Hill v Compass Ten Pty Ltd

Case [2012] FCA 761

FEDERAL COURT OF AUSTRALIA

Hill v Compass Ten Pty Ltd [2012] FCA 761

Citation: Hill v Compass Ten Pty Ltd [2012] FCA 761
Parties: PAUL HILL v COMPASS TEN PTY LTD
File number: NSD 15 of 2012
Judge: COWDROY J
Date of judgment: 17 July 2012
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 365, 369, 539, 540, 725, 772, 773, 777
Federal Court Act 1976 (Cth) s 31A
Federal Court Rules 2011 rr 16.21, 22.01
Youth and Community Services Act 1973 (NSW)
Youth and Community Services Regulation 2010 (NSW)
Cases cited: Cavar v Nursing Australia [2011] FMCA 929
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd
(2011) 211 IR 250
CSR Viridian Limited (formerly Pilkington Australia Limited) v Claveria (2008) 171 FCR 554
Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 75
Newman v East Yarra Friendly Society trading as My Chemist Pharmacy [2011] FCA 1262
Pitrau v Barrick Mining Services [2012] FMCA 186
Poolev Rod Baker & Co (2011) 207 IR 264
Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461
Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347
Date of hearing: 16 July 2012
Date of last submissions: 16 July 2012
Place: Sydney
Division: FAIR WORK DIVISION
Category: No Catchwords
Number of paragraphs: 68
Solicitor for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms L Andelman
Solicitor for the Respondent: Mackellars Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 15 of 2012
BETWEEN:

PAUL HILL
Applicant
AND:

COMPASS TEN PTY LTD
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

17 JULY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be allowed in part.

2.Pursuant to r 16.21 of the Federal Court Rules 2011 the following paragraphs of the Applicant’s Statement of Claim dated 3 April 2012 be struck out:

(a)Paragraphs [6] and [7] in their entirety;

(b)Paragraph [10] partially by deletion of the words ‘because he sent the email alleged in paragraph 6 and further, or in the alternative’

(c)Paragraph [10] partially by deletion of the words ‘relies on ss 360 or 361 or in the alternative’;

(d)Paragraph [12] and [13] in their entirety;

(e)Paragraph [14] in its entirety.

(f)Substitute for paragraph [14]; ‘By reason of the matters alleged in paragraphs 2 and 4 and paragraph 10 as amended the respondent terminated the applicant’s employment in contravention of s.772 of the Act’.

3.No order be made as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 15 of 2012
BETWEEN:

PAUL HILL
Applicant
AND:

COMPASS TEN PTY LTD
Respondent

JUDGE:

COWDROY J

DATE:

17 JULY 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. By an originating application filed 9 January 2012, Mr Paul Hill claims that he was dismissed…

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AGLC
Hill v Compass Ten Pty Ltd [2012] FCA 761
Case
[2012] FCA 761
Decision Date

CaseChat Overview and Summary

The matter of Hill v Compass Ten Pty Ltd involved an application by Mr Hill against Compass Ten Pty Ltd. Mr Hill alleged that his termination was unlawful and that there was a breach of specific provisions under the Fair Work Act 2009 (FW Act). The Federal Circuit Court was tasked with determining whether Mr Hill's application was defective due to the failure to obtain the requisite certificate under s 369 of the FW Act and whether the court had jurisdiction to hear the application. Additionally, the court was required to assess whether Mr Hill's claim should be dismissed summarily due to the absence of a reasonable prospect of success.

The court examined whether the absence of a s 369 certificate constituted a mandatory prerequisite for Mr Hill's general protections court application. The court also assessed whether the content of the emails sent by Mr Hill to the Department constituted a complaint under s 772(1)(e) of the FW Act, a critical element for his claim. Furthermore, the court deliberated on whether Mr Hill's application should be dismissed summarily due to the lack of reasonable prospects of success.

The court ruled that Mr Hill's application was defective as it did not include the necessary s 369 certificate required for a general protections court application. Even if leave were granted to obtain the certificate, s 725 of the FW Act would preclude the court from having jurisdiction to hear such an application while Mr Hill's unlawful termination application was pending. Additionally, the court found that Mr Hill's emails did not constitute a complaint for the purposes of s 772(1)(e) of the FW Act. Consequently, the court determined that Mr Hill's claim had no reasonable prospect of success, leading to the dismissal of the relevant parts of his statement of claim. The court allowed the application in part, striking out specific paragraphs and substituting others, while making no order as to costs.

Orders

Orders of the court

1. The application be allowed in part.

2. Pursuant to r 16.21 of the Federal Court Rules 2011 the following paragraphs of the Applicant’s Statement of Claim dated 3 April 2012 be struck out:

(a) Paragraphs [6] and [7] in their entirety;

(b) Paragraph [10] partially by deletion of the words ‘because he sent the email alleged in paragraph 6 and further, or in the alternative’

(c) Paragraph [10] partially by deletion of the words ‘relies on ss 360 or 361 or in the alternative’;

(d) Paragraph [12] and [13] in their entirety;

(e) Paragraph [14] in its entirety.

(f) Substitute for paragraph [14]; ‘By reason of the matters alleged in paragraphs 2 and 4 and paragraph 10 as amended the respondent terminated the applicant’s employment in contravention of s.772 of the Act’.

3. No order be made as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that as presently constituted, Mr Hill’s application to the Court is defective, since his claim is predicated upon two alleged breaches of the FW Act. Even if the Court were to grant leave to Mr Hill to obtain the correct (i.e. s 369) certificate to pursue his general protections court application, s 725 would preclude the Court from having jurisdiction to hear such application. Therefore, it would be futile for this Court to grant leave to Mr Hill while his unlawful termination court application is pending. Only one proceeding can, by virtue of s 725, be entertained. SUMMARY JUDGMENT The principles relevant to summary judgment have been conveniently set out in the judgment of McKerracher J in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8]–[10]. The Court must be satisfied that the grounds set out in r 26.01 exist before allowing such an application. In the present instance, the relevant provision is r 26.01(1)(a) of the Rules. Whether ‘no reasonable prospect’ is established will depend upon the Court’s assessment of the evidence adduced by both parties. As stated in [20], the Department produced under subpoena four documents. The documents are: an email dated 26 September 2011 with the subject line ‘Staffing levels sunshine lodge’ from Mr Hill to Ms Abdo, who is an employee of the Department; another email of the same date with the subject line ‘Act, regulations and recommendations’ from Mr Hill to Ms Abdo; an email dated 4 October 2011 with the subject line ‘Staffing levels at SL’ from Ms Abdo to Mr Hill and a ‘Monitoring Inspection Report’ which pertained to Sunshine Lodge and was dated 15 October 2011 and prepared by Ms Abdo. In Mr Hill’s statement of claim, he alleges he sent an email to Ms Abdo in early October 2011 with the subject line ‘Staffing Levels at SL (Sunshine Lodge)’ and that Compass Ten dismissed him because he sent such email. The Court notes that the subject line, the date and the parties involved in the emails produced under the subpoena correspond with Mr Hill’s description in the statement of claim of the email he sent. The Court therefore infers that the emails sent by Mr Hill which were produced under the subpoena are those which he refers to in his statement of claim.Was any ‘complaint’ made? The question is whether anything in the emails from Mr Hill to the Department constitute a complaint for the purposes of s 772(1)(e) of the FW Act. The first email, sent at 7:02 pm on Monday 26 September 2011, relevantly states:This mail is about our obligation and our desire to include the residents in our community, they have a right to be included and to participate in their community. This community in my opinion starts in the lodge, this is their home and I believe (and I think I am clearly supported by the department) that they have a right to be involved, indeed when you consider the tedium and boredom of the non working residents, I think it vital to foster any interest’s [sic] they have in their home.[…]I am seriously proposing and seeking your support to employ a number of our residents (protected employment like DSA), we in fact would pay them more than DSA and this would cover all the bases.However, what is the departments [sic] opinion? Can we employ and pay our own residents? I would also like to maintain the gardens, grow seedlings for sale at the local markets with all profits returned directly to the residents. I can pay them to paint the cottages etc, it costs Carolina less that cannot be avoided so there is a commercial benefit but that is not the intention. The intention is to occupy the residents with meaningful paying jobs that benefits [sic] them and the other residents.

Ratio Decidendi

Legal Principle Established

As to Mr Hill’s claim that Compass Ten breached s 772, Mr Busby, solicitor for Compass Ten, avers in his affidavit affirmed 9 July 2012 that the documents produced under the subpoena to the Department do not reveal the existence of any complaint made by Mr Hill to the Department. Consequently, Mr Hill has not proved the essential element of s 772(1)(e). CONSIDERATION The Court will first consider the issue of the failure to obtain a certificate under s 369 and will then consider whether the statement of claim, insofar as it deals with the alleged breach of s 772, should be dismissed summarily.Failure to obtain a s 369 certificate Sections 340 and 341 of the FW Act are located in Part 3-1 of the FW Act. Section 365 of the FW Act states:If:(a)A person has been dismissed; and(b)The person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part [i.e. Part 3-1];The person, or the industrial association, may apply to FWA for FWA to deal with the dispute. At this point, an applicant could make an application to FWA for FWA to hear and attempt to resolve the dispute. If the dispute resolution in FWA was unsuccessful, FWA would ordinarily issue a certificate under s 369 of the FW Act. Such section states:369 Certificate if dispute not resolvedIf FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect. If an applicant received such a certificate, Mr Hill could then bring an action under s 539 of the FW Act. Section 539 allows particular persons to bring an action in relation to a contravention or proposed contravention of a civil remedy provision to a court and seek particular orders from the Court in relation to the alleged contravention. In the present case, for the purposes of s 539 Mr May is a person eligible to bring an action, this Court is an eligible Court to determine such action and the orders sought by Mr May are of the type which under s 545 of the FW Act a court is able to make. To follow the language used in the FW Act, the Mr May’s action alleging a contravention of s 340 of the FW Act will be referred to as a ‘general protections court application’. Although an applicant who alleges a contravention of s 340 of the FW Act may make a general protections court application, s 371 of the FW Act states:371 General protections court applicationsFWA conference to be held before application(1)A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:(a)FWA has issued a certificate under s 369 in relation to the dispute; or(b)The general protections court application includes an application for an interim injunction. Mr Hill has not been issued a certificate issued under s 369. The question now arising is whether s 371 establishes a mandatory prerequisite for general protections court applications such that the Court cannot entertain Mr Hill’s general protections court application without a s 369 certificate.