FEDERAL COURT OF AUSTRALIA
Maher v Mulgowie Fresh Pty Ltd [2010] FCA 439
Citation: Maher v Mulgowie Fresh Pty Ltd [2010] FCA 439 Parties: JOHN MAHER v MULGOWIE FRESH PTY LTD (ACN 100 928 014) File number: QUD 37 of 2010 Judge: COLLIER J Date of judgment: 10 May 2010 Catchwords: PRACTICE AND PROCEDURE – commencement of proceedings under incorrect provisions of Fair Work Act 2009 (Cth) – application to amend substantive application – application for summary dismissal of substantive application – applicant forklift driver suffered from physical disability – applicant terminated from employment – application of s 723 Fair Work Act 2009 (Cth) – whether application doomed to fail because made under incorrect provisions of the Fair Work Act 2009 (Cth) – consideration of s 31A Federal Court of Australia Act 1976 (Cth) – consideration of O 13 r 2 Federal Court Rules – whether Court has power to order amendment of application to insert correct section of Fair Work Act 2009 (Cth) – whether Court should exercise discretion to grant leave to applicant to amend application Legislation: Fair Work Act 2009 (Cth) Pt 3-1, Pt 6-4, ss 3, 13, 14, 342, 351, 365, 723, 769, 772, 773, 777
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules O13 r 2, O 20 r 5
Explanatory Memorandum, Fair Work Bill 2008 (Cth) paras 1333, 1334, 1342Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 cited Date of hearing: 23 March 2010 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 23 Solicitor for the Applicant: Mr A Tayler of Workers First Australia Pty Ltd Counsel for the Respondent: Ms S Brace Solicitor for the Respondent: Acumen Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 37 of 2010
BETWEEN: JOHN MAHER
Applicant
AND: MULGOWIE FRESH PTY LTD (ACN 100 928 014)
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
10 MAY 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The applicant be granted leave pursuant to Order 13 rule 2 of the Federal Court Rules to amend the form 5 application filed on 15 February 2010 to allege a contravention of section 351 of the Fair Work Act 2009 (Cth).
2.The notice of motion filed 18 March 2010 be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 37 of 2010
BETWEEN: JOHN MAHER
Applicant
AND: MULGOWIE FRESH PTY LTD (ACN 100 928 014)
Respondent
JUDGE:
COLLIER J
DATE:
10 MAY 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
These proceedings concern a notice of motion filed by the respondent, Mulgowie Fresh Pty Ltd (“Mulgowie”), seeking summary dismissal of the substantive application of Mr Maher dated 15 February 2010. In summary, Mulgowie submits that Mr Maher has commenced…
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Details
- Case
- [2010] FCA 439
- Decision Date
CaseChat Overview and Summary
The case of Maher v Mulgowie Fresh Pty Ltd involved a dispute between Mr Maher, a former forklift driver, and his employer, Mulgowie Fresh Pty Ltd. Mr Maher claimed that his employment was terminated due to his physical disability, which he argued contravened the Fair Work Act 2009 (Cth). Mulgowie Fresh Pty Ltd sought summary dismissal of Mr Maher’s application on the basis that he had commenced proceedings under the incorrect provision of the Act. Mr Maher sought an amendment to his application or alternatively sought for the application to proceed as filed. The court was required to decide whether Mr Maher’s application could be amended to reflect the correct legislative provision and whether the court had the power to grant such an amendment.
The Federal Court considered the provisions of the Fair Work Act and the Federal Court Rules to determine whether Mr Maher’s application could be amended. The Court examined section 31A of the Federal Court of Australia Act 1976 (Cth) and Order 13 Rule 2 of the Federal Court Rules, concluding that the Court had the requisite power to order an amendment of the application. The Court also noted the objectives of the Fair Work Act, which include fairness and the prevention of discrimination in the workplace. The Court determined that denying Mr Maher the opportunity to amend his application would be inconsistent with these objectives, especially given that Mr Maher was not legally represented at the initial hearing before Fair Work Australia and had been issued a certificate under section 777 of the Act.
The Court dismissed Mulgowie Fresh Pty Ltd’s notice of motion for summary dismissal and granted Mr Maher leave to amend his application to allege a contravention of section 351 of the Fair Work Act 2009 (Cth). The Court emphasised the importance of fairness and the prevention of discrimination in workplace relations, and found that there was no significant prejudice to Mulgowie Fresh Pty Ltd in allowing the amendment.
ORDERS:
1. The applicant be granted leave pursuant to Order 13 rule 2 of the Federal Court Rules to amend the form 5 application filed on 15 February 2010 to allege a contravention of section 351 of the Fair Work Act 2009 (Cth).
2. The notice of motion filed 18 March 2010 be dismissed.
The Federal Court considered the provisions of the Fair Work Act and the Federal Court Rules to determine whether Mr Maher’s application could be amended. The Court examined section 31A of the Federal Court of Australia Act 1976 (Cth) and Order 13 Rule 2 of the Federal Court Rules, concluding that the Court had the requisite power to order an amendment of the application. The Court also noted the objectives of the Fair Work Act, which include fairness and the prevention of discrimination in the workplace. The Court determined that denying Mr Maher the opportunity to amend his application would be inconsistent with these objectives, especially given that Mr Maher was not legally represented at the initial hearing before Fair Work Australia and had been issued a certificate under section 777 of the Act.
The Court dismissed Mulgowie Fresh Pty Ltd’s notice of motion for summary dismissal and granted Mr Maher leave to amend his application to allege a contravention of section 351 of the Fair Work Act 2009 (Cth). The Court emphasised the importance of fairness and the prevention of discrimination in workplace relations, and found that there was no significant prejudice to Mulgowie Fresh Pty Ltd in allowing the amendment.
ORDERS:
1. The applicant be granted leave pursuant to Order 13 rule 2 of the Federal Court Rules to amend the form 5 application filed on 15 February 2010 to allege a contravention of section 351 of the Fair Work Act 2009 (Cth).
2. The notice of motion filed 18 March 2010 be dismissed.
Orders
Orders of the court
1. The applicant be granted leave pursuant to Order 13 rule 2 of the Federal Court Rules to amend the form 5 application filed on 15 February 2010 to allege a contravention of section 351 of the Fair Work Act 2009 (Cth).
2. The notice of motion filed 18 March 2010 be dismissed.
Note:
Background
Background to the litigation
These proceedings concern a notice of motion filed by the respondent, Mulgowie Fresh Pty Ltd (“Mulgowie”), seeking summary dismissal of the substantive application of Mr Maher dated 15 February 2010. In summary, Mulgowie submits that Mr Maher has commenced proceedings under the wrong provision of the Fair Work Act 2009 (Cth) (“the Act”), that his application cannot be amended, and accordingly Mr Maher’s application is doomed to fail. In turn, Mr Maher seeks an order that his substantive application be amended, or that alternatively the application proceed as filed.BACKGROUND Mr Maher was employed as a forklift driver with Mulgowie on 27 May 2009. His employment was terminated on 19 October 2009. The reason given by Mulgowie for the termination of Mr Maher’s employment was Mr Maher’s unsuitability for that type of work – specifically, that Mr Maher had physical lifting limitations due to a previous injury which made him unable to fulfil his duties safely and without risk of harm. It appears that Mr Maher’s back injury occurred approximately fifteen years ago, and that he had indicated this on his employment application. On 12 November 2009 Mr Maher filed an application with Fair Work Australia pursuant to s 773 of the Act claiming unlawful termination of his employment. Mr Maher claims that he was not legally represented at the hearing before Fair Work Australia but was accompanied by a friend, who was a former solicitor, as a support person. A conciliation conference held by Fair Work Australia on 27 January 2010 did not resolve the issue, and on 1 February 2010 Fair Work Australia issued a certificate pursuant to s 777 of the Act stating that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. Before Fair Work Australia, and in the substantive proceedings in the Court, Mr Maher claims that the termination of his employment was due to his physical disability, in contravention of s 772 of the Act. He seeks reinstatement, compensation and the imposition of a pecuniary penalty on Mulgowie. Following the hearing before Fair Work Australia, Mr Maher engaged solicitors to advise him in the substantive proceedings. On 2 March 2010 his solicitor, Mr Tayler, wrote to the solicitors for the respondents in the following terms:Enclosed by way of service find:1. Application Regarding Unlawful Termination and Claim Alleging Unlawful Termination.Our client was self represented in Fair Work Australia and commenced his application there under s773 of the Fair Work Act 2009 (“FWA”). Consequently he was issued a certificate under s777 and the only application he could bring in Court was the application we have filed. It seems to us that as our client was a National System Employee at the time of his dismissal s723 required that his application should have been started under s.365 alleging a breach of s351.We put you on notice that it is our intention at the appropriate time to seek an order that the claim be allowed to proceed as if the application to FWAV (sic) was brought under s365. Could you please advise your client’s attitude to this proposal. If they do not consent to this proposal the matter may need to be separately listed to resolve that issue.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In this case I see no reason why the Court should not grant leave to Mr Maher to amend his substantive application on the terms he has sought. I form this view because:·The application to amend the application comes very early in this litigation.·There are no case management issues which might persuade the Court to refuse the application for leave to amend, as contemplated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.·I note Ms Brace’s submissions concerning the absence of common law or statutory authority for an order to amend the substantive application as sought by Mr Maher. However I consider that O 13 r 2(7) of the Federal Court Rules confers on this Court power of sufficient breadth to do so.·No prejudice has been demonstrated by Mulgowie should the Court grant Mr Maher leave to amend his substantive application. So, for example:oMulgowie has not identified any costs incurred by it which would be thrown away should leave be granted to Mr Maher to amend his application;oIt appears that no new factual or legal issues would be raised by the amendment to the substantive application, other than the substitution of the statutory basis of the application;oMulgowie has been on notice of Mr Maher’s intentions with respect to seeking leave to amend the substantive application since Mr Tayler’s letter of 2 March 2010.·I note Mr Maher’s claim that he was not legally represented before Fair Work Australia, and fell into error in respect of the legislative basis of his application. I note further that this error was not drawn to his attention by Fair Work Australia, which issued a certificate pursuant to s 777.·It is common ground that Mr Maher is out of time to commence a fresh application before Fair Work Australia. He would be significantly prejudiced should the Court refuse him leave to amend his existing substantive application.·I note that the objectives of the Act include the provision of workplace relations laws that are fair to working Australians (s 3(a)) and which enable fairness and representation at work and the prevention of discrimination (s 3(e)). In my view, and in the apparent absence of prejudice to Mulgowie, it would be inconsistent with the Acts’ objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint.CONCLUSION It follows that Mulgowie’s notice of motion for summary dismissal of Mr Maher’s application be itself dismissed, and that Mr Maher be granted leave to amend his form 5 application to allege a contravention of s 351 of the Act.
Ratio Decidendi
Legal Principle Established
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