Forde v Wrays Pty Ltd - [2019] FCCA 1703

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…

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.

Continue reading Forde v Wrays Pty Ltd

Details

AGLC: Forde v Wrays Pty Ltd [2019] FCCA 1703
Case: [2019] FCCA 1703
Decision Date: 20 June 2019

CaseChat Overview and Summary

Forde (Applicant) sought to bring proceedings against Wrays Pty Ltd (Respondent) in the Federal Circuit Court of Australia. The applicant had filed an application using the incorrect form, and the court was asked to consider whether it had jurisdiction to proceed and whether it could dispense with its own rules.

The central legal issues before Judge Street were whether the court possessed jurisdiction to hear the matter given the filing of the wrong form, and whether the court had the power to overlook the non-compliance with the Federal Circuit Court Rules, either by finding substantial compliance or by granting leave to amend the application.

Judge Street determined that the court lacked jurisdiction under section 723 of the *Fair Work Act 2009* (Cth) due to the applicant's failure to use the prescribed form. The court found it had no power to dispense with the Federal Circuit Court Rules to deem the application substantially compliant or to grant leave to amend in these circumstances. Consequently, the proceedings were summarily dismissed. No order was made as to costs.

Orders