a Form 2 can be filed. The applicant has also asked the Court to dispense with the requirements of the r 45.06 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in respect of the general protections application and the form to be used. The applicant has also asked that the Court take into account the relevant rule that substantial compliance is sufficient and contends that the substance of the content of Form 3 meets the requirements of substantial compliance.
Section 723 of the Fair Work Act is as follows:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections Court application in relation to the conduct.
That provision has been construed as one which deprives the Court of jurisdiction in circumstances where there is pursued and filed an application for unlawful termination of employment, which in fact falls within the general protections grounds. It is apparent from the facts in this case that those circumstances apply.
In the decision of Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356, a Judge of this Court, Judge Heffernan, in almost identical circumstances, where there was a s 368 certificate, found that by reason of s 723 of the Act the Court had no jurisdiction. On appeal in Forbes v Petbarn Pty Ltd [2018] FCA 256, the learned Charlesworth J at [66] expressed the principle that the conclusion of the primary Judge that the Federal Circuit Court of Australia had no jurisdiction to determine an unlawful termination application was undoubtedly correct. This Court is bound by the decision of the learned Charlesworth J. It does go against ordinary concepts of fairness that the erroneous use of a form could give rise to the applicant’s case being outside the Court’s jurisdiction but, on its face, that is the effect of the statutory provision and further this Court is bound by the principle that s 723 of the Act defines the Court’s jurisdiction as identified in the decision of the learned Charlesworth J.
The applicant has also explained that there were circumstances in which he was affected by a medical condition at the time he made the error in using the wrong form. Ordinarily, this Court would not hesitate but to make orders either dispensing with the requirements of the Rules and/or granting leave to amend because of the erroneous use of a form.
Unfortunately, however, by reason of the decision to which I have referred and the provisions of s 723 of the Act, this Court is bound to uphold the application for summary dismissal as has been filed by the respondent. This Court has no jurisdiction because of the provisions of s 723 of the Act. This Court has no power in those circumstances to dispense with the Rules to find that there is substantial compliance and/or to grant leave to amend.
It follows that it is appropriate for the proceedings to be dismissed because they are doomed to failure under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.10 of the Rules because they have no reasonable prospect of success, given the principles identified as to the proper construction of s 723 of the Act binding upon this Court.
The Court is aware that the respondent drew to the applicant’s attention that an erroneous form had been used, however this Court does not regard that as being grounds by reason of which the Court should depart from the ordinary principle in s 570 of the Act that there should be no order as to costs. Accordingly, the Court declines to make any costs order as sought in the application in a case by the respondent.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 18 July 2019
1
2
4