Mpinda v Fair Work Commission

Case [2022] FCA 1111

FEDERAL COURT OF AUSTRALIA

Mpinda v Fair Work Commission [2022] FCA 1111   

File number: WAD 235 of 2021
Judgment of: FEUTRILL J
Date of judgment: 19 September 2022
Catchwords: PRACTICE AND PROCEDURE – application for unfair dismissal – applications for summary dismissal and stay of proceedings – applicant contends that the second and third respondents entered into a settlement agreement regarding unfair dismissal application without his consent –whether facts in the originating application and supporting material disclose a cause of action – leave to amend originating application and claims for relief – tort of conspiracy – federal jurisdiction – applications dismissed.  
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) Constitution ss 75(v), 76(ii), 77(i)

Fair Work Act 2009 (Cth) ss 394, 397, 398, 399, 399A, 399A(1)(c), 562, 575, 579, 580, 587, 588

Federal Court of Australia Act 1976 (Cth) ss 19, 21, 22, 23, 31A, 31A(2), 31A(3)

Federal Court Rules 2011 (Cth) rr 1.32, 1.34, 1.40, 5.05, 6.01, 8.01(1), 8.03(1), 8.05, 8.05(4), 8.21(1)(a), 16.02(1)(d), 16.02(1)(f), 16.02(4), 16.21(2), 26.01, 26.01(1), 26.01(2)

Judiciary Act 1903 (Cth) ss 39B, 39B(1), 39B(1A)(c)
Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559

Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518

Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570

Fewin Pty Ltd v Prentice [2018] FCA 852

Gallo v Dawson (1988) 82 ALR 401

Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379

Letang v Cooper [1965] 1 QB 232

Morgan v Banning (1999) 20 WAR 474

Noble Investments Pty Ltd v Southern Cross Exploration NL [2008] FCA 1963; (2008) 174 FCR 301

Northern Territory v Mengel (1995) 185 CLR 307

Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311

Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130

Rajski v Powell (1987) 11 NSWLR 522

Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1

Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354

Sirros v Moore [1975] QB 118

Tomlinson v Leveda Inc (1996) 65 IR 178

Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580; (2020) 386 ALR 331

Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602

White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298
Division: Fair Work Division
Registry: Western Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 85
Date of last submissions: 29 July 2022
Dates of hearing: 12 April 2022 and 20 June 2022
Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent: Ms JJ Flinn
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent:

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Details
AGLC
Mpinda v Fair Work Commission [2022] FCA 1111
Case
[2022] FCA 1111
Decision Date

CaseChat Overview and Summary

In the case of Mpinda v Fair Work Commission, the applicant, Mr Mpinda, brought proceedings against the Fair Work Commission, Mr Banovich, and Western Areas, alleging various claims including breach of statutory duty, conspiracy, and damages for breach of retainer. The case involved issues of whether a settlement agreement was made without Mr Mpinda's consent, and if there was a binding settlement agreement, whether it would affect his ability to pursue a claim for unfair dismissal. Additionally, Mr Mpinda sought leave to amend his originating application and claims for relief.

The primary legal issue before the court was whether a binding settlement agreement was made between Mr Mpinda and Western Areas. The court examined the facts of the case and found that while the application for unfair dismissal remained inactive, there was no multiplicity of proceedings concerning the settlement agreement. The court also considered the jurisdictional matters and whether the claims for damages for conspiracy or breach of statutory duty were frivolous or vexatious. The court found that Mr Mpinda's claims for damages for conspiracy or breach of statutory duty were liable to be struck out as frivolous or vexatious, but granted leave to amend the originating application to include specific claims for relief.

The court dismissed the applications for summary dismissal and stay of proceedings against the respondents. It held that the proceedings against the Commission and Western Areas should not be dismissed in whole or in part, and the proceedings against Mr Banovich should not be stayed. The court allowed Mr Mpinda to amend his originating application and make specific claims for relief, including declarations, writ of mandamus, and damages. The court also set a deadline for the filing and serving of the amended originating application and scheduled a case management hearing.

The final orders of the court included staying the proceedings against the first respondent until further order, dismissing the interlocutory applications for summary dismissal and stay of proceedings, granting leave to amend the originating application with specific claims for relief, and setting a deadline for the filing and serving of the amended originating application. The case management hearing was re-listed for a later date. There was no order as to the costs of the applications.

Orders

Orders of the court

1. Until further order the proceedings against the first respondent are stayed and, otherwise, the first respondent’s interlocutory application for summary dismissal of the proceedings against it dated 21 January 2022 is dismissed.

2. The third respondent’s interlocutory application for orders staying the proceedings against the third respondent dated 28 January 2022 is dismissed.

3. The applicant has leave to file and serve an amended originating application by 10 October 2022 in a form that is consistent with the reasons for decision and to make claims for relief of the following nature:

(a) A declaration against the second and third respondents to the effect that no binding agreement was made between the applicant and the second respondent to settle the applicant’s application for unfair dismissal remedy made under s 394 of the Fair Work Act 2009 (Cth) and lodged with the first respondent on 23 September 2016.

(b) A declaration against the first respondent to the effect that the first respondent failed (actually or constructively) to exercise its power under s 397 of the Fair Work Act to conduct a conference or hold a hearing and determine the merits of the applicant’s application for unfair dismissal remedy.

(c) Further and (or) alternatively to para (b), the issue of a writ of mandamus against the first respondent to compel its members to exercise power under s 397 of the Fair Work Act to conduct a conference or hold a hearing and determine the merits of the applicant’s application for unfair dismissal remedy.

(d) In the alternative to paras (a) to (c), damages against the third respondent for breach of his retainer and (or) negligence in making an agreement to settle his application under s 394 of the Fair Work Act, as the applicant’s agent, without the authority or instructions of the applicant to make such an agreement.

(e) In the alternative to paras (a) to (d), a sum in debt or damages against the second respondent for breach of the settlement agreement for failing to pay the amount due under that agreement.

4. There is no order as to the costs of the first respondent’s application and third respondent’s application.

5. The case management hearing is re-listed for not before 9.15 am on 19 October 2022 (AWST).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As matters stand, while the application for unfair dismissal has not been discontinued or dismissed, it remains inactive. The Commission has indicated that Mr Mpinda may take steps to re-activate the proceedings and, if he were to do so, then the future conduct of the matter would be the subject of consideration by the Commission. Further, the issue of whether or not a binding settlement agreement was made between Mr Mpinda and Western Areas is not an issue that has been raised in and is before the Commission for determination. Therefore, there is no multiplicity of proceedings involving that issue at this time.Conclusion I am not satisfied that the proceedings against the Commission and Western Areas should be dismissed in whole or in part. I am also not satisfied that the proceedings against Mr Banovich should be stayed. The principal issue for determination is whether a binding settlement agreement was made between Mr Mpinda and Western Areas. The resolution of that issue is a preliminary step to determining what, if any, relief may be granted against each of the respondents. If there were a binding agreement, Mr Mpinda would not have a reasonable cause of action against the Commission for failing to exercise its power under ss 397 – 399 of the FW Act. However, he would have reasonable causes of action against Mr Banovich and Western Areas. If there were no binding agreement, Mr Mpinda would have a reasonable cause of action against the Commission and grounds for reactivation and determination of the application for unfair dismissal. However, Mr Mpinda would not have a reasonable cause of action against Mr Banovich for breach of the retainer or negligence. Otherwise, Mr Mpinda would be free to pursue his unfair dismissal claim against Western Areas in the Commission. Insofar as the originating application claims relief for damages for conspiracy or breach of statutory duty, it is liable to be struck out as frivolous or vexatious. However, I would grant Mr Mpinda leave to amend his originating application to claim relief of the following nature.(a)A declaration to the effect that no binding agreement was made between Mr Mpinda and Western Areas to settle the application for unfair dismissal.(b)A declaration to the effect that the Commission failed (actually or constructively) to exercise its power under s 397 of the FW Act to conduct a conference or hold a hearing and determine the merits of the application for unfair dismissal.(c)Further and (or) alternatively to para (b), the issue of a writ of mandamus against the Commission to compel the members to exercise its power under s 397 of the FW Act to conduct a conference or hold a hearing and determine the merits of the application for unfair dismissal. (d)In the alternative to paras (a) to (c), damages against Mr Banovich for breach of his retainer and (or) negligence in making an agreement to settle his application under s 394 of the FW Act, as Mr Mpinda’s agent, without the authority or instructions of Mr Mpinda to make such an agreement. (e)In the alternative to paras (a) to (c), a sum in debt or damages against Western Areas for breach of the settlement agreement for failing to pay the amount due under that agreement.

Ratio Decidendi

Legal Principle Established

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