Martires v Endura Paint Pty Ltd
[2019] FCCA 1470
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTIRES v ENDURA PAINT PTY LTD | [2019] FCCA 1470 |
| Catchwords: PRACTICE AND PROCEDURE – Application for transfer to Small Claims Division – matters to be considered – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), pt.3-1, ss.340, 343, 344, 548, 570 |
| Cases cited: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 |
| Applicant: | EDMUND RICARDO MARTIRES |
| Respondent: | ENDURA PAINT PTY LTD |
| File Number: | PEG 364 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the papers |
| Date of Last Submission: | 7 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Aherns Lawyers |
ORDERS (as made 27 May 2019)
The respondent’s application for a transfer of the proceeding to the Small Claims Division be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 364 of 2018
| EDMUND RICARDO MARTIRES |
Applicant
And
| ENDURA PAINT PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 27 May 2019, the Court made an order dismissing an application for this matter to be transferred to the Small Claims Division of this Court.
What follows are the Court’s reasons for making that order.
Background
The applicant, Edmund Ricardo Martires (“Mr Martires”), filed an application in this Court on 5 July 2018. In his application, Mr Martires alleges the respondent, Endura Paint Pty Ltd (“Endura”), acted in contravention of ss.340, 343 and 344 of the Fair Work Act 2009 (Cth) (the “FW Act”).
Mr Martires opted to make an application using Form 2. That form is appropriate for matters where an applicant pleads that there has been a breach of a General Protection (as per pt.3-1 of the FW Act).
The matter was referred to mediation. Unfortunately, no agreement was reached by the parties.
When the matter returned to this Court on 2 April 2019, the Court proposed programming the matter to final hearing. The matter was one of many on what proved to be a rather lengthy directions list.
Mr Martires is self-represented. By virtue of r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”), Endura is required to have legal representation.
When the matter was called on 2 April 2019, Ms Cheong for the respondent made an oral application for the matter to be transferred to the Small Claims Division. The Court heard brief submissions as to why the respondent was seeking this transfer.
Mr Martires indicated that he did not consent to any proposed transfer to the Small Claims Division. The Court ordered the parties to provide written submissions on this issue and return for further directions on 7 May 2019.
The Court also made standard programming orders for the matter to proceed to a final hearing. It did so because hearings for fair work matters in this Court are currently listed as late as June 2020. Having these orders in place would allow the Court, if an opportunity arose for the matter to be heard earlier, to ensure that the materials on which the parties would rely in a hearing would be filed and served.
The parties filed their submissions in respect of those orders. Because Mr Martires was unrepresented, the Court brought the matter back for further directions on 7 May 2019 to ensure that Mr Martires understood the submissions against him. It also proposed to ask the respondent, represented by Mr Ahern on this occasion, to respond to questions from the Court arising from the submissions.
The Substantive Application
In his claim, Mr Martires alleges that he was dismissed from employment on 7 May 2018 in contravention of ss.340, 343 and 344 of the FW Act. He states:
The respondent dismissed me because I had a workplace right to rest after 6 hours continuous work. A workplace right to always think and practice working safely. A workplace right to issue Safety Violation letters to co-employees and company directors. And I performed those workplace rights which lead to my termination
The compensation Mr Martires seeks is as follows:
$3,000 - Legal and Miscellaneous Fees
$10,000 - Bullying Acts of Unreasonable Work Demands committed by Endura Paint Pty Ltd against Edmund Ricardo Martires
$17,000 - Loss of Income
$30,000 – TOTAL AMOUNT
Mr Martires further sought the imposition of a pecuniary penalty to be paid to him if the contraventions are established.
In an affidavit affirmed 15 July 2018, Mr Martires also claimed that he wanted “Verbal and Written Apologies from the Respondent” and a retraction of the Termination Letter.
Submissions
The respondent submits that the the matter should be moved to the Small Claims Division because:
a)Endura would save a significant amount of money on legal fees because it would not be represented by a lawyer. Rather, the company would be represented by an officer or employee who is authorised by the company;
b)a significant amount of time would be saved as the Small Claims Division is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities;
c)Mr Martires’ case has no prospects of success, for the reasons set out in the Affidavit of Aaron Julius Soos filed on 22 August 2018;
d)the compensation as claimed in the application provides no description, details, particulars, evidence or basis for the amounts sought;
e)the applicant is not represented by a lawyer; hence, the basis for the request for “Legal and Miscellaneous Fees” in the amount of $3,000 is unclear;
f)Mr Martires’ claim for “$17,000 - Loss of Income” is within the Small Claims Division limit of $20,000. This is the only request for compensation that offers some sort of explanation;
g)Endura is not entitled to any costs orders against Mr Martires unless Endura satisfies the Court of any of the matters in s.570(2) of the FW Act;
h)the general inability to obtain a costs order is particularly prejudicial to Endura because it will need to incur substantial legal costs despite the prima facie lack of merit in Mr Martires’ claim and the lack of particulars in the compensation he is seeking; and
i)in the alternative, Endura seeks leave for it to carry on this proceeding otherwise than by a lawyer pursuant to r.9.04 of the FCC Rules.
Mr Martires opposes the application being transferred as:
a)he does not request, nor intend to request, that his case be transferred to the Small Claims Division;
b)Endura’s reason for the matter being moved is that it “wants to save money on legal fees”;
c)Endura is a Proprietary Limited Company whose mother company operates in Canada and which brought Phoenix Paints Pty Ltd (which became the respondent) for thousands of dollars with an existing client base;
d)Endura has the funds to buy a company and the funds to pay legal fees for the continuous operations of the company here in Western Australia. It can thus pay any legal fees that arise in this case;
e)the owner of Endura Co has the financial capability to own and support a multinational company in Canada and Australia. He can thus pay any legal fees;
f)Mr Martires can provide further particulars of the $30,000 he claims as part of his argument during the upcoming hearing;
g)a $30,000 claim is beyond the Small Claims Division threshold and therefore one the Federal Circuit Court of Australia cannot simply transfer to the Small Claims Division;
h)Mr Martires strongly believes that he can prove the matters alleged in the application, including bullying acts committed and still being committed, (alleged) fabricated lies and grave misconduct, and (most importantly) unlawful dismissal in contravention of a General Protection;
i)as stated in the FW Act, Endura will be ordered to pay Mr Martires if he satisfies the Court of any of the matters in s.570(2);
j)it would be prejudicial to Mr Martires if the Court did not allow him to speak to the “hard evidence” of Endura’s bullying acts and his unlawful dismissal;
k)Mr Martires has “hardcopy documents and evidences” and the Court is not bound by the rules of evidence in the Small Claims Division; and
l)Endura is afraid of the “hard evidence” because it will prove grave misconduct.
The Court notes that Mr Martires raised a number of matters that are irrelevant to the current issue. These include a request that the Court admonish Endura. Mr Martires is self-represented and may well believe that the Court should do what he seeks in this regard. However, the Court wishes to make it clear that it has not, and does not intend to, address these submissions as they are irrelevant to the transfer request.
The Small Claims Division
Section 548 of the FW Act states:
Plaintiffs may choose small claims procedure
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2) In small claims proceedings, the court may not award more than:
(a) $20,000; or
(b) if a higher amount is prescribed by the regulations--that higher amount.
Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
…
Division 45.4 of the FCC Rules provides guidance on the jurisdiction and procedure for small claims proceedings. Much of Div.45.4 repeats s.548 of the FW Act.
Consideration
The following matters were all raised by the parties as issue relevant to a transfer request of this sort.
Remedy and Compensation
Issue was taken with the amount of compensation Mr Martires is seeking. The respondent states that the amount of $17,000 for loss of income is the only sum which is actually identifiable. This sum, it was submitted, is within the Small Claims threshold.
Mr Martires also seeks $10,000. The descriptor given to this amount is one which the Court finds to be a more particularised damages claim.
In the Court’s view, these amounts are not unspecified or unparticularised. The amounts are identified and the reason Mr Martires says he is owed these amounts is noted.
Further, it is not uncommon in proceedings in industrial matters generally that liability be determined before any substantive evidence concerning compensation and/or penalty is requested by the Court: Trade Practices Commission v Madad Pty Ltd (1979) 40 FLR 453.
The Court has some reservations as to Mr Martires’ request for “Legal and Miscellaneous Fees”. He is unrepresented and s.570(2) sets a very high bar in relation to the recovery of legal costs.
Leaving aside the Legal Fees, the sum sought by Mr Martires (which the Court accepts as being readily identifiable) is $27,000.
This exceeds the threshold of the Small Claims Division: s.548(2)(a) of the FW Act.
On the basis of the above, the Court is satisfied that the sum sought exceeds the threshold of the Small Claims Division. As such, the matter is not suitable to the small claims jurisdiction.
The Court also notes that Mr Martires seeks a pecuniary penalty. It is plain from s.548(1)(a) of the FW Act that the Small Claims Division is not appropriate where a pecuniary penalty is sought.
The fact that Mr Martires seeks pecuniary relief also weighs against any transfer of this matter to the Small Claims Division.
Legal Representation
As noted, by virtue of r.9.04 of the FCC Rules, Endura is required to be represented by a lawyer in these proceedings. This appears to be of some significance to Endura. Indeed, one of their primary submissions was that their legal costs would be greatly reduced if the matter were heard in the Small Claims Division.
Undoubtedly, Endura’s costs would be reduced if the matter were transferred to the Small Claims Division and this would go a long way towards addressing the Court’s objective of operating informally and avoiding undue expense to all parties.
This submission is, accordingly, afforded some weight.
However, just as incorporation confers many benefits and protections on those connected with the corporation, there are also corresponding burdens. It is recognised that one of those burdens is that a corporation must normally be represented by a lawyer in legal proceedings of this sort: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14].
The Court notes Endura’s reference to s.570 of the FW Act as providing a “general inability” to recover costs. A general inability is not an outright inability. If the merits of the application are as Endura submits, the Court will, of course, entertain an application under s.570.
For the reasons outlined above, this factor or concern is afforded little weight.
Merits of the substantive application
Endura also made submissions to the effect that the Mr Martires’ claim has no reasonable prospect of success. Endura states that the affidavit of Mr Soos confirms this to be the case.
If it is the case that the application has no reasonable prospects of success, an application for summary dismissal ought to have been made under r.13.10 of the FCC Rules.
The Court gives this factor no weight.
Procedure
The Court accepts that the Small Claims Division is a more appropriate forum for those unfamiliar with the legal system as, without leave, a party is not entitled to be represented by a lawyer: r.45.13 of the FCC Rules.
As to s.548(3) of the FW Act (and r.45.11(2) of the FCC Rules) (that section removes any obligation to comply with the rules of evidence and procedure), the Court notes that it would not be precluded from considering the “hard evidences” Mr Martires refers to in his submissions if this matter were transferred to the Small Claims Division .
The purpose of the sub-section and sub-rule is to allow the Court (unassisted by legal representatives) to dispense with often difficult and intricate evidentiary matters. It would, however, still be necessary for Mr Martires to make out his claim on the balance of probabilities and, contrary to what Mr Martires appears to believe, were his matter heard in the Small Claims Division, he could still point out the “hard evidences” he says the Court should consider.
The informal nature of the Small Claims Division weighs in favor of transferring this matter to the Small Claims Division.
Leave to appear by non-lawyer
The Court notes that Endura alternatively requested that there be leave to appear by a non-lawyer for the remainder of these proceedings.
Mr Martires did not appear to address this issue in his submissions and it is unclear whether he agrees to this request.
In the circumstances, and noting the matter is listed for a trial callover on 29 July 2019, the Court will give the parties an opportunity to confer in respect of this alternative application.
If no agreement is reached, the parties can raise the issue at the trial callover for determination. Pursuant to the orders of 2 April 2019, there is liberty to apply. Should Endura wish to pursue the application for leave to appear without a lawyer, they should exercise that right and ask the Court to address that issue at that time.
Conclusion
As indicated, the Court has not expressed a view in relation to the request to appear by a non-lawyer as it is unclear if that application is opposed. While Mr Martires has indicated that Endura can afford a lawyer, he did not say that he did not consent to a non-legal representative. Further, on the materials currently before the Court, the Court is unable to assess the factors relevant to a request if this sort. The Court notes that this issue can be raised again as the matter progresses.
Having weighed the factors for and against transferring this matter to the Small Claims Division, the Court finds that:
a)the matter cannot be transferred to the Small Claims Division as the relief and orders sought are not those available on the face of s.548 of the FW Act; and
b)in any event, the Court is not satisfied that it is appropriate to transfer the matter to the Small Claims Division.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 30 May 2019
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