McIntosh v Camilla Australia Pty Ltd
[2018] FCCA 239
•2 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCINTOSH v CAMILLA AUSTRALIA PTY LTD & ANOR | [2018] FCCA 239 |
| Catchwords: INDUSTRIAL LAW – Application for injunction to restrain the respondent from terminating the applicant – where the Court would not have jurisdiction if not for injunctive relief claim – leave to discontinue without adverse costs order. |
| Legislation: Fair Work Act 2009 (Cth), s 570. |
| Cases cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Quinn v Overland [2010] FCA 799 |
| Applicant: | SARAH LOUISE MCINTOSH |
| First Respondent: | CAMILLA AUSTRALIA PTY LTD ACN 135 300 382 |
| Second Respondent: | JANE MCNALLY |
| File Number: | SYG 251 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 2 February 2018 |
| Date of Last Submission: | 2 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Steele |
| Solicitors for the Applicant: | Kennedys Law |
| Counsel for the Respondents: | Mr B Cross |
| Solicitors for the Respondents: | Henry William Lawyers |
ORDERS
Grant leave to the applicant to discontinue these proceedings by the filing of a notice of discontinuance on or before 16 February 2018.
The discontinuance is one in respect of which no order as to costs arises under the rules or otherwise in favour of the respondents.
Directs that if the proceedings are not discontinued the applicant file a statement of claim on or before 9 March 2018.
Directs that if the proceedings are not discontinued the respondents file a response on or before 23 March 2018.
The matter is stood over for directions at 9:30am on 30 March 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 251 of 2018
| SARAH LOUISE MCINTOSH |
Applicant
And
| CAMILLA AUSTRALIA PTY LTD ACN 135 300 382 |
First Respondent
| JANE MCNALLY |
Second Respondent
REASONS FOR JUDGMENT
These proceedings were commenced on 1 February 2018 within this Court’s jurisdiction by reason of the fact that the originating application sought an injunction in relation to the continued employment of the applicant. The proceedings for the injunction were made returnable before this Court as the Duty Judge at 10:15 a.m. today.
The first respondent’s response identified, on its face, a potential dispute relating to the terms of the applicant’s remuneration as well as issues in respect of potential adverse action or a proposed dismissal. The Fair Work Commission is the appropriate specialist entity for disputes in relation to dismissal of employees to be first aired. Whilst this Court has jurisdiction to grant an injunction, the Fair Work Commission, in most cases, has a power to reinstate. The applicant in the present circumstance is not within that reinstatement threshold by reason of the level of her salary.
In those circumstances, of no statutory right to reinstatement and dispute as to terms of remuneration, the observations made by the learned Bromberg J in Quinn v Overland [2010] FCA 799 must be modified in relation to the ease by which one can meet the criteria of exceptional or special circumstances referred to in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 for the granting of an interlocutory injunction to compel the continuation of an employment relationship. These were matters that the Court raised with counsel for the applicant at the outset, and counsel for the applicant was invited to have a short period of adjournment to consider the current proceedings, which was a sensible and appropriate course for counsel for the applicant to take. Counsel for the applicant responsibly informed the Court that, in the circumstances, the application for an injunction would not be pressed, but foreshadowed a desire to seek directions for timetabling of pleadings and also a desire to have overviewed potential investigation in respect of alleged misconduct and matters that might be the subject of steps taken by the respondents.
This Court then raised with the parties that this is a case in which the Court would not have had jurisdiction, but for the identification of the injunctive relief. The Court made clear that it considered the application for the injunctive relief not to be colourable and that the Court’s jurisdiction had been properly invoked. The Court, in those circumstances, has an obligation to bring the dispute between the parties to finality. The jurisdiction having been properly invoked, this Court is in a position, which it conveyed, to determine a dispute between the parties, albeit, the Court observed that dispute appeared to be fluid, and, on one view, premature for determination. The Court would not overview or monitor the ongoing investigative process albeit the final outcome may engage justiciable issues.
It was in those circumstances, the Court indicated that the Court would be likely to permit a discontinuance of the proceedings without any adverse cost consequence under s 570 of the Fair Work Act 2009 (Cth) (“the Act”). The Court identified that it was satisfied that the proceedings were not colourable at the time of their commencement. The principles behind s 570 are that ordinarily there is no adverse costs consequence to an applicant seeking to protect their employment rights, or pursue employment rights under the Act, whether successful or unsuccessful in this Court.
The Court granted a further adjournment, inviting the parties, through their counsel, to seek to explore whether the matter could be resolved, and also in relation to the issue relating to discontinuance. The Court was informed, after a short adjournment, that no resolution had been able to be achieved and counsel for the applicant properly identified the desire for the matter to proceed with the appropriate timetable. The Court foreshadowed that the timetable it would be likely to grant would be one which permitted discontinuance without any adverse consequence within a period of two weeks, and then the making of orders in respect of a timetable for pleadings, and then bringing the matter back for directions.
Mr Cross, counsel for the respondent, opposed the making of an order that permitted the applicant to discontinue without any adverse cost consequence. Mr Cross sought to tender, and have read on the cost issue, an affidavit by his client addressing the injunction issues. Mr Cross sought to identify issues relating to the subject matter of an investigation and asserted that the affidavit was one in respect of which considerable steps had been taken to meet the case brought by the applicant, and that there were issues of candour that the respondent was desirous of exploring.
This Court has a duty to deal with disputes in an expeditious,
cheapinexpensive, and just way. To create a further issue about the injunction by permitting the affidavit to be read on the cost issue would, in essence, be permitting costs to become a substantive issue. It is not appropriate to have a substantive costs issue agitating the substantive merits of the interlocutory injunction application that is not pressed. Pursuing a costs argument on the substantive merits where the applicant is not seeking to pursue the injunction application is generally not permitted as it is contrary to the above duty of the Court.I accept that it is the case that the respondent has incurred substantial costs and been properly and competently represented. I accept the respondent promptly and diligently responded to the application by a detailed affidavit that, no doubt, addresses the respondent’s case to date. I also accept that there are differing views in relation to the circumstances that have given rise to the parties being in the present position, conduct and candour. None of those are matters that rise anywhere near the requirement to justify the making of an order under s 570 by reason of the bringing of this application to date before this Court for injunctive relief.
Accordingly, the Court is satisfied it is appropriate to make the orders that the Court has pronounced.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 22 February 2018
Corrections:
The solicitors for the respondents has been corrected on page 2 of “Orders and Cover Sheet” to reflect the correct name “Henry William Lawyers”.
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