Gration v Remote King & Anor
[2015] FCCA 2617
•25 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRATION v REMOTE KING & ANOR | [2015] FCCA 2617 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal – whether applicant’s principal application is statute barred by reason of s.723 of the Fair Work Act 2009 – whether applicant’s application to amend her unlawful termination court application to a general protections court application is within jurisdiction – finding that court has no jurisdiction to deal with applicant’s application – application for costs pursuant to s.570 of the Fair Work Act 2009 dismissed. |
| Legislation: Fair Work Act 2009, ss.723, 570, 337, 338, 339, 340, 341, 351, 368, 370, 365, 570(2)(b), 725, 370(a)(ii), 778(a)(ii), 773, 777, 371, 369 |
| Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Hill v Compass Ten Pty Ltd [2012] FCA 761 |
| Applicant: | JASMINA GRATION |
| First Respondent: | REMOTE KING |
| Second Respondent: | LUCAS ANTHANASOPOULOS |
| File Number: | MLG 842 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 21 September 2015 |
| Date of Last Submission: | 21 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 25 September 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Jones |
| Solicitors for the Respondent: | Porto Grace & Drew Lawyers |
ORDERS
Pursuant to rule 13.10 of the Federal Circuit Court Rules2001, the proceeding be struck out as having no reasonable prospect of success, for want of jurisdiction.
The Orders of Registrar Caporale made on 21 May 2015 be set aside.
The Application in a Case filed on 21 September 2015 as to the issue of costs be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 842 of 2015
| JASMINA GRATION |
Applicant
And
| REMOTE KING |
First Respondent
| LUCAS ANTHANASOPOULOS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application in a Case, filed on 29 June 2015, by the Respondent to principal proceedings instituted on 21 April 2015. The Application in a Case seeks the summary dismissal of the principal proceedings, pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the Applicant’s proceeding has no reasonable prospect of success. The Orders sought are as follows:
a)Pursuant to rule 13.10 of the Federal Circuit Court (sic), the proceeding be struck out as having no reasonable prospect of success, pursuant to section 723, Fair Work Act 2009.
b)A declaration that the consent orders of Registrar Caporale, dated 21 May, 2015 are a nullity.
c)Alternatively, the consent orders of Registrar Caporale, dated 21 May, 2015, be set aside.
d)Costs of the application, pursuant to s.570(2)(B) (sic) of the Fair Work Act 2009.
The Respondent’s application is supported by an affidavit sworn by Marihan Hanna on 24 June 2015 and filed on 29 June 2015 (“Hanna Affidavit”).
The reason why the principal proceeding is said to have no reasonable prospect of success, is because of the effect of s.723 of the Fair Work Act 2009 (Cth) (“the Act”), which provides:
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.
Background
On or about 6 March 2015, the Applicant filed in the Fair Work Commission (“the Commission”), pursuant to s.365 of the Act, a “Form 8 - General protections application” (MH-1, Hanna affidavit). In that Form the Applicant said she was represented by Employee Assist and that she was dismissed on 16 February 2015 “for taking annual leave to take care of her son.” At section 3.3 of the Form 8, she identified the following sections of the Act, which she alleged had been contravened, s.340 and s.351. These provisions are located in Part 3-1 of the Act and shall be referred to in this decision as “the general protection provisions”.
Sections 337, 338 and 339 of the Act set out to whom the general protections provisions apply. As the Respondent in these proceedings is a constitutional corporation and the Applicant is an employee in the State of Victoria the general protections provisions of the Act apply to her.
Section 340 of the Act provides a person must not take adverse action against another person because they have, have exercised, or have not exercised or have proposed or proposed not to exercise a workplace right. Under s.341 a workplace right is defined as including the entitlement of a person to the benefit of a workplace law, workplace instrument or order made by an industrial body; the ability of a person to initiate or participate in proceedings under a workplace law or instrument and the ability to make a complaint or inquiry to a person or body having the capacity under workplace law to seek compliance with the law or a workplace instrument or, if the person is an employee, in relation to his or her employment. Section 351 of the Act, prohibits an employer taking adverse action against an employee because of a person’s specified attributes, including family or carer’s responsibility.
On 8 April 2015, Commissioner Ryan issued a certificate pursuant to s.368 of the Act, certifying that he had conducted a conference to deal with the dispute on 8 April 2015 and that he was satisfied that all reasonable attempts to resolve the dispute have been, or likely to be, unsuccessful (MH-2, Hanna Affidavit).
Section 370 of the Act, which governs the commencement of general protection court applications, provides that a person who is entitled to apply under s.365 for the Commission to deal with a dispute “must not” make a “general protections court application” unless the Commission has issued a certificate under s.368 in relation to the dispute and the general protections court application is made within 14 days after the date the certificate was issued or within such period as the Court allows.[1]
[1] This section exempts a person from these requirements where an interim injunction is sought:s.338(b).
The Applicant, in circumstances where the Commission had issued a certificate pursuant to s.368, was entitled to pursue her general protections court application within 14 days after the date the certificate was issued or by leave of the Court after the 14 days.
On 21 April 2015, the Applicant filed an Application and a Form 3 – “Claim under the Fair Work Act 2009 alleging unlawful termination of employment”, in the Fair Work Division of the Court. It is to be noted that the Applicant made this application on her own behalf.
At “Part G - Grounds of the claim of unlawful termination,” the applicant identified that her termination was for the following reasons:
a)temporary absence from work because of illness or injury of a kind prescribed by the regulations; and
b)the filing of a complaint, or the participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative authorities
Section 772(1) of the Act prohibits an employer from terminating an employee for one or more specified reasons which include:
a)temporary absence from work because of illness or injury of a kind prescribed by the regulations; and
…….
e)the filing of a complaint, or the participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative authorities
The details of her claim of unlawful termination of employment are specified by the applicant as:
“I had 4 days off on annual leave, as my son had been suspended from school and needed to go to his psychologist appointment. He wasn’t allowed back at school for the rest of the week. Having just got my son in my custody from my husband. On Monday, 16 February 2015 I returned to work to be dismissed at 5 pm without any warnings. I was dismissed on the spot, even though my leave was approved.”
On 21 May 2015, consent orders were made by Registrar Caporale directing the Respondent to file its response and otherwise ordering the parties to attend mediation.
On 16 June 2015, the Respondent filed a Response seeking orders that the proceedings be struck out pursuant to rule 13.10 and that the consent orders of Registrar Caporale be set aside.
Submissions
The Respondent submits that because of the operation of s.723, the principal application is statute barred and her application has no reasonable prospects of success.
The Respondent submits the Applicant was entitled, subject to making her application in time or the court granting leave to allow further time, to make a general protections court application with respect to her claims of breaches of sections 340 and 351 under the general protection provisions of the Act. Consequently, she was prohibited by s.723 from making an unlawful termination court application.
The Respondent referred to various authorities, considered below, in support of its submissions.
The Applicant says that a legal firm, Employee Assist, prepared and filed her claim in the Commission but after that point has not represented her. She claims that she was advised when she came to this Court to complete the paperwork for filing her application.
It was apparent from her submissions that she completed the Form 3 without particularly understanding the contraventions she was alleging in her application. She said that the substance of her claim in these proceedings was the same as the claims she pressed in the Commission. At one point, it appeared that her complaint was in fact that her dismissal was unfair.
I explained to the Applicant, in terms I hoped would assist her to understand, the different legislative requirements under the scheme of the Act in relation to general protections applications and the claims of unlawful termination. Following this explanation, the Applicant made an oral application that her unlawful termination court application be amended to a general protections court application.
In order to provide the Applicant with the benefit of orders at the earliest possible time, I informed the parties at the conclusion of the proceedings, in general terms my reasons for the orders I proposed to make that day. I stated I would issue a written judgment at the earliest time possible. I informed them that I would be dismissing the application pursuant to rule 13.10 because I had formed the view that the application had no reasonable prospects of success. I stated that this was because, in was my opinion, the effect of the operation of s.723, in the circumstances of this case, is that the Court had no jurisdiction to deal with the claim. The Respondent sought costs pursuant to s.570(2)(b). Providing an explanation for my reasons, I dismissed the Respondent’s application for costs. The orders I made on 21 September 2015 were:
a)Pursuant to rule 13.10 of the Federal Circuit Court Rules2001, the proceeding be struck out as having no reasonable prospect of success, for want of jurisdiction.
b)The Orders of Registrar Caporale made on 21 May 2015 be set aside.
c)The Application in a Case filed on 21 September 2015 as to the issue of costs be dismissed.
Consideration
I should say first, that I am satisfied that the conduct which the Applicant complains about, is conduct about which she is entitled to make a general protections court application. There is no dispute and I accept that she would be entitled to make an application pursuant to
s.340 and s.351 (which she in fact did in the Commission) about the conduct which she recites in her Form 3 claim. (See [4] and [13] above). Further, as I have indicated, she has obtained a certificate pursuant to s.368 of the Act and subject to the specified time limits was entitled to bring a claim alleging contravention of the general protection provisions of the Act.
The question before the Court is whether by reason of s.723, the Court lacks jurisdiction to entertain the Applicant’s application. A second issue arises, if I find the principal application is not statute barred. This is, whether I should exercise my discretion under rule 7.01 of the Rules to amend her application to allow her to proceed under the general protection provisions of the Act.
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41, McHugh, Gummow, Kirby and Hayne JJ discussed the approach to be taken to statutory interpretation, saying:
“[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (footnotes omitted)
Section 723 of the Act governs the making of unlawful court applications. It provides:
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.
The words of s.723 are clear and unambiguous. It commences with the words, “A person must not make”. The phrase “must not make” is to be found in related provisions of the Act dealing with general protection provisions court applications and multiple actions (see [37] below). Section 370 commences with the phrase, “A person who is entitled to apply under section 365 the FWC to deal with a dispute must not make a general protections court application …”. Section 778, which deals with unlawful terminations commences in the same terms. Likewise, s.725 provides:
“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
Sections 370 and 778 provides a Court with a discretion in relation to the condition precedent setting out the time limits within which Court applications must be made: s.370(a)(ii) and 778(a)(ii). By contrast, there is no discretion provided to a Court under s.723 and s.725.
In Hill v Compass Ten Pty Ltd [2012] FCA 761 (Hill), Justice Cowdroy stated with respect to the use of the word “must” in s.371 (which is now s.370) at [29] to [30]:
29. In Posner v Collector for Inter-State Destitute Persons (Victoria)[1946] HCA 50; (1946) 74 CLR 461, Williams J stated at 490:
“Must” is a word of absolute obligation... It is not merely directory.
30. In Pitrau v Barrick Mining Services [2012] FMCA 186 (‘Pitrau’), Lucev FM stated at [23]:
The use of “must” is indicative of an imperative command, either positive or negative, depending upon the word or words which follow it in the relevant statutory provision. It expresses necessity in the sense of an obligation or requirement. [Footnote omitted]
His Honour then stated at [31]:
“It follows that s.371 of the FW Act prohibits absolutely the making of general protections court applications without a s 369 certificate. This finding accords with the decision of North J in Newman v East Yarra Friendly Society trading as My Chemist Pharmacy [2011] FCA 1262 (‘Newman’) and with cases such as Poole v Rod Baker & Co (2011) 207 IR 264; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd (2011) 211 IR 250; and Cavar v Nursing Australia [2011] FMCA 929.
(My emphasis)
By the same reasoning, 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.
It is evident from the scheme of the Act, that an employee who is dismissed can seek relief in three ways:
a)The first is by alleging contravention of what is called the general protection provisions of the Fair Work Act. These provisions are located in Part 3-1 - General Protections of the Act;
b)the second is by alleging unfair dismissal under Part 3-2- Unfair Dismissal of the Act; and
c)the third is by alleging unlawful termination under Part 6-4 -Additional provisions relating to termination of employment of the Act.
The objects of Part 3-1 are specified as including to protect workplace rights, to provide protection from workplace discrimination and to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of that Part: s.336.
The objects of Part 6-4 are to give effect to various International Labour Organisation conventions: s.771. A person who alleges dismissal in contravention of the general protection provisions of the Act or who alleges unlawful termination may file in this Court (as well as the Federal Court of Australia) provided that person has submitted to conciliation before a member of the Commission to deal with the dispute and obtained a certificate and provided the application to the Court is made within 14 days of the certificate being issued or further time by leave of the Court: see sections 368 and 778.[2]
[2] Both sections exempt a person from these requirements where an interim injunction is sought:s.338(b) and s.778(b).
There is a further Part of the Act which provides the context for the operation of these provisions. This is Part 6-1- MULTIPLE ACTIONS.
Division 2 of Part 6-1 is headed, “Certain actions not permitted if alternative action can be taken.” Section 723 is located in this Division.
Division 3 - Preventing multiple actions prescribes the way in which applications and complaints relating to dismissal can be made. The general rule is set out in s.725 and it provides that a person who has been dismissed must not make an application or complaint of a kind referred to any one of the sections, thereafter specified, in relation to the dismissal if any other of those sections applies. The operation of the provisions in this division apply to applications before the Commission and a Court. The provisions are complex but have the effect of prohibiting a person making applications alleging contravention of the general protection provisions if there is an extant unlawful termination and, in the case of applications in the Commission, if no certificate has been issued under s.778. The same prohibition applies to the making of an unlawful termination application where there is an extant general protections application.
In my opinion, it is apparent from the scheme of the Act dealing with applications involving dismissal which allege contravention of the general protection provisions of the Act and unlawful termination under the Act, that the legislature’s intention is to strictly regulate the Court’s power to deal with such disputes, to avoid a multiplicity of actions being taken by a person who has been dismissed, and where the conduct alleged by the complainant permits, to give preference to the litigation of disputes involving the general protection provisions. In this scheme, it is manifestly clear from the ordinary meaning of the words in s.723, that a person’s entitlement to pursue an unlawful termination only exists to the extent that they would not be entitled, having regard to the conduct that forms the factual substratum of the claim, to pursue an application in a Court alleging contravention of the general protection provisions of the Act. In other words, it is the clear purpose, having regard to the scheme of the Act, that a person is to first exhaust their legal entitlements to pursue contraventions of the general protection provisions in a Court before making an application alleging unlawful termination.
There is no Court of Appeal decision which addresses whether s.723 imposes a statutory bar .
In Maher v Mulgowie Fresh Pty Ltd [2010] FCA 439 (Mulgowie), the applicant had brought an unlawful termination application in the Federal Court. He had filed an application with the Commission pursuant to s.773 of the Act claiming unlawful termination of his employment, a conference was held by the Commission and a certificate pursuant to s.777 had been issued by the Commission. The respondent sought orders for summary dismissal. Justice Collier held that, having regard to the terms of the complaint made by the applicant and in circumstances where the respondent was the national systems employer and the applicant a national systems employee within the meaning of s.14 and s.13 respectively, the applicant was entitled to make an application under the general protection provisions, Part 3-1 of the Act. Consequently, s.723, being “clear and unambiguous” in its terms the applicant’s application had been “improperly commenced” [19]. His Honour held that, whilst the application “in its current form” was hopeless and bound to fail, leave should be granted to the applicant to amend his application pursuant to rule 13(2) of the Federal Court Rules, to allege contravention of s.351 of the Act. His Honour’s reasons for granting leave did not address the question whether the application was within jurisdiction, this not being a question raised before the Court.
In Newman v East Yarra Friendly Society Pty Limited Trading as My Chemist Pharmacy[2011] FCA 1262 (Newman), the factual circumstances were similar to those in Mulgowie. Justice North held that allowing an amendment in the circumstances would be futile as the applicant did not have a certificate under s.369 (the predecessor to s.368) [6] to [7]. His Honour noted that the judgment in Mulgowie did not address the matter determinative in this case; that being “the jurisdictional basis for the application.” [8] His Honour decided to adopt a pragmatic course and adjourned the proceedings before the Federal Court to enable the applicant to make her application alleging contravention of the general protection provisions of the Act and to proceed by way of a conference in the Commission required under s.368 of the Act. Again, his Honour did not address the question whether the application was within jurisdiction, this not being a question raised before the Court.
In Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186, (Pitrau), the factual circumstances were similar to those in Mulgowie and Newman. Federal Magistrate Lucev (as his Honour then was) considered the effect of s.723. At [43] FM Lucev stated:
43.“In the Court’s view there is no room for doubt about the proper meaning and application of s.723 of the FW Act. Section 723 of the FW Act imposes a personal prohibition [113] on a person making 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 meaning:
a. is plain on the face of the statute;
b.was intended by the Commonwealth Parliament, as confirmed by the extracts from the FW Bill Explanatory Memorandum set out above;[114] and
i.is confirmed by relevant case law.”
(footnotes omitted)
At [54] his Honour stated:
54. “Without more the Court would, at this stage, conclude that:
othe application which was made to FWA under s.773 of the FW Act, and the application under s.779 of the FW Act to this Court, were statute barred by reason of s.723 of the FW Act, and this Court is therefore without jurisdiction to determine the application to this Court, and the application is therefore not capable of amendment; and
oeven if the application was not statute barred, and the application were capable of being amended as sought by Ms Pitrau, the Court is without jurisdiction because there is no Section 369 Certificate, and:
§ only FWA can issue a Section 369 Certificate;
§a Section 777 Certificate cannot be amended by this Court to make it a Section 369 Certificate; and
§a Section 777 Certificate will not suffice as it is in relation to a different application and dispute….”.
At [57] his Honour stated, with respect to the decision of the Federal Court in Mulgowie :
“The antecedent question of whether there was in fact an application within jurisdiction to amend was simply not raised by the Federal Court or the parties in Mulgowie”.
In Adam v Apple Pty Ltd [2112] FMCA 881, the Court was again confronted with circumstances similar to the authorities referred to above. The Applicant had made an application in the Fair Work Division of this Court alleging unlawful termination. It was apparent from the details of the claim provided that the Applicant was entitled to allege contravention of the general protection provisions of the Act. A certificate had been issued to the Applicant by the Commission under s.777 of the Act. Federal Magistrate Whelan (as her Honour then was) held that she could not allow the applicant to amend the application to bring it under the provisions of s.371 of the Act as the Court’s jurisdiction under that provision is contingent upon the Applicant having received a certificate under s.369 of the Act.
Her Honour did not adopt the procedure followed in Newman, observing correctly, in my opinion, that were she to do so the applicant would be confronted by the provisions of s.725 and the sections which follow which would make it impossible for the applicant to succeed with the current application before the Court [16] to [18] (see [37] above).
Her Honour dismissed the application for want of jurisdiction thus enabling the applicant to institute, if she so wished, proceedings under s.365 of the Act and to seek an extension of time from the Commission for the lodgement of that application.
In Hill the Court distinguished the decision in Newman on the following basis at [54]:
“54.This case differs from Newman. In Newman, the applicant was merely required to allege the same conduct, but under the correct provision. Mr Hill in this case seeks to bring two different types of action, a general protections court application based on an alleged breach of s 340 (the general protections court application) and an unlawful termination application resulting from an alleged breach of s 773 of the FW Act (‘unlawful termination court application’). “
In Sibert v Tiwi Islands Shire Council [2012] FMCA 1099, the applicant filed an unlawful termination application in this Court and, as was the case in these proceedings, had the benefit of a certificate under (the then) s.369 of the Act. The decision was given ex tempore. His Honour, respectfully, mistakenly stated that in the decision in Mulgowie, it appeared to have been significant that the applicant had the benefit of a certificate made under s.369 of the Act. In fact, the applicant in Mulgowie had a certificate pursuant to s.777 of the Act (see [40]). His Honour referred to the decision of Lucev FM in Pitrau stating that he did not think it was necessary for him to reconcile the two decisions because, “if the court lacks jurisdiction then it could not allow the amendment and if the court has jurisdiction it should not allow the amendment.” [9] The reason His Honour gave for not allowing the amendments was that the proceedings would be statute barred by the effluxion of time and that exercising the Court’s discretion in this way would, effectively, circumvent that issue. [9]
In Reeve v Ramsay Health Care Australia Pty Ltd [2013] FCA 499 (Reeve), Gilmour J was dealing with an application for leave to appeal a summary judgment entered into for the respondent. In the course of considering whether he should grant leave to appeal his Honour considered the effect of s.723 of the Act. His Honour reasoned as follows [42] to [44], [46]:
“The s 723 bar
42. Significantly, and fatal to the applicant’s substantive application, as indeed it is to her present application for leave, is the effect of s.723 FW Act.
43. As the primary judge correctly stated at [79]-[81]:
[79] Further, Commissioner Cloghan found that s 723 of the FW Act provided a statutory bar to the maintenance of the unlawful termination application that [the applicant] wished to maintain, having already lodged a general protections application which had been dismissed.
[80] It is important to note that when the matter went on appeal to the Full Bench, it was the s 723 bar point that primary resulted in the Full Bench dismissing the appeal. It mentioned more as an aside that Commissioner Cloghan’s considerations of the exceptional circumstances grounds was also appropriate.
[81] In these circumstances, the s 723 bar consideration provides a substantial reason why the unlawful termination application of [the applicant] could not proceed at all, regardless of what exceptional circumstances she may have been able to show. For that reason alone, the summary judgment application should succeed, because there is absolutely no efficacy or utility in requiring either the Full Bench or a Commissioner of FWA to reconsider the exceptional circumstances considerations if the unlawful termination application has little or no prospect of success because of the s 723 bar.
44.This statutory bar defeats every other complaint raised by the applicant in her draft grounds of appeal…..”,
46. ….These are no mere “technicalities”. They form a well-considered regime designed principally to prevent a multiplicity of proceedings in respect of the same subject matter.”
In Beggs v Login Systems Pty Ltd [2013] FCCA 526 (Beggs), the circumstances were that the applicant had filed an unlawful termination application in the Commission, in circumstances where, because of s.723 of the Act, the applicant ought to have filed an application alleging contraventions of the general protection provisions of the Act. Recognising this error, the applicant sought orders from the Court amending the application to the Commission or an adjournment to enable the applicant to file and serve the appropriate application in the Commission. Her Honour reviewed the authorities, correctly observing that there were yet no decisions on appeal in the Federal Court of Australia and that she was not bound by single decisions of the Federal Court. Her Honour stated that that in the interests of comity she ought follow, Newman (being the most recent decision), as urged by the applicant unless she was satisfied it was plainly wrong or there was another more recent authority to the contrary that applied to the present case. Her Honour decided that the decision in Pitrau was the most recent and consequently she ought to follow that decision. Her Honour made an order dismissing the applicant’s application.
It seems to me that other than the decisions in Reeve, in Mulgowie, Newman and Hill were not required to by the parties nor did they address the question whether in fact there was an application within jurisdiction. Although the decision in Reeve concerned an application for leave to appeal, I am satisfied that it is the most recent Federal Court judgment which specifically addresses the effect of s.723.
Consequently, in the interest of comity, I would follow the reasoning of Justice Gilmour in Reeve that s.723 is a statutory bar. Accordingly, I am satisfied that the Court has no jurisdiction to entertain the Applicant’s application alleging unlawful termination. It follows, therefore, that her application made orally that the Court amend her application so that it is a general protections application is not one made within jurisdiction.
It will be apparent, therefore, that her application has no reasonable prospects of success. Consequently, I would summarily dismiss her application filed on 21 April 2015 on the basis that there are no reasonable prospects of success for want of jurisdiction.
Costs application
Section 570 of the Act which provides:
“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) ………”
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.”In Rentuza v Westside Auto Wholesale[2009] FMCA 1022 (“Rentuza”) Lucev FM (as His Honour then was) considered the issue of whether an unreasonable act or omission had caused a party to incur costs for the purposes of s.570(2)(b) of the Act.
At paragraphs [26] to [28] in Rentuza His Honour made the following observations, with which I respectfully concur:
“26. For the purposes of s.570(2)(b) two criteria must be fulfilled. They are:
(a) that a party must have engaged in an unreasonable act or omission; and
(b) that the unreasonable act or omission must have caused another party to incur costs in connection with the proceeding.27. Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case.
28.The exercise of the discretion in s.570(2)(b) is not necessarily engaged because:
(a) a party does not conduct litigation efficiently;
(b) a concession is made late;
(c) a party may have acted in a different or timelier fashion;
(d) a party has adopted a genuine but misguided approach.”
[Footnotes from original omitted]The basis for the Respondent’s application for an award of costs against the Applicant under s.570(2)(b) of the Act is that the Applicant omitted to make a general protection court application, instead improperly filing an unlawful termination court application. The Respondent submits that the Applicant failed to take sufficient care in her application. The Respondent argues that it is quite clear from the heading used on the Forms of the Court what the application concerns. Her failure to take any steps to ensure that she was using the correct form and thereby making the correct application was, the respondent argues, unreasonable. The Respondent submits that this omission has caused it costs in filing and prosecuting its application for orders for summary dismissal of the principal application.
The Applicant submits that costs should not be ordered in circumstances where she is self-represented and the Respondent did not raise this as an issue until after the directions proceedings before Registrar Caporale.
I am not satisfied that the Applicants act or omission, in the following circumstances, was unreasonable:
a)I accept the Applicants’ submission that, other than the preparation and the filing of her Form 8 in the Commission, she has represented herself;
b)the statutory provisions which regulate the making of general protection court applications and unlawful termination court applications are complex;
c)the matter proceeded before a Registrar of this Court on 21 May 2015 without any objection made by the Respondent regarding the jurisdiction of the Court;
d)the application for summary dismissal has been made at a very early stage of the proceedings.
Accordingly, I dismissed the Respondent’s application for costs.
Conclusion
For the reasons set out in my judgment I make the orders set out above.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 25 September 2015
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