Pham v Cashpita Management Pty Ltd
[2009] FMCA 894
•3 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHAM v CASHPITA MANAGEMENT PTY LTD | [2009] FMCA 894 |
| HUMAN RIGHTS – Application to Court in relation to unlawful discrimination – interim application to join additional respondents – they were not ‘respondents to the terminated complaint’ to HREOC – no jurisdiction to give relief against them – interim application refused – proceedings against company in liquidation permanently stayed. |
| Corporations Act 2001 (Cth), s.471B Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PA(1), 46PO, 46PO(1), 46PO(2) Sex Discrimination Act 1984 (Cth), ss.14, 105 |
| Grigor‑Scott v Jones [2008] FCAFC 14 L v Commonwealth of Australia [2009] FCA 4 Lawrance v The Commonwealth Of Australia & Ors [2006] FMCA 1792 |
| Applicant: | THI NGOAN PHAM |
| Respondent: | CASHPITA MANAGEMENT PTY LTD (ADMINISTRATOR APPOINTED) |
| File Number: | SYG 2527 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 3 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Green |
| Solicitors for the Applicant: | Brydens Law Office |
| Counsel for the Respondent’s Voluntary Administrator: | Mr B Mackay |
| Solicitors for the Respondent’s Voluntary Administrator: | Bartier Perry |
| Counsel for the Proposed Second and Third Respondents: | Mr D Stewart |
| Solicitors for the Proposed Second and Third Respondents: | Argyle Lawyers |
ORDERS
The application in a case filed on 26 June 2009 is refused.
The applicant must pay the costs of Nabil and Adil Magar in relation to that application, fixed in the sum of $1,000.
The principal application is stood over generally and removed from the docket of Smith FM, in accordance with s.471B of the Corporations Act 2001 (Cth).
Costs otherwise reserved.
The parties have liberty to apply for the principal application to be restored to a list by filing an application in a case seeking further directions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2527 of 2008
| THI NGOAN PHAM |
Applicant
And
| CASHPITA MANAGEMENT PTY LTD (ADMINISTRATOR APPOINTED) |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This application has an unfortunate history. It arose out of a complaint by Ms Pham to the Human Rights and Equal Opportunity Commission (“HREOC”), as it was then known, on about 21 February 2008. Ms Pham complained that her employment with Cashpita Management Pty Limited (“Cashpita”) was summarily terminated on about 5 October 2006 when she declined a request by a director of Cashpita, Mr Bill Magar, to return to work during a period of maternity leave which had not expired. She complained that this conduct involved a breach of s.14 of the Sex Discrimination Act 1984 (Cth).
Her complaint to HREOC named two persons as its respondents, the company Cashpita, and “Mr Bill Magar (Director)”. In relation to the latter, she might be perceived as asserting a liability by him under s.105 of the Sex Discrimination Act, as a person who “causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II”, and her factual assertions appear to provide some grounds for that claim.
However, by email on 7 May 2008 from lawyers who were acting for Ms Pham, HREOC was informed:
We have since received instructions from our client to remove Bill Magar from the appropriate form and to proceed with the complaint made against the employer, Cashpita Management Pty Ltd.
A delegate of the President of HREOC decided to terminate the complaint, and did so by notice of termination dated 8 September 2008, on the ground that there was no reasonable prospect of the matter being settled at conciliation. The notice of termination identified only one respondent, “Cashpita Management Pty Ltd”, and the delegate’s letter of explanation noted the withdrawal by Ms Pham of Mr Bill Magar as a respondent. The delegate said:
On 20 May 2008, I granted Ms Pham leave for her to do so pursuant to section 46PA(1) of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOCA).
That section permits HREOC to allow the amendment of a complaint.
It therefore appears clear to me that by the time of the termination of the complaint, Mr Bill Magar was not a respondent to the complaint to HREOC.
The application to this Court was filed on 30 September 2008, which is within the time limit running from the date of the HREOC notice of termination (see s.46PO(2) of the HREOC Act). The matter was listed before me on 3 and 21 November 2008 without an appearance being made by the company, although the application had been duly served at its registered office.
On 25 February 2009, Mr Mark Magar, who said he was a brother of Bill, attended a directions listing, and appeared to have instructions to represent the company. I then gave directions for a timetable leading to a hearing in June 2009.
However, my directions to the company were ignored. It filed nothing, and the mediation which I ordered was vacated when the Court was informed that Cashpita had entered voluntary administration in May 2009.
Further adjournments then ensued while Ms Pham took advice from her solicitors, leading to their filing an interim application seeking to join as additional respondents Messrs Nabil (i.e. ‘Bill’) and Adil Magar. The interim application was filed on 26 June 2009. The proposed additional respondents are now represented by a solicitor, who opposed the interim application at its hearing today.
At the start of the hearing, I was informed by a representative of the liquidator of Cashpita that it has now entered liquidation pursuant to a resolution of creditors, so that a stay on the proceedings against it is in force under s.471B of the Corporations Act 2001 (Cth). This Court does not have jurisdiction to grant leave for the proceedings to continue against Cashpita, and no application to another court has been foreshadowed by Ms Pham. I shall therefore stand the proceedings over generally as against that respondent, giving liberty to apply in the event that it ever emerges from liquidation with assets available to be pursued by Ms Pham. I note that she may have a right to claim in the liquidation as an unsecured creditor, but I give no opinions about that.
At the start of today’s hearing, I drew Ms Pham’s solicitor’s attention to authorities which have addressed the jurisdictional requirements in relation to an application to this Court under the HREOC Act. These are found in s.46PO(1), which provides:
46PO Application to court if complaint is terminated
(1) If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
There is now a clear body of authority that the Court’s jurisdiction is confined to the grant of relief only against “respondents to the terminated complaint”, and that it has no jurisdiction to grant relief against another person, regardless of whether that person may have liability under the Sex Discrimination Act or one of the other pieces of legislation covered by the HREOC Act.
I arrived at this opinion in Lawrance v The Commonwealth Of Australia & Ors [2006] FMCA 1792. My opinion was subsequently followed by my colleagues, and their judgments were upheld on appeal (see, for example, L v Commonwealth of Australia [2009] FCA 4). More importantly, in Grigor‑Scott v Jones [2008] FCAFC 14, a Full Court thoroughly considered the issue, and concluded that no proceedings could be brought under s.46PO against a person who was not a respondent to a terminated complaint.
Ms Pham’s solicitor fairly indicated that he was unable to identify an argument to distinguish Grigor‑Scott, and I consider that I am bound to apply it in the present case. It appears to me clear on the evidence I have referred to above that, although Mr Bill Magar was originally a respondent to Ms Pham’s complaint to HREOC, he had ceased to be so in relation to the “terminated complaint”. I therefore consider that the Court would have no jurisdiction in the present application to grant relief against him, were he to be joined as an additional respondent. For that reason, as in Lawrance (supra), it would be inappropriate to join him, nor for the proceedings to continue further in relation to possible claims against him. The situation is even clearer in relation to his brother, who was never a respondent to a complaint.
I shall therefore refuse the present application in the case, and make the orders I have foreshadowed above, standing the principal application over generally in its present constitution with the company in liquidation as its sole respondent. Whether Ms Pham has rights to pursue either or both of the Magar brothers by making fresh complaints to the Australian Human Rights Commission or elsewhere is a matter that she should take careful advice on.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 14 September 2009
1
3
0