Knight v Visionstream Australia Pty Ltd

Case [2017] FCA 1513

FEDERAL COURT OF AUSTRALIA

Knight v Visionstream Australia Pty Ltd [2017] FCA 1513

Appeal from: Knight v Visionstream Australia Pty Ltd [2017] FCCA 980
File number: VID 587 of 2017
Judge: O'CALLAGHAN  J
Date of judgment: 13 December 2017
Catchwords: INDUSTRIAL LAW – where applicant made a general protections application to the Fair Work Commission in relation to her dismissal – where Fair Work Commission issued a certificate under s 368(3)(a) of the Fair Work Act 2009 (Cth) naming Visionstream Australia Pty Limited as the respondent, rather than the applicant’s actual employer, Visionstream Pty Ltd – where applicant subsequently sought to substitute Visionstream Pty Ltd as the respondent to the claim – whether s 368 of the Fair Work Act 2009 (Cth) operates so that an application by a dismissed employee to substitute one party for another as a respondent to a general protections application, which the relevant rules of court would otherwise readily allow, must be disallowed when the name of the proposed new respondent is not identical to the name of the party appearing on the certificate issued by the Fair Work Commission under s 368(3)(a)
Legislation:

Fair Work Act 2009 (Cth), ss 365, 368, 369, 370

Federal Circuit Court Rules 2001 (Cth), rr 7.01, 7.03

Cases cited:

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

Rutherford v Hausner (2011) 212 IR 343

Shea v Truenergy Services (No 1) (2012) 204 FCR 456

Date of hearing: 2 November 2017
Registry: Victoria
Division: Fair Work
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 40
Counsel for the Appellant: Mr R A Millar
Solicitor for the Appellant: McDonald Murholme Solicitors
Counsel for the Respondent: Ms R Preston
Solicitor for the Respondent: Piper Alderman

ORDERS

VID 587 of 2017
BETWEEN:

ANNETTE KNIGHT
Appellant
AND: VISIONSTREAM AUSTRALIA PTY LIMITED
Respondent

JUDGE:

O'CALLAGHAN  J

DATE OF ORDER:

13 DECEMBER 2017

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the Federal Circuit Court of Australia on 12 May 2017 in MLG2576/2016 be set aside.

3.The matter be remitted to the Federal Circuit Court of Australia.

4.By 4:30 p.m. on 14 December 2017, the parties file and serve a written submission not exceeding three pages on the appropriate order, if any, to be made in respect of costs.

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


REASONS FOR JUDGMENT

O’CALLAGHAN J:

INTRODUCTION

  1. The principal issue in this appeal is whether s 368 of the Fair Work Act 2009 (Cth) (the FW Act) operates so that an application by a dismissed employee to substitute one party for another as a respondent to a general protections application, which the Rules of Court would otherwise readily allow, must be disallowed when the name of the proposed new respondent is not identical to the name of the party appearing on the certificate provided by the Fair Work Commission (the Commission) certifying that the Commission had been…

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AGLC
Knight v Visionstream Australia Pty Ltd [2017] FCA 1513
Case
[2017] FCA 1513
Decision Date

CaseChat Overview and Summary

The appeal was brought by Ms Knight, an employee who had been dismissed and subsequently made a general protections application to the Fair Work Commission (FWC) against Visionstream Australia Pty Ltd. She sought damages and penalties for her dismissal. Following a conference with the FWC, a certificate was issued naming Visionstream Australia Pty Ltd as the respondent. Ms Knight later realised she had been employed by Visionstream Pty Ltd, not Visionstream Australia Pty Ltd, and sought to amend the proceedings to substitute Visionstream Pty Ltd as the respondent. The Federal Circuit Court of Australia (FCCA) refused the substitution and dismissed the proceeding, holding that section 368 of the Fair Work Act 2009 (FW Act) required the substitution to be disallowed because the proposed new respondent's name did not match the name on the certificate issued by the FWC.

The legal issue before the court was whether section 368 of the FW Act precluded the substitution of one respondent for another in the proceedings, even when the mistake was genuine and not misleading. The court considered that modern rules of court, including rule 7.01(1) of the Federal Circuit Court Rules 2001 (FCCA Rules), permit amendments to the name of a party to substitute one party for another if the mistake was genuine and not misleading. The court found that the mistake in this case was genuine, induced by the letter of termination signed on behalf of Visionstream Australia Pty Ltd, and could not have been misleading as Visionstream Pty Ltd had participated in the FWC hearing without raising any jurisdictional objection.

The court held that section 368 of the FW Act did not alter the position where the mistake was genuine and not misleading. The court found that the primary judge erred in refusing the amendment sought and in dismissing the proceeding. The appeal was allowed, the orders of the FCCA were set aside, and the matter was remitted to the FCCA. The parties were directed to file and serve written submissions on the appropriate order, if any, to be made in respect of costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Federal Circuit Court of Australia on 12 May 2017 in MLG2576/2016 be set aside.

3. The matter be remitted to the Federal Circuit Court of Australia.

4. By 4:30 p.m. on 14 December 2017, the parties file and serve a written submission not exceeding three pages on the appropriate order, if any, to be made in respect of costs.

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

Background

Background to the litigation

The primary judge held that the answer to that question is yes: Knight v Visionstream Australia Pty Limited [2017] FCCA 980. In my view, for reasons set out below, he erred in so deciding.BACKGROUND Ms Knight (the applicant) was employed by Visionstream Pty Ltd as a business systems analyst. She commenced employment on 7 March 2016. On 17 August 2016, by a letter signed by Steve Grabar, on behalf of Visionstream Australia Pty Ltd, her employment was terminated effective immediately. The applicant then made a “General Protection Application Involving Dismissal” to the Commission under s 365 of the FW Act, naming “the business that dismissed [her]” as Visionstream Australia Pty Ltd. She sought damages and the imposition of a penalty in respect of the contraventions alleged in that application. A “Response to general protections application” was filed shortly thereafter on the behalf of Visionstream Pty Ltd as “the organisation responding to the application”. Section 6 of the Response is headed “Jurisdictional Objections” and asks: “Do you have any jurisdictional or other objection(s) to the application?” The form then says: “Objections relate to why the applicant is not eligible to make an application to the Commission”. The question was answered “No”. The Commission conducted a conference to deal with the dispute on 11 November 2016, and subsequently issued a certificate under s 368(3)(a) of the Act dated 21 November 2016 (the certificate). It named “Ms Annette Knight” as the applicant and “Visionstream Australia Pty Limited” as the respondent. Relevantly, it provided as follows:An application pursuant to s 365 of the Fair Work Act 2009 (the Act) was made by Ms Annette Knight alleging she was dismissed by Visionstream Australia Pty Limited in contravention of part 3-1 of the Act.The Fair Work Commission conducted a conference to deal with the dispute on 11 November 2016.Pursuant to s 368 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. The applicant then issued a general protections court application in the Federal Circuit Court of Australia (FCCA) against Visionstream Australia Pty Ltd dated 29 November 2016. Not long after commencing the proceeding, and following correspondence between the parties’ legal representatives, the applicant accepted that she had in fact been employed by Visionstream Pty Ltd. The parties then filed a minute of proposed consent orders requesting that the primary judge make an order on the papers that Visionstream Pty Ltd be substituted as the respondent to the proceeding pursuant to r 7.03 of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). The parties then received an email from the judge’s associate telling them that the primary judge did “not consent to the making of the proposed orders” and that “an appearance [would] be required in Court [on 22 February 2017]”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary judge also dismissed the applicant’s application. He erred in doing so, not only because the respondent did not ask him to, but because, even on his own reasoning, the appropriate order should have been limited to refusing the applicant’s application for substitution of a party. CONCLUSION For those reasons, the appeal will be allowed and the matter remitted to the FCCA. I will hear from the parties on the appropriate order, if any, to be made in respect of costs.

Ratio Decidendi

Legal Principle Established

For the reasons set out below, in my view, the primary judge was wrong to refuse the amendment sought. His Honour was also wrong to dismiss the proceeding.CONSIDERATION There are many reported cases in which some difficulty arises about whether an applicant should be permitted to substitute one respondent for another. Some of the older cases are discussed in detail in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 238-245 (per Dawson J), 249-251 (per Toohey J), 254-259 (per McHugh J). Modern rules of court in all Australian jurisdictions, and in the United Kingdom, permit amendments to the name of a party which have the effect of substituting one party for another, if the mistake was genuine and was not relevantly misleading. The FCCA Rules contain two rules about substituting parties, one that applies when no limitations point arises, the other when it does. Rule 7.01(1) provides: “At any stage in a proceeding, the Court … may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit”. Rule 7.03 applies “if an application in a general federal law proceeding for leave to make an amendment is made after the end of a relevant period of limitation current at the date when the proceeding was started”: FCCA Rules, r 7.03(1). That rule does not apply in this case because no applicable period of limitation has ended. Given the broad terms in which r 7.01 is cast, it cannot be doubted that when an applicant seeks to substitute one respondent for another, the rule is to be “interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description”: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 261 per McHugh J, with whom Brennan and Deane JJ agreed. Thus, here, Visionstream Australia Pty Ltd was identified by the applicant by the “particular description” of it being her employer. She was mistaken about that, but in circumstances where the mistake was induced by the letter of termination (signed on behalf of Visionstream Australia Pty Ltd), where her employer knew that it was the intended respondent, and where the employer participated in the Commission hearing, having also expressly stated that it took no jurisdictional objection (see [7] above), the mistake was obviously genuine and could not possibly have been misleading. It follows that the amendment sought in this case was clearly permitted by r 7.01(1) of the FCCA Rules. The issue that arises is whether s 368 of the FW Act alters that position. It is convenient now to set out the relevant provisions of the FW Act. Section 365 of the FW Act provides:Application for the FWC to deal with a dismissal dispute 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;the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.