Patel v Trustee for Suren Putter-Lareman Family Trust trading as Toowoomba Youth Mental Health Service

[2023] FedCFamC2G 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Patel v Trustee for Suren Putter-Lareman Family Trust trading as Toowoomba Youth Mental Health Service [2023] FedCFamC2G 392

File number:

BRG 338 of 2022

Judgment of:

JUDGE EGAN

Date of judgment:

12 May 2023

Catchwords:

PRACTICE AND PROCEDURE – Application for amendment of Claim – where Claim erroneously pleaded – where application for summary judgment made by respondent on the basis that the Court lacked jurisdiction to order amendment – where it was appropriate in the circumstances to grant the application to amend – orders accordingly.  

Legislation:

Fair Work Act 2009 (Cth) ss. 351, 365, 368, 368(3), 370, 370(a)(ii), 723, 772, 776, 777

Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 143

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 7.01, 13.13, 30.04(b)

Cases cited:

Forbes v Petbarn Pty Ltd [2018] FCA 256

Maher v Mulgowie Fresh Pty Ltd [2010] FCA 439

Newman v East Yarra Friendly Society Pty Limited trading as My Chemist Pharmacy [2011] FCA 1262

Division:

Division 2 General Federal Law

Number of paragraphs:

34

Date of last submission/s:

11 May 2023

Date of hearing:

11 May 2023

Place:

Brisbane

Solicitor for the Applicant:

Mr Sameer - Aden Lawyers

Solicitor for the Respondent:

Mr Trembath - Creevey Horrell Lawyers

ORDERS

BRG 338 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MADDISON JADE AILSA PATEL

Applicant

AND:

TRUSTEE FOR SUREN PUTTER-LAREMAN FAMILY TRUST TRADING AS TOOWOOMBA YOUTH MENTAL HEALTH SERVICE

Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	12 May 2023

IT IS ORDERED THAT:

1.The Application in a Proceeding filed on behalf of the Respondent on 9 November 2022 be dismissed.

2.The Applicant have leave to file and serve an Amended Statement of Claim in a form consonant with the Court’s Reasons for Judgment published today.

3.The Applicant pay half of the Respondent’s costs of and incidental to the Application to Amend filed on behalf of the Applicant on 29 September 2022 and the Application in a Proceeding seeking summary dismissal of the application filed on behalf of the Respondent on 9 November 2022, such costs to be agreed, or failing agreement, to be taxed pursuant to r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Egan

Introduction

1. The applicant commenced employment with the respondent on or about 4 June 2021 in an administrative role. The respondent carried on the business of the provision of psychiatric services specialising in child and adolescent mental health.

2. The applicant claimed that her employment with the respondent was terminated on or about 27 May 2022. The applicant also claimed that there was no lawful basis for the termination of her employment.

3. After the termination of her employment, the applicant applied to the Fair Work Commission (‘FWC’) pursuant to the provisions of s. 365 of the Fair Work Act 2009 (Cth) (‘FWA’) for it to deal with the applicant’s dismissal dispute.

4. On 28 July 2022, the FWC conducted a conciliation conference.

5. On 1 August 2022, a certificate was issued by the FWC under s. 368 of the FWA. That certificate confirmed that pursuant to s. 368(3) of the FWA, the FWC was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful. The Note at the bottom of the Certificate recited that the applicant had 14 days within which to commence a general provisions Court application.

6. A person was not entitled to make a general protections Court application in relation to an unresolved dismissal dispute unless the provisions of s. 370 of the FWA had been satisfied. Section 370 of the FWA relevantly provided as follows:

   “370 Taking a dismissal dispute to court

   A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

   (a)       both of the following apply:

   (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

   (ii)  the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

   (b) the general protections court application includes an application for an interim injunction.

   Note 1:       Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

   Note 2:       For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

7. The applicant, by her lawyers, filed an application invoking this Court’s jurisdiction under the provisions of the FWA on 12 August 2022. That application was filed within the 14 day time limit as provided for under s. 370(a)(ii) of the FWA, a matter which was conceded by the lawyer who appeared on behalf of the respondent at the hearing before the Court. It was further conceded that the issuance of a s. 368 certificate by the FWC was a prerequisite for the applicant to commence any general protections Court application.

8. Under the heading “Grounds of Application” in the application document, it was stated that the grounds of the application were as set out in the Claim filed with the application. It is appropriate that such claim be reproduced in its entirety as follows:

   ...

9. Of that Claim document, the following matters were of note:

   (a)The claim was purportedly made by the filing of a Form 3 which was the form appropriate for the making of a claim for unlawful termination of employment pursuant to the provisions of s. 772 of Part 6–4 of the FWA, as opposed to the bringing of a claim pursuant to the provisions of s. 351 of Part 3-1 of the FWA.

   (b)By paragraphs 14 – 16 inclusive of Attachment “A” to the Form 3, the applicant’s lawyers had clearly pleaded that the applicant was making a general protections claim pursuant to the provisions of s. 351 of the FWA.

   (c)By paragraphs 17 and 18 of Attachment “A” to the Form 3, the applicant’s lawyers had also pleaded that the applicant was making a claim for unlawful dismissal pursuant to the provisions of s. 772 of the FWA.

   (d)By paragraph 19(d) of Attachment “A” to the Form 3, it was alleged that the respondent had breached the provisions of both s. 351 and 772 of the FWA.

   (e)A copy of the Section 368 Certificate formed part of Attachment “A”

10. The applicant’s lawyers mistakenly filed the Claim as a Form 3 because the provisions of s. 723 of the FWA prohibited the making of an unlawful termination application in relation to certain alleged conduct on the part of an employer if the applicant was entitled to make a general protections court application in relation to the same conduct. A general protections application was required to be made under a Form 2 document which expressly provided on its face that it was the form appropriate for a claim “ … alleging dismissal in contravention of a general protection” as provided for under r. 30.04(b) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (‘the Rules’).   

11. There is no question that insofar as the Claim as filed pleaded a cause of action pursuant to s. 351 of the FWA, such claim, albeit contained in a Form 3 rather than a Form 2, was soundly based. The Claim had been filed within time after the requisite s. 368 Certificate had been issued. The error on the part of the lawyers was to include in the claim an impermissible claim under s. 772 of the FWA.

    Relevant Events After Filing of Application and Claim

12. On 8 September 2022, the respondent’s lawyers sent an email to the lawyers for the applicant: [1]

    (a)Noting that the applicant’s application to the FWC dated 16 June 2022 was a general protections claim under Part 3-1 of the FWA.

    (b)Noting that the application filed in the Court was filed with a Form 3 alleging unlawful termination of employment.

    (c)Asking for conformation that the applicant’s claim was for unlawful termination “ … so that our client can respond appropriately.” 

    [1]           Annexure DJC – 01 to the affidavit of Daniel Creevey filed on 9 November 2022.

13. On 9 September 2022, the applicant’s lawyers sent an email to the respondent’s lawyers stating that the applicant’s claim was for unlawful termination as particularised in the Form 3 filed with the application. [2]

    [2]           Annexure DJC – 02 to the Creevey affidavit.

14. On 12 September 2022, the respondents filed a response which relevantly provided as follows:

    “Further orders sought by respondent/s

    1.Pursuant to rule 13.10 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021, the proceeding be struck out as having no reasonable prospects of success, as this Court does not have jurisdiction to make the orders sought; and

    2.The applicant pay the respondent's costs under s 570(2)(b) of the Fair Work Act 2009 (Cth) (the Act).

    Grounds of opposition or further orders

    1.The Applicant is unable to make the application pursuant to s 723 of the Act.

    3.The Respondent seeks that the Applicant pay costs pursuant to s 570(2)(b) of the Act as the Applicant's unreasonable act of filing the application has resulted in the incurring of such costs.”

15. On 14 September 2022, the applicant’s lawyers sent an email to the respondent’s lawyers which provided as follows: [3]

    [3]           Annexure DJC – 03 to the Creevey affidavit.

    “Dear Colleagues

    We refer to the above matter and your correspondence below dated 13 September 2022.

    Due to an oversight, Form 3 was filed instead of Form 2.

    Please confirm if you consent to Form 3 being withdrawn and Form 2 being filed instead.

    The substance/contents of the Form will be the same.

    Kind Regards

    Yazdhan Sameer

    Solicitor”

16. On 19 September 2022, the respondent’s lawyers sent an email to the applicant’s lawyers which provided as follows: [4]

    “We refer to your email dated 14 September 2022.

    Concerning the proposed withdrawal of the filed Form 3 - Claim under the Fair Work Act 2009 alleging unlawful termination of employment and filing of a Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, we note that section 371(2) of Fair Work Act 2009 (Cth) states "a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued'.

    The certificate under section 368 in this matter was issued on 1 August 2022.

    We look forward to hearing from you as to how your client intends to proceed.”

    [4]           Annexure DJC – 04 to the Creevey affidavit.

17. On 19 September 2022, in response to the respondent’s lawyer’s earlier letter of the same date, the applicant’s lawyers sent an email to the respondent’s lawyers which provided as follows: [5]

    “Dear Colleagues

    We refer to your correspondence below of even date.

    We intend to seek an amendment of the claim to reflect Form 2 instead of Form 3.

    Please advise if you consent to this course.”

    [5]           Annexure DJC – 05 to the Creevey affidavit.

18. On 29 September 2022, the lawyers for the respondent sent an email to the applicant’s lawyers which provided as follows: [6]

    “We refer to your email dated 19 September 2022.

    Our client instructs that they do not consent to the sought amendment of the filed Form 3 - Claim under the Fair Work Act 2009 alleging unlawful termination of employment.

    As provided within Forde v Wrays Ptd Ltd [2019] FCCA 1703, attached for your convenience, a matter of similar circumstance where an erroneous form was filed by the applicant for an unlawful termination claim rather than general protection, Street J found the Court was bound to prior findings that it has no jurisdiction to grant leave to amend the application subsequent to the provisions of section 723 of the Fair Work Act 2009 (Cth) and that the application be summarily dismissed. This was because the proceedings were "doomed to failure ... because they have no reasonable prospect of success, given the principles identified as to the proper construction of s 723 of the Act binding upon this Court".”

    [6]           Annexure DJC – 06 to the Creevey affidavit.

19. On 29 September 2022, the applicant’s lawyers filed an application in a proceeding on behalf of the applicant which was accepted for filing on 25 October 2022. The applicant sought the following order:

    “1. The Court allow the Applicant to amend the Claim (Form 3 filed on 12 August 2022) in this proceeding in accordance with Rule 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 in the form of exhibit AYS-1 to the affidavit of Ahmed Yazdhan Sameer sworn 24 October 2022.”

20. At the same time of lodgement and filing as the application in a proceeding, the lawyers for the applicant filed an affidavit of Mr Sameer, the applicant’s lawyer, which by paragraph 7 acknowledged that due to an “administrative oversight” a Form 3 alleging unlawful termination of employment had been filed instead of a Form 2 alleging dismissal in contravention of general protection. Annexure AYS – 1 to Mr Sameer’s affidavit was the proposed amendment in Form 2. It is appropriate that such proposed Amended Claim (‘PAC’) be reproduced in its entirety as follows:

    …       

21. Of that PAC document the following matters are of note:

    (a)The heading of the document has been changed to reflect a general protections claim made in Form 2.

    (b)Paragraph 11 of Part B made reference to “termination” rather than “dismissal” as was provided for under Form 2.

    (c)Paragraph 28 of Part I included a reference to “s. 777” rather than “s. 368” as was provided for under Form 2.

    (d)Notwithstanding that Mr Sameer had indicated in correspondence with the respondent’s lawyers that the applicant’s claim was a general protections claim under s. 351 of the FWA and not an unlawful termination claim under s. 772 of the FWA, the PAC had nonetheless erroneously included in paragraph 17, 18 and 19(d) a claim under s. 772 of the FWA.

    (e)The s. 368 certificate did not form part of Attachment “A” to the PAC.

22. On 9 November 2022, the respondent’s lawyers filed an application in a proceeding which sought the following orders:

    “1. That pursuant to section 143 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth) and rule 13.13 of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the application filed 12 August 2022 be summarily dismissed.

    2.That the Respondent pay the Applicant’s costs.”

    Submissions as to the Court’s Jurisdiction

23. It was submitted on behalf of the respondent that because the Claim as filed had been characterised as an unlawful termination of employment claim made in a Form 3, and because the applicant’s lawyers had said in correspondence that such was the applicant’s claim, the Court ought to treat the application as invalid and as having been made without any lawful justification, with the result being that the Court had no jurisdiction to entertain an application for amendment of the Claim as filed. The Court finds no merit in such submission.

24. In the first email from the respondent’s lawyers to the applicant’s lawyers sent on 8 September 2022, the respondent’s lawyers acknowledged that the application made by the applicant to the FWC on 16 June 2022 was a general protections claim. So much was obvious by reason of the issuance by the FWC on 1 August 2022 of a s. 368 Certificate which was only issued in respect of general protection claims. A certificate under s. 777 of the FWA was never issued, or sought to be issued, because no unlawful termination claim was ever made to the FWC.

25. The applicant has sought leave to amend the claim pursuant to the provisions of r. 7.01 of the Rules. That rule relevantly provided as follows:

    “Rule 7.01 – Power to amend

    (1)At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.

    (2)Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started”

26. The respondent has sought summary dismissal of the applicant’s claim on the ground that the applicant’s claim was doomed to failure and that it had no reasonable prospect of success. The respondent relied upon the provisions of s. 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r. 13.13 of the Rules which respectively provide as follows:

    “Section 143 – Summary judgment

    (1) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)the first party is prosecuting the proceeding or that part of the proceeding; and

    (b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

    (2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)the first party is defending the proceeding or that part of the proceeding; and

    (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

    (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

    (a)  hopeless; or

    (b)  bound to fail;

    for it to have no reasonable prospect of success.

    (4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

    (5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975 .

    Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 45A of that Act.

    …

    Rule 13.13 – Disposal by summary dismissal

    The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

    (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

    (b)       the proceeding or claim for relief is frivolous or vexatious; or

    (c)       the proceeding or claim for relief is an abuse of the process of the Court.”

1. The Court finds that the lawyers for the respondent ought to have well appreciated:

   (a)That the applicant’s claim was always a general protections claim.

   (b)That the filing of a Form 3 and the inclusion in that Form 3 of a claim for unlawful termination under s. 772 of the FWA were obviously errors having regard to the fact that:

   (i)The applicant’s claim made to the FWC was a general protections claim.

   (ii)The s. 368 Certificate attached to Annexure “A” to the Claim signified the applicant’s reliance upon a general protections claim rather than an unlawful termination claim, consistently with the provisions of s. 370(a)(i) of the FWA.

   (c)That the applicant’s lawyers had acknowledged their error.

2. Applications for leave to amend in analogous circumstances in Federal Court proceedings have been either granted or adjourned so as to allow an applicant to proceed with a claim notwithstanding that s. 777 certificates were issued to them rather than certificates under s. 368 as was the case here. [7]

   [7]           See Maher v Mulgowie Fresh Pty Ltd [2010] FCA 439 and Newman v East Yarra Friendly Society            Pty Limited trading as My Chemist Pharmacy [2011] FCA 1262.

3. It was submitted on behalf of the respondent that the Court should follow the decision of Charlesworth J in Forbes v Petbarn Pty Ltd [2018] FCA 256. That decision, however, was clearly distinguishable from the present matter. In Forbes, the applicant had made an application to the FWC pursuant to s. 772 of the FWA in circumstances where the FWC found that the applicant could have made a general provisions application to it. When dealing with the circumstances surrounding the issue to the applicant in that matter of a certificate pursuant to s. 776 of the FWA, notwithstanding that the FWC found that the applicant could and should have made a general provisions application to it, Charlesworth J at [23] – [32] said as follows:

   [23]Petbarn took a jurisdictional objection to the First FWC Application. It submitted that Ms Forbes was entitled to make a general protections court application and that she was, accordingly, not entitled to make an application to the FWC under s 773 of the FW Act to deal with the dispute.

   [24]The FWC upheld Petbarn’s objection. In doing so, it rejected Ms Forbes’ contention that she was unable to make a general protections claim because she had not completed the minimum period of employment specified in s 383 of the FW Act. The FWC determined, correctly, that Ms Forbes’ submissions were misconceived because the minimum employment provision applied only to applications for relief in respect of unfair dismissal commenced under Pt 3-2 of the FW Act and not to general protection claims alleging a contravention of s 772.

   [25] Section 776 of the FW Act provides that if an application is “made under s 773”, the FWC must “deal with the dispute” (other than by arbitration). If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the FWC must issue a certificate to that effect: s 776(3)(a). If the FWC considers that an unlawful termination court application in relation to the dispute would not have reasonable prospects of success, the FWC must advise the parties accordingly.

   [26] Importantly, the issue of a certificate pursuant to s 776 is a necessary precondition to the commencement of an “unlawful termination court application”. So much is provided for by s 778 of the FW Act:

   Taking a dispute to court

   A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:

   (a)       both of the following apply:

   (i)the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;

   (ii)the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

   (b)the unlawful termination court application includes an application for an interim injunction.

   [27]Notwithstanding its finding that Ms Forbes was not entitled to make an application under s 773 of the FW Act, the FWC purported to “deal with the dispute” between Ms Forbes and Petbarn in accordance with s 776. In reasons given to the parties, the presiding Commissioner stated (Forbes v Petbarn Pty Ltd [2016] FWC 2688 at [8] – [9]):

   8.I am unable to accept the submission that Ms Forbes is not entitled to make a general protections dispute application pursuant to s 365 of the Act.

   9.I am satisfied that this matter will not be resolved by further conferences and will issue a certificate to that effect. I advise the parties that in my opinion the application does not have a reasonable prospect of success for the reasons detailed above.

   [28]The “reasons detailed above” explained why Ms Forbes was not entitled to apply to the FWC to deal with an unlawful termination dispute. The Commissioner then issued, or purported to issue, a certificate pursuant to s 776 of the FW Act dated 28 April 2016 (the s 776 Certificate). Relevantly, the s 776 Certificate states:

   An application pursuant to s.773 of the Fair Work Act 2009 (the Act) was made by Ms Marie Forbes alleging she was dismissed by Petbarn Pty Ltd T/A Petbarn in contravention of s.772(1) of the Act.

   The Fair Work Commission conducted a conference to deal with the dispute on 28 April 2016.

   Pursuant to s.776 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

   [29] At the foot of the s 776 Certificate appears the following notice:

   IMPORTANT NOTE:

   The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order, unless the court extends the time for making such an application. For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both of the parties. This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application.

   (Emphasis added)

   [30]On the day following the issue of the s 776 Certificate, Ms Forbes made a general protections application involving dismissal to the FWC pursuant to s 365 of the FW Act. I will refer to it as the Second FWC Application. Where such an application is made, the FWCmust deal with the dispute (other than by arbitration): s 368. If satisfied that all reasonable attempts to resolve the dispute have been or are unlikely to be successful, the FWC must issue a certificate to that effect: s 368(3)(a). Section 370 of the FW Act provides that a person who is entitled to apply under s 365 for the FWC to deal with such a dispute must not make a general protections court application in relation to the dispute unless:

   (1) the FWC has issued a certificate under s 368(3)(a); and

   (2) the Court application is made within 14 days after the issue of the certificate or within such period as the Court allows.

   [31]Ms Forbes commenced proceedings in the FCCA on 12 May 2016. As originally filed, the originating application took the form of a “Claim under the Fair Work Act 2009 alleging contravention of a general protection”. The application was commenced, or purportedly commenced, pursuant to s 351 of the FW Act. At that time, however, the FWC had not dealt with the Second FWC Application. The Second FWC Application was ultimately withdrawn by Ms Forbes on 1 July 2016.

   [32]In these proceedings, Ms Forbes submits that by commencing the FCCA proceedings on 12 May 2016 as she did, she was complying with the requirements as stated in the “important notice” set out at the base of the s 776 Certificate. Given the content of that notice it is hardly surprising that Ms Forbes commenced a general protections court application within 14 days of the issue of the s 776 Certificate: the notice asserted that Ms Forbes should (and therefore could) commence such an application within that time frame.”

4. At [64] – [69] of His Honour’s reasons, Charlesworth J set out his findings as follows:

   [64] As has been made clear, Ms Forbes was at all times a person entitled to make a general protections application to the FWC. Accordingly, she was not entitled to make an application pursuant to s 773 of the FW Act for the FWC to deal with the dispute. Nor could she make an unlawful termination court application: s 778 of the FW Act.

   [65]The powers and obligations of the FWC to deal with a dispute pursuant to s 776 of the FW Act never arose. It was, of course, necessary for the FWC to determine whether it had before it a valid application under s 773. However, once it answered that threshold question in the negative, it had no obligation to deal with the dispute under s 776. It had no power to do so and should not have purported to do so. The FWC ought to have declined to deal with the dispute on the basis that neither its authority nor its obligation to do so had been properly enlivened.

   [66]Any certificate purportedly issued in the exercise of the power conferred by s 776(3)(a) of the FW Act must be invalid. It could have no evidentiary effect on the question of whether Ms Forbes was entitled to make an application under s 773 of the FW Act, nor could the issue of the s 776 Certificate in the circumstances have the legal effect of enlivening the jurisdiction of the FCCA to hear and determine the Amended Claim (being an unlawful termination court application between Ms Forbes and Petbarn). The primary judge was incorrect to remark that the FWC “had no power to issue anything other than a s 776 Certificate” because the FWC had no power to issue any certificate at all. Nonetheless, the conclusion of the primary judge that the FCCA had no jurisdiction to determine an unlawful termination court application was undoubtedly correct.

   [67]The erroneous advice given on the face of the s 776 Certificate to the effect that Ms Forbes had 14 days in which to commence a general protections application amounts to an unfortunate distraction. Upon the filing of the Amended Claim, the FCCA no longer had a purported general protections court application before it. It is hardly surprising that Ms Forbes has become confused and distracted both by the issue of the s 776 Certificate and by the serious misstatement of her legal rights and obligations it contained.

   [68]For the purposes of the present applications, there is no respectable argument available to Ms Forbes to the effect she met the requirements of s 778 of the FW Act: Ms Forbes was not a “person who is entitled to apply under section 773 for the FWC to deal with a dispute” and was therefore not entitled to make an unlawful termination court application. Nor can it be reasonably argued that her Amended Claim was anything other than an unlawful termination court application purportedly commenced under s 778 of the FW Act.

   [69]     Accordingly, her appeal cannot succeed against Petbarn.”

5. In the present matter, not only was the applicant entitled to make a general provisions application to the FWC, she was entitled to make a general provisions court application because she satisfied both limbs of s. 370 of the FWA. The erroneous pleading in the Claim of a cause of action under s. 772 of the FWA does not detract from the fact that a valid general provisions claim was nonetheless made.

6. When the error in pleading was brought to the attention of the lawyers for the applicant, timely steps were taken by the applicant’s lawyers to ask for the respondent’s consent to an amendment of the claim to properly plead the general provisions cause of action by the filing of a Form 2. Notwithstanding that the PAC was defective in a number of respects as outlined earlier in these reasons, the Court, in the exercise of its discretion, finds that the application for amendment ought to be granted, save to the extent that any Amended Claim cannot include a claim pursuant to the provisions of s. 772 of the FWA. The consent of the respondent to amend sought by the applicant ought to have been forthcoming at an early time without the necessity for this application to have proceeded in the way it has over such a protracted period.

7. It follows from the Court’s finding that the Application in a Proceeding filed on behalf of the respondent is dismissed.

8. The matter will be listed for directions at a time convenient to the parties for the handing down of judgment and for the making of any consequential submissions.    

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       12 May 2023