Mpinda v Fair Work Commission (No 4)

Case [2025] FCA 519

FEDERAL COURT OF AUSTRALIA

Mpinda v Fair Work Commission (No 4) [2025] FCA 519   

File number: WAD 235 of 2021
Judgment of: FEUTRILL J
Date of judgment: 20 May 2025
Catchwords:

PRACTICE AND PROCEDURE – interlocutory application, in substance, for determination of separate questions and dismissal following determination of questions – hearing in absence of applicant – notice and service of application on applicant

ADMINISTRATIVE LAW– discretion to grant constitutional writs – statutory duty performed after commencement of proceeding – utility of mandamus and declaratory relief – foreseeable consequences for declaratory relief

Legislation:

Fair Work Act 2009 (Cth) ss 394, 397, 399A

Federal Court Act of Australia 1976 (Cth) ss 23, 31A(2), 37M

Federal Court Rules 2011 (Cth) rr 1.32, 1.34, 1.35, 1.40, 5.22, 5.23, 11.01, 17.04, 26.01, 30.01. 30.02, 39.05

Cases cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Mpinda v Fair Work Commission [2022] FCA 1111
Mpinda v Fair Work Commission (No 2) [2024] FCA 692
Mpinda v Fair Work Commission (No 3) [2024] 1179
Viscariello v Legal Profession Conduct Commissioner [2021] SASCFC 24
Division: Fair Work Division
Registry: Western Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 31
Date of hearing: 5 February 2025
Date of last submissions 6 February 2025
Counsel for the Applicant: The Applicant did not appear
Counsel for the First Respondent: Mr S Reeves
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: Ms B Pole
Solicitor for the Second Respondent: Minter Ellison

ORDERS

WAD 235 of 2021
BETWEEN:

CLAUDE MPINDA

Applicant
AND:

FAIR WORK COMMISSION

First Respondent

WESTERN AREAS LTD

Second Respondent

STEFAN BANOVICH

Third Respondent

ORDER MADE BY:

FEUTRILL J

DATE OF ORDER:

20 MAY 2025

THE COURT ORDERS THAT:

1.Except for the declaratory relief granted by paragraph 2 of the orders of the Court made on 11 September 2024, the proceeding against the first respondent and second respondent be dismissed.

2.There be no order as to the costs of the proceeding.

3.The second respondent serve a copy of these orders and the reasons for these orders on the applicant by sending them by email to maurikany@yahoo.fr and by pre-paid ordinary post to his last known residential or business address.

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


REASONS FOR JUDGMENT

FEUTRILL J:

  1. The second respondent (Western Areas) seeks an order, in effect, that the proceeding be dismissed in respect of the remaining relief the applicant (Mr Mpinda) claims because, as a consequence of the declaration and orders the Court made on 11 September 2024 after a trial of separate questions and events that have taken place since that date, there are no ‘live’ issues in the proceeding and the remaining claims for relief are otiose. The order was initially sought in a minute of proposed orders filed on 15 January 2025 and later in an ‘updated’ minute of proposed orders sent by email to my chambers on 21…

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Details
AGLC
Mpinda v Fair Work Commission (No 4) [2025] FCA 519
Case
[2025] FCA 519
Decision Date

CaseChat Overview and Summary

In the Federal Court, Mpinda brought a proceeding against the Fair Work Commission, Western Areas and Mr Banovich, seeking declarations, a writ of mandamus, damages for negligence and breach of contract, and costs. The dispute centres around the Commission's handling of Mpinda's unfair dismissal remedy application and the alleged unauthorised settlement agreement between Mpinda and Western Areas. The court was required to decide whether it should dismiss the remaining claims against the Commission and Western Areas, as well as determine the appropriate costs order. The court examined the utility of the relief sought by Mpinda, particularly in light of the Commission's prior actions and the outcomes of earlier hearings. The court concluded that there was no utility in the relief claimed in paragraphs 1 and 2 of the amended originating application, and thus, it was appropriate to dismiss the remaining claims. The court also considered the procedural fairness of the hearing in the absence of Mpinda and the adequacy of notice and service of the application on him. Ultimately, the court dismissed the proceeding against the Commission and Western Areas, except for the declaratory relief granted on 11 September 2024, and stood over the remaining claims for further directions. Additionally, the court made no order as to the costs of the proceeding.

Orders

Orders of the court

1. Except for the declaratory relief granted by paragraph 2 of the orders of the Court made on 11 September 2024, the proceeding against the first respondent and second respondent be dismissed.

2. There be no order as to the costs of the proceeding.

3. The second respondent serve a copy of these orders and the reasons for these orders on the applicant by sending them by email to maurikany@yahoo.fr and by pre-paid ordinary post to his last known residential or business address.

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

Background

Background to the litigation

For the reasons that follow, the answer to the separate question is yes because there is no utility in the relief claimed in para 1 and para 2 of the amended originating application. Further, in the circumstances, it is appropriate to make an order dismissing the remaining relief claimed in the proceedings.Background to the application On 20 October 2021 Mr Mpinda filed an originating process and an affidavit in support by which he made various allegations against the Commission, Western Areas and third respondent (Mr Banovich). In January 2022 the Commission filed an interlocutory application for summary judgment. Western Areas requested the Court to exercise power on its own motion to dismiss the claim against Western Areas and Mr Banovich filed an interlocutory application for a stay of the claim against him. On 19 September 2022 I made orders dismissing each of these applications, but made an order staying the proceeding against the Commission and gave Mr Mpinda leave to amend his originating application in a form consistent with the reasons for those orders: Mpinda v Fair Work Commission [2022] FCA 1111. On 8 December 2022 Mr Mpinda filed an amended originating application. In that application he sought a declaration against the Commission to the effect that it had failed to exercise its power pursuant to s 397 of the Fair Work Act to conduct a conference or hearing to determine the merits of an application Mr Mpinda had made in the Commission for an unfair dismissal remedy against Western Areas pursuant to s 394 of that Act. Mr Mpinda also sought the issue of a writ of mandamus to compel the Commission to exercise the power to conduct a conference or hold a hearing and determine the merits of his unfair dismissal remedy. In the alternative, Mr Mpinda sought damages against Mr Banovich for alleged negligence in making an unauthorised settlement agreement by which Mr Mpinda’s claim in the Commission was compromised and damages against Western Areas for breach of the terms of that agreement for, in effect, failing to pay him the settlement sum. Mr Mpinda’s claims against the Commission were postulated on the basis that his claim in the Commission had not been compromised by any settlement agreement with Western Areas. The applicant also claimed costs against the respondents. On 8 February 2023 I made orders that certain issues be determined separately from the other issues in the proceeding. Those issues related to the dispute between Mr Mpinda and Western Areas as to the existence of a settlement agreement and the alleged negligence of Mr Banovich for making an unauthorised settlement agreement if such an agreement had been made. On 13 February 2023 the Commission filed a submitting notice but reserved its right to be heard on the question of costs. On 28 June 2024 I made orders by which the separate issues were determined, in effect, against Western Areas and in favour of Mr Banovich: Mpinda v Fair Work Commission (No 2) [2024] FCA 692. Thereafter, on 11 September 2024, I made orders lifting the stay on the claims against the Commission and declaring that Mr Mpinda’s application for an unfair dismissal remedy under s 394 of the Fair Work Act against the second respondent and lodged with the first respondent on 23 September 2016 has not been discontinued or dismissed and that the first respondent has not otherwise exercised power pursuant to s 397 of the Fair Work Act to conduct a conference or hearing to determine the merits of that application. I also made orders dismissing the proceeding against Mr Banovich and standing over the remaining claims for relief in the proceeding for further directions at a case management conference listed for hearing on 5 February 2025: Mpinda v Fair Work Commission (No 3) [2024] 1179. The claims against the Commission and for costs against the Commission and Western Areas were stood over because it was anticipated that, in accordance with the submitting notice that the Commission had filed, it would be unnecessary to formally make a declaration or issue a writ of mandamus because the Commission would act on the declaration to the effect that Mr Mpinda’s application in the Commission had not been compromised.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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