McShane v Gippsland and East Gippsland Aboriginal Cooperative Limited

[2002] FCA 1591

FEDERAL COURT OF AUSTRALIA

McShane v Gippsland & East Gippsland Aboriginal Cooperative Limited [2002] FCA 1591

GEORGE ROSS MCSHANE  v  GIPPSLAND & EAST GIPPSLAND ABORIGINAL COOPERATIVE LIMITED

V24 of 2002

RYAN J
20 DECEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V24 of 2002

BETWEEN:	GEORGE ROSS MCSHANE Applicant
AND:	GIPPSLAND & EAST GIPPSLAND ABORIGINAL COOPERATIVE LIMITED Respondent
JUDGE:	RYAN J
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The purported application filed on 4 January 2002 be dismissed for want of jurisdiction.

2.There be no order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V24 of 2002

BETWEEN:	GEORGE ROSS MCSHANE Applicant
AND:	GIPPSLAND & EAST GIPPSLAND ABORIGINAL COOPERATIVE LIMITED Respondent

JUDGE:	RYAN J
DATE:	20 DECEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant filed proceedings in this Court on 4 January 2002 alleging that he had been wrongfully dismissed from his employment as Change Manager with the respondent, Gippsland & East Gippsland Aboriginal Cooperative Limited on 14 December 2001.  The matter came before me for directions on 8 March 2002 and 24 May 2002.  In the course of those directions hearings, the respondent contended that the proceedings had not been commenced in the appropriate jurisdiction and should have been commenced in the Australian Industrial Relations Commission (“the Commission”).  I requested the parties to direct written submissions to that issue which could be determined without the need for a further hearing.  The respondent filed its submissions on 30 May 2002, and the submissions by the applicant were filed on 13 June 2002.

2. The applicant in his submissions pointed out that the 21 day limit for filing proceedings in the Commission under s 170CE(7) of the Workplace Relations Act 1996 (Cth) (“the Act”) has now expired, thereby depriving him of any chance of now pursuing any action in the Commission. The applicant’s submissions refer to the fact that I agreed to consider any joint application from the parties to refer this case for conciliation before any further hearing. He then goes on to claim that he relied on representations by Counsel for the respondent that the parties “should be able to come to a satisfactory outcome without recourse to the Courts” and that he should support her proposal to facilitate a joint application for referral of the dispute to conciliation. In effect, he argues that the respondent is estopped from now contending that the Court lacks jurisdiction to determine his claim. The evidence before me does not, at present, permit a finding that the respondent’s Counsel made any representations to the effect alleged. However, I shall proceed on the assumption that those allegations could be made out on further investigation.

3. The applicant puts forward a number of grounds upon which he challenges his dismissal, which seem to fall, broadly, under two sections of the Act: s 170CK(2)(e), related to dismissal for “the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities”; and s 170CM, which requires an employer to give notice of any termination of employment. The applicant also claims that the dispute settlement procedure under the relevant award, the Health Services Union of Australia (Aboriginal Health Services) Award 1992, was not followed.

4. The respondent relies upon s 170CP(5) of the Act as an absolute bar to the jurisdiction of this Court. The sub-section provides;

   “An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 170CK, 170CL, 170CM or 170CN may not be made to a court unless the applicant:

   (a)has received a certificate under subsection 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and

   (b)has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention. “

5. Sub-sections 170CP(1) and (2) of the Act provide;

   “(1)Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK, 170CL and 170CN by his or her employer.

   (2)Subject to subsection (5), an employee may apply under this section to the Court or to a court of competent jurisdiction as defined in section 177A for an order under section 170CR in respect of an alleged contravention of section 170CM by his or her employer.”

6. By s 4 “Court” means the Federal Court of Australia. Essentially a certificate under s 170CF(2) attests that the Commission is satisfied that all reasonable attempts to conciliate a matter have been, or are likely to be, unsuccessful. Holding such a certificate is also required to make an election under s 170CP(5)(b). Needless to say, the applicant has never obtained a certificate under s 170CF(2) as he issued proceedings in this Court, not the Commission. The import of s 170CP(5) is quite clear: an applicant may not bring an application in a court without first having obtained a s 170CF(2) certificate from the Commission. In the absence of a valid application, this Court will lack jurisdiction and be unable to hear the case. I am compelled to conclude that there is such a lack of jurisdiction in this case in the absence of a certificate under s 170CF(2).

7. As pointed out at [2] of these reasons, s 170CE(7A) of the Act now requires an application under subs (2) or subs (4) of that section to be lodged with the Commission within 21 days after the employee is given notice of the decision to terminate his or her employment. Previously it was possible to seek an extension of time for filing under s 170CE(8) of the Act, but that provision was repealed with effect from 30 August 2001, some months before the applicant’s employment was terminated. While subs (8) was still in force it allowed the Commission to “accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so”. The circumstances of the present case, where the applicant has filed within time, but in the wrong jurisdiction, might well have persuaded the Commission to exercise its discretion under s 170CE(8), but the Act in its present form now precludes such an extension of time. Regrettably, it follows that, after 5 January 2002, any application to the Commission would have been out of time and the Commission would have no jurisdiction to entertain it or to issue a certificate under s 170CF(2). Nor can it avail the applicant that the application was filed in this Court mistakenly, but within time. Subsection 170CE(1) stipulates that “an employee whose employment has been terminated by the employer may apply to the Commission …” (emphasis added).  The word  “may” does not give the employee a choice about where to file an application;  it confers only a choice about whether to make an application at all.  If the employee chooses to make an application, subs 170CE(1) is entirely clear that it must be made to the Commission.

8. It is extremely unfortunate that the applicant should be shut out from pursuing any claim because the time has expired during which he could have filed in the Commission.  The allegation that he was misled into believing that his claim was viable is a serious one.  However, the last day on which he could have filed in the Commission was Friday, 4 January 2002, the very day on which he filed in this Court.  It is therefore unlikely in the extreme that he had desisted from filing in the Commission by that date because of something represented to him on behalf of the respondent.  Except in that unlikely event, no estoppel of the kind claimed could arise. 

9. It would simply not have been possible for the applicant to have filed in the Commission any later than 4 January. If he first spoke with Counsel for the respondent after the Commission’s registry closed on 4 January, his argument that he lost an opportunity to file in the Commission because he relied on the representations of the respondent must fail. If he first spoke to Counsel for the Respondent on 5 January or later, the opportunity to file within time in the Commission was already lost and nothing the respondent did could have altered that result. However, there is no evidence before me on which a conclusive determination on that issue could presently be made. The applicant in his submissions has explained that he, without the benefit of legal training or advice, filed his claim in the Registry of the Federal Court in Melbourne believing that the application would be referred to the appropriate person. However, it is not the function of Registry staff to scrutinise every initiating document to ensure that it properly invokes the jurisdiction of the Court. Still less can Registry officers be expected to redirect persons filing such documents to the correct forum or otherwise furnish legal advice to unrepresented applicants. (In any event, the present applicant does not suggest that he received any advice of that kind.) He referred in this context to s 9(3) of the Act which obliges a Registrar or member who becomes aware of an alleged industrial dispute to inform the relevant Presidential Member. However, that sub-section is concerned, as the context makes clear, with Industrial Registrars and members of the Commission, not Registrars and other members of the staff of this Court.

10. Even if the respondent, by its Counsel, had made a representation on 4 January 2002 inducing the applicant to do nothing further, there is no order which this Court could make to preserve the applicant’s right to proceed in the Commission. At best, this Court can make an order precluding the respondent from relying on an argument which would otherwise be available to it, but that cannot confer a jurisdiction upon this Court which it does not have. The jurisdictional issue is now before the Court and must be determined. I have already concluded that this Court has no jurisdiction under the Act in respect of an allegedly unlawful termination unless the Commission has issued a certificate under s 170CF(2). There is, therefore, no order which could be made against the respondent that would be of any assistance to the applicant, even if the respondent’s Counsel were proved to have made the representation alleged. It is deeply regrettable that such a grave consequence should follow from the applicant’s mistake, but that is the intractable result of the legislation in its present form. The applicant reminded me of s 98A of the Act which requires the Commission to perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under the Act. Again it has to be emphasised that it is the Commission, not this Court, on which that obligation is imposed. Moreover, the Commission, in my view, could not disregard or relax, as “unnecessary technicalities” the clear and strict time limits erected in respect of applications under Division 3 of Part VIA of the Act.

11. This reasoning compels the conclusion that the present application filed in this Court must be dismissed for want of jurisdiction.  The applicant in his written submission has suggested that the events which have happened have “denied me the opportunity to avail myself of Justice Ryan’s offer to consider referring the matter for conciliation”.  However, that “offer” was made at a directions hearing on 8 March 2002 without any investigation of the circumstances discussed earlier in these reasons and at a time when the matter before the Court was incurably outside its jurisdiction.

12. The applicant has also contended that the termination of his employment occurred in disregard of a settlement of disputes procedure ordained by the Health Services Union of Australia (Aboriginal Health Services) Award. That may afford the applicant a separate cause of action under s 178 of the Act which would not be affected by the strict time limits imposed by s 170CE(7A). However, as implied earlier in these reasons, it is not the function of this Court to give legal advice to actual or prospective litigants and nothing in these reasons should be taken as suggesting that a viable cause of action other than one afforded by Part VIA Div 3 can be made out by the applicant or would procure for him any tangible benefit.

13. It remains open to the parties to make their own voluntary arrangements for mediation or conciliation of the dispute which still appears, in substance, to subsist between them.  However, it has been necessary to set out the foregoing reasons at the length I have to ensure that any such mediation or conciliation does not proceed under the misapprehension that this Court is presently seised of a matter in which it could make orders in favour of the applicant.  Accordingly, the present purported applications must be dismissed.  The same reasoning makes it doubtful whether there has ever been a proceeding under s 170CP which can attract the discretion to order costs conferred by s 170CS.  In any event, whether or not that section or s 347 is applicable to the present proceedings, I could not be satisfied that the proceedings have been instituted vexatiously or without reasonable cause.  Moreover, the failure of the respondent’s advisers to point out to the applicant, at the earliest available opportunity, that the Court had no jurisdiction to entertain his application, would dispose me to exercise any discretion against awarding costs to the respondent.  In the result, there will be no order as to costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan J.

Associate:

Dated:            20 December 2002

The Applicant was self-represented.
Solicitor for the Respondent:	Prior & Prior
Date of Applicant’s Written Submissions:	13 June 2002
Date of Respondent’s Written Submissions:	30 May 2002
Date of Judgment:	20 December 2002