Reeve v Ramsay Health Care Limited
[2012] FMCA 120
•14 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REEVE v RAMSAY HEALTH CARE LIMITED | [2012] FMCA 120 |
| INDUSTRIAL LAW – Application to summarily dismiss claim for unlawful termination – previous general protections application brought before Fair Work Australia in relation to same events but brought out of time – whether Court has jurisdiction to entertain claim – statutory provisions – circumstances in which summary dismissal appropriate remedy. |
| Federal Magistrates Court Rules, rr.13.10 & 45.07 Fair Work Act 1999, ss.335, 338, 340, 342, 343, 351, 365, 366, 372, 366, 380, 386, 723, 724, 725, 727 & 779 Federal Magistrates Court Act 1999, s.17A Federal Court of Australia Act 1976 Commonwealth Constitution, s.51 Migration Act 1958, ss.476 & 477 |
| Ladakh Pty Ltd v Quick FashionPty Ltd & Anor [2010] FMCA 919 Abebe v Commonwealth [1999] HCA 14 Rentuza v Westside Auto Wholesale [2009] FMCA 1022 |
| Applicant: | RAYLENE SHONA REEVE |
| Respondent: | RAMSAY HEALTH CARE LIMITED |
| File Number: | PEG 310 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 10 February 2012 |
| Date of Last Submission: | 14 February 2012 |
| Delivered at: | Perth |
| Delivered on: | 14 February 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr N. Ellery |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
ORDERS
Pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 the Application filed on 31 October 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 310 of 2011
| RAYLENE SHONA REEVE |
Applicant
And
| RAMSAY HEALTH CARE LIMITED |
Respondent
REASONS FOR JUDGMENT
In this matter, Lucev FM made an order on 28 November 2011:
(1)That the respondent’s interlocutory application to dismiss the application on jurisdictional grounds be listed for hearing before me at 10.15am on 10 February 2012
which duly came before me on that day and I reserved my determination until today. In terms of precisely what was the interlocutory application his Honour was referring to, the Response filed on 8 November sought orders in paragraph 1 that the application be dismissed. In paragraph 2, it sought that such application, that is to dismiss the application, be heard and determined on the return date of 28 November 2011. That is the interlocutory application to which his Honour was referring. It was clarified at the hearing that the application was in fact one made pursuant to Rule 13.10 of the Rules of Court. That was implicit in the application, but it was spelled out at the hearing before me on 10 February that the respondent was seeking an order by way of summary dismissal.
Rule 13.10 of the Rules of court provides that:
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.
There are other grounds that Rule 13.10 refers to as grounds for summary dismissal:
(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.
That power to summarily dismiss under the Rules raises a range of issues which were argued before me by the respondent in this application.
The relevant factual background to the matter is helpfully summarised in paragraph 1 of the respondent’s outline of contentions of fact and law filed on 20 January 2012. On 7 January 2011 the applicant obtained employment as a data analyst with the respondent. On 24 March 2011 the applicant’s employment was terminated and on 8 July 2011 she filed an application. That application, which is found at page 50 of the affidavit of Rachel Alice Dawson filed on 8 November 2011, is a form F8. It is an application for Fair Work Australia to deal with a general protections dispute. The form of the application indicates at the top of the front page that it is an application made pursuant to ss.365 and 372 of the Fair Work Act 2009 (“the Act”).
As indicated, it is a general protections application. Section 365 is found in Part 3-1 of the Act which deals with general protections matters and relevantly provides that if a person has been dismissed, the person may apply to Fair Work Australia for Fair Work Australia to deal with the dispute. Section 366 prescribes a time within with such an application must be brought. It is within 60 days after the dismissal took effect or within such further period as Fair Work Australia allowed under subsection (2).
Subsection (2) then provides that Fair Work Australia may allow for a further period if Fair Work Australia is satisfied that there are exceptional circumstances, taking into account a number of matters that are there set out. I will return to the fate of the applicant’s application for an extension of time under that section in a moment. The annexure to the application filed in Fair Work Australia makes it clear that specifically the parts of Part 3-1 that the applicant was relying upon were ss.340 and 343. Section 340 is the provision of the Act that provides that a person must not take adverse action against another person if the other person has a workplace right. Those concepts, adverse action and workplace rights, are defined within the same Part and it was contended in the particulars provided in the application that in attempting to fulfil her workplace right to carry out her role as a data analyst, the applicant was dismissed. There is an alternative claim under s. 343 of the Act which provides that a person must not coerce another person to exercise their workplace right. It is contended that the applicant was coerced by her manager and others not to record data accurately.
They are the specific provisions of Part 3-1 that are relied upon.
So, the application involved an unfair dismissal, but it was not an application relating to an unfair dismissal. Unfair dismissal is dealt with in Part 3-2 of the Act. As to why no application was brought under Part 3-2, it was not a matter that was explicitly agreed before me, but on the basis of the material put and what I understand to be the assumptions underlying the submissions that were put to me, the suggestion is that Part 3-2 of the Act had no application on account of the provisions of s.386(2)(b).
Division 3 of Part 2 deals with unfair dismissals. Section 386, which appears in that Division, defines what it means to be dismissed, but goes on in subsection (2) to say that a person has not been dismissed if:
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated the end of the training arrangement.
As I say, it was not the subject of specific agreement before me, but that provision, which I understand to be the source of the so called “probationary” employment opportunity, accounts for there being no application for unfair dismissal per se having been pursued by the applicant in her application filed before Fair Work Australia – the initial application. It perhaps is appropriate for me to note that general protections, Part 3-1, have applicability to national systems employers and employees, but also, vide s.338, certain types of action are also caught within the general protections provisions and, vide s.335, employer or employee is otherwise to have its ordinary meaning.
With respect to unfair dismissal, Part 3-2, it applies, vide s.380, only to national systems employers and employees. There was before me and before Fair Work Australia, an apparent agreement that at the earlier phase of the proceedings or in respect of the earlier application, that both the employer and the employee in this instance are national systems employers and employees.
I am taking some time to outline the history of the previous application because it has some bearing on the application to summarily dismiss that is before me in respect of this application.
To return to the extension of time application, the application was dismissed by Commissioner Williams of Fair Work Australia on
18 August 2011.
In summary he found that some of the exceptional circumstances identified in s.366(2) existed, but only for a portion of the period that accounted for the delay and, in the exercise of his discretion, he refused to allow the extension of time to allow the application to be brought.
It is worth noting in paragraph 1 the clear explanation provided by the Commissioner as to what application was before him. He notes in paragraph 1 that Ms Reeves, the applicant, has made an application under s.365 of the Act alleging a contravention, involving dismissal, of the general protections contained in Part 3-1 of the Act.
The respondent is her past employer, Ramsay Health Care Limited. The applicant appealed to the Full Bench of the Fair Work Australia in respect of that refusal to grant time.
I do not know precisely when she did that, but the appeal was heard on 11 October 2011 and was, for reasons given orally by the Full Bench on that day, dismissed. I have not been provided by either party with a copy of the Reasons, but I have been provided with passages of the transcript of the hearing before the Full Bench of Fair Work Australia on that day. Portions of it were provided by the applicant, but the entirety of it provided by the respondent and, importantly, parts of that transcript appear at pages 340 and 341 of Ms Dawson’s affidavit.
Two separate members of the Full Bench took the opportunity to make certain remarks to the applicant when she was making her submissions in relation to the nature of her application. I am looking at page 340, halfway down the page, Senior Deputy President Kaufman:
This is not an unfair dismissal claim. Do you realise that? This is an unlawful termination application that you’re alleging which is different from an unfair claim.
Further down the page, Deputy President Ives:
The application that you initially made for which time was not extended by the Commissioner was not an unfair dismissal claim.
That is obviously right.
You have not made an unfair dismissal claim. You made a claim pursuant to section 365 of the Act which as the presiding member points out is, essentially, an unlawful termination claim, something totally different.
It is not clear to me why the two members of the Commission would have categorised the applicant’s application in that way. Over the page, 341, Deputy President Ives:
And that’s not an unfair dismissal claim.
Again, that is right. Further down the page, line 26, Deputy President Ives:
Yes, well that’s not – poor performance doesn’t fall under a category of unlawful termination claim, I’m afraid, Ms Reeve.
And then complicating matters further, down on that page, another expression is introduced. Deputy President Ives:
But you don’t have a claim for unfair termination.
So there seems to be a hybrid term referred to there, and then further down the page:
Well, that would ground a claim for unlawful termination.
As I say, I consider that Commissioner Williams had identified with precision the nature of the application that was before him and it is the same application that was being dealt with on the appeal. Perhaps what the two members of the Full Bench had in mind was that they were seeking to make clear that there was no unfair dismissal claim under Part 3-2. That is certainly right, and perhaps the use of the expression “unlawful termination” was their shorthand way of describing a general protections application which had been brought with those ss.340 and 343 aspects.
I am not able to take the matter any further than that. I do not have their Reasons. I cannot know the extent to which, if any, the somewhat confusing, with respect, categorisation of the application that was before them had in relation to the eventual outcome of the appeal, but it is certainly a matter that has had some impact upon the applicant’s understanding of the course of the proceedings. She says at paragraph 3.2 of her outline of contentions of fact and law filed on 3 February 2012:
I understand from the following Clause 723 that general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason, and now understand why the Commissioners at the appeal kept referring to my application as an Unlawful termination.
So, in the wake of those events before the Full Bench of Fair Work Australia, this current application is brought to the Court. It is an application filed pursuant to Rule 45.07 of the Rules of Court. It is, as it says it is, a claim under the Fair Work Act 2009 alleging unlawful termination of employment filed on 31 October 2011 and in paragraph 24 under the heading “Grounds of the Claim” is marked “Other,” and then in paragraph 25 gives details of the claim of unlawful termination of employment and refers to the same events.
They are not events I have described in any detail in these Reasons. They are events that are set out at length in the affidavit filed in support of the application and in other documents that were before Fair Work Australia that indicate that the applicant’s concern was that her dismissal related to her having drawn to the attention of other members and other officers of her employer, errors in the recording of data within the emergency department of the hospital, in particular in relation to the periods of time it took for patients to be seen in the emergency department, or inadequacies relating to the recording of information in relation to those events.
I think it is important for me to have provided that summary of the Fair Work Australia applications so as to understand the background to the application that is presently before me. As I have indicated, the application is one for summary dismissal of the application. I have referred to the power under the Rules. The rule making power is grounded on a provision of the Federal Magistrates Court Act 1999, in particular section 17A subsection (2) which provides that:
The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of the proceeding if:
and then subsection (b):
The Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
and, as I say, Rule 13.10 essentially mirrors that provision.
Former provisions of both the Federal Magistrates Act 1999 and the Federal Court of Australia Act 1976 described the state of satisfaction required to be reached to summarily dismiss as being that the proceeding was “bound to fail”. It is now a “no reasonable prospect of success” test. For the purposes of my understanding of what is involved in the application of such a test, I have been assisted by the discussion of that issue which is to be found in the decision of Riley FM in Ladakh Pty Ltd v Quick FashionPty Ltd & Anor [2010] FMCA 919 and, in particular, at [5] - [16], and I do not propose to set out in detail in these Reasons this morning all that her Honour had to say in relation to the application of the test, but I do want to say something about one of the cases to which her Honour referred and that was the High Court decision in Spencer v Commonwealth of Australia [2010] HCA 28.
The High Court were dealing there with a decision of the Federal Court upheld by the Full Court of the Federal Court to summarily determine a proceeding, a complicated proceeding involving arguments under s.51(xxxi) of the Constitution, and the Court took the opportunity to discuss generally the powers in the Federal Court of Australia Act 1976 to summarily determine – they are the same as the powers in this Court – both in the context of applications to summarily determine on the facts and on the law.
The High Court had this to say, and it is the judgment of the entire court at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence.
And then in that same paragraph, there is a reference to a majority judgment in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 a High Court decision which in turn picked up some remarks made by the majority of the High Court, and this is Agar v Hyde [2000] HCA 41:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
In relation to, as here, an application for summary dismissal essentially based upon propositions of law, the High Court said this at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
I think it is important to bear in mind the note of caution generally that is sounded in respect of the exercise of the power, the direction to exercise the power sparingly, but it is also important, I think, in the context of this application, to bear in mind that we are dealing with a relatively new piece of legislation which is relatively complex and, in addition, it is important to bear in mind that before me on this summary dismissal application the applicant was unrepresented.
That does not entitle her to any peculiar advantage or allowance by the Court in respect of the application of the test, but it does mean that we should recognise, I think, that in due course counsel may be retained and perhaps arguments may be adduced that are presently unconsidered by the Court.
So I turn now to the grounds.
The grounds are referred to in the comprehensive summary of contentions of fact and law filed by the respondent as five jurisdictional grounds. The first ground relates to s.723 of the Fair Work Act 2009 which provides that:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
Firstly, in relation to that expression “must not” and what it means in a practical sense in terms of the fate of an application which is apparently at odds with the direction, that is a matter that I have been greatly assisted in by the very careful consideration given to that issue by Lucev FM in the decision of Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5 and, in particular, the discussion of that topic at [29] - [63].
I am not proposing to set out all of the authorities which are discussed by the Federal Magistrate in that case, but to go to his conclusion at [63], and I bear in mind that this in the context of s.725 that his Honour was dealing with the use of that expression “must not”, though the identical expression is used in s.725. I will come to other issues relating to s.725 in a moment, but his Honour says this at [63]:
Therefore, s.725 of the FW Act acts as a personal prohibition on Ms Birch making a second complaint of a kind to which s.732 of the FW Act applies, that is from making the EO Complaint.
And for the reasons discussed by the Federal Magistrate in his review of the authorities in the paragraphs I have identified, I regard the use of the “must not” expression in s.723 as being a personal prohibition directed towards the putative applicants pursuant to that section. As to what the prohibition relates to, of course, is another matter. His Honour’s decision also – again, bearing in mind it was in the context of s.725 – carefully considered the expression “in relation to”. Section 725 provides that:
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of the sections 726 to 732 in relation to the dismissal if any other of those sections applies.
Just to refresh my memory about s.723:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
That expression, “in relation to”, is discussed in detail by his Honour in that decision at [72] and [85] - [86] and what he has to say there is of equal applicability to s.723. At [72] his Honour says this:
That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression.
The authorities are then referred to in the footnote.
The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the Court. Context is also important to a consideration of whether the relationship need be:
(a) direct or substantial;
(b) indirect or less than substantial;
(c) affecting one term of the relationship; or
(d) affecting all of the terms of the relationship.
His Honour’s conclusions in relation to those matters in the context of the matter before him are set out at [85] - [86] of that decision.
I think it is important to carefully identify the matters to which s.723 is addressing itself. In s.723 it seems to me I am asking whether the application in each case is in relation to conduct that is the same conduct. So, the unlawful termination application must be in relation to that conduct.
The general protections court application must be in relation to what is described as – and then we have the definite article – “the conduct,” clearly referring back to the conduct to which the unlawful termination application related. The unlawful termination application conduct is in relation to just that: a termination of employment. A general protections court application is in relation to adverse action and coercion in relation to a workplace right.
I should note at this point that the applicant could have, but did not, rely in her general protections court application upon the discrimination provisions of the general protections part which are to be found at s.351 under the heading of Other Protections.
Section 342 defines “adverse action” and adverse action is taken to include dismissal – and just pausing there, before I come back to this question of what conduct it is that is referred to in s.723, I should note the discussion that transpired with counsel in relation to the use of that expression “entitled”.
I raised in argument with counsel the possibility that that expression had a temporal significance and that if we were directing our attention to the time at which the unlawful termination application was brought, it may be that it could not be said that the general protections court application was something that the applicant was entitled to have made – and that being either because it was well out of time or had been dismissed and was the subject of an action or issue estoppel – but I am satisfied, especially following consideration of the cases of Leonard v Smith & Anor (1992) 27 NSWLR 5 and Kimberly Clark Ltd v Commissioner of Patents & Anor (1988) 83 ALR 714, that it would be inappropriate to regard the entitled expression in that section as having any temporal significance. Leonard v Smith & Anor (supra) involved a provision of the Workers Compensation Act 1987 (NSW) which had the effect that in proceedings taken by a worker against someone other than his employer in respect of a compensable injury, the damages recoverable were to be assessed as if the plaintiff had joined the employer as one of the defendants. The relevant section provided:
(2) If, in respect of an injury to a worker for which compensation is payable under this Act –
(a) the worker takes proceedings independently of this Act to recover damages from a person other than the worker’s employer; and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect;
(c) …
(d) …
Allen J of the New South Wales Supreme Court said, at p.10:
There is some difficulty with the phrase “is entitled to take” such proceedings. It has been argued that this expression means that at the time the proceedings are commenced by the tortfeasor other than the employer the worker must have had the right to commence and maintain proceedings against his employer for damages. If because he had not taken some appropriate step to found such proceedings, or had lost through effluxion of time or otherwise the right to sue the employer then, so it has been argued, the condition would not be satisfied. This argument is reminiscent of the argument considered by the High Court in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 in respect of the similar expression in s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. It is an argument unanimously rejected by the judges who constituted the court for that case and it is no more persuasive in the present case. The expression denotes a worker who by his conduct satisfies any condition precedent to being entitled to sue his employer and who sues at the appropriate time in an appropriate court. There is no temporal connotation linking his entitlement to take proceedings against his employer with the time at which he commences proceedings against the other tortfeasor.
In Kimberly Clark Ltd v Commissioner of Patents & Anor (supra) Jenkinson J was dealing with a motion to strike out an application to review an order of the Commissioner of Patents on the basis that adequate provision was made by other laws to enable a review by the Administrative Appeals Tribunal. His Honour was entitled to refuse the application “for the reason –
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision …”.
He said this at 718 – 719:
The present tense of “is entitled” in the sub-paragraph does not in my opinion require, as a matter of construction, that the entitlement should exist at the time when this court is called upon to exercise the discretionary power conferred by the sub-paragraph. If it did, entitlement under the “law other than this Act” to seek a review of a description contained in the sub-paragraph might often have been lost by effluxion of time – as it has been lost by the applicant in this case – when the court was called upon to exercise the power. The circumstance that the applicant is not now entitled to seek a review of the decision by the Administrative Appeals Tribunal, but only to seek an exercise in its favour of that tribunal’s discretionary power, conferred by s.29(7) of the Administrative Appeals Tribunal Act 1975, to enable it to seek that review by extending the time for making application for review, does not in my opinion falsify the conclusion that “adequate provision is made by (a) law other than this Act under which the applicant is entitled to seek a review … of that decision.
So here, in my view, there is no temporal specificity in relation to the application. To read it otherwise would effectively empty the provision of any kind of practical meaning.
Returning to the issue in relation to conduct, my concern is that the applicant was never entitled to make a general protections application in relation to dismissal. That accounts for the fact that no unfair dismissal application was brought. She was not entitled to bring an application relating to the dismissal or to the termination of her employment because of the definition of “dismissal” in the statutory provision to which I referred earlier.
Therefore it is difficult perhaps to understand how it is that the conduct, the subject of the unlawful termination application, can be coextensive with the conduct in the general protections court application. The general protections court application was addressed to conduct constitutive of adverse action, but unrelated to the dismissal. The conduct involved a dismissal, but it was not in relation to a dismissal.
I certainly do not have any settled view in relation to that, but in the context of an application for summary dismissal, it must be thought that if it is at least arguable that if there is the possibility of identifying the conduct, the subject of each of the applications, in a different way, that the applicability of s.723 to the circumstances of this case might be somewhat more complicated than is first thought.
I acknowledge the matters set out in paragraph 1 of the outline of contentions of fact and law, in particular the reference to the Explanatory Memorandum which explicates the circumstance that the unlawful termination application is one that was grounded on the external affairs power given to the Commonwealth by s.51 of the Commonwealth Constitution, and that, to paraphrase what the Explanatory Memorandum provides, the legislation is attempting to affect a streaming, as it were, of applications. Those who are entitled to the benefits of the general protections provisions and that, in simplistic terms, is national employers and employees, are obliged to use that remedy. Those who are unqualified, because of the nature of the business activity or the state based nature of the employer, are the category of persons and entities for whom the unlawful termination provisions are reserved. I accept that is the purport of the Explanatory Memorandum.
I accept that that is what s.723 is attempting to do, but there is still for me in the context of applications which cannot be characterised as dismissals on account of the definition of “dismissals” in Part 3.2 of the Act, a live issue as to whether the Act achieves what it is attempting to achieve by that streaming. I do not express any concluded view about this, but my state of uncertainty in relation to the matter falls well short of the requisite state of mind to enable me to summarily determine the application on this basis, particularly bearing in mind those passages from Spencer v Commonwealth of Australia (supra) which I referred to earlier.
Ground 2 is the s.725 point. I have previously read out s.725. It is the relationship between s.725 and s.727 that is said to be fatal to the application in this case, and again the Explanatory Memorandum makes clear, and I accept that the purpose of s.725 and the related provisions is to prevent double dipping. Section 725 provides that:
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of the sections 726 to 732 in relation to the dismissal if any other of those sections applies.
Section 727, under the heading of General Protections FWA Applications, says:
This section applies if:
(a) a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i)been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under section 369.
That first question, as to whether a general protections “application” has in fact been made, is one that I will return to in a moment. In terms of the application, all of the provisions of subsection (b) it will be noted must be satisfied. Subsection (b)(i) is certainly satisfied. The application has not been withdrawn. Subsection (b)(iii) has certainly been satisfied: it has not resulted in the issue of a certificate. But has the application failed for want of jurisdiction ((b)(ii))?
A general protections application, it will be remembered, was filed out of time and the application for extension of time having been made was refused. Is that a circumstance of the application having failed for want of jurisdiction?
That expression, “want of jurisdiction”, was given consideration by the Full Court of the Supreme Court of South Australia in Tsimpinos v Allianz [2004] 88 SASR 311 at 313. I will not set out the occasion for the consideration of the issue, but Debelle J had this to say in relation to that issue:
The expressions “excess of jurisdiction” and “want of jurisdiction” are well understood. The expressions are not terms of art. Speaking generally it can be said that there is a “want of jurisdiction” when a court or tribunal does an act which is beyond its general power or authority and that there is an “excess of jurisdiction when it does an act, the doing of which is within its general authority or power, but which was done in breach of the conditions which authorise the doing of acts of that class or nature.”
Then there is a reference to the High Court decision of the Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch & Anor (1991) 173 CLR 132 and the reference was to a passage at 164 in the decision of McHugh J:
The phrases “excess of jurisdiction” and “want of jurisdiction” are not terms of art. Nevertheless, they are frequently used by superior courts in describing acts of inferior courts or tribunals which have been done or carried out in breach of the conditions which circumscribe the powers and authorities of those courts or tribunals: as to the phrase “want of jurisdiction” –
and then his Honour sets out a number of authorities in the footnote, and then:
see as to the phrase “excess of jurisdiction” –
and there is another series of authorities set out in the footnote there and his Honour goes on -
Speaking generally, it can be said that there is a “want of jurisdiction” when a court or tribunal does an act which is beyond its general power or authority and that there is an “excess of jurisdiction” when it does an act, the doing of which is within its general power or authority, but which was done in breach of the conditions which authorise the doing of acts of that class or nature. As the passages in the judgments in the foregoing cases demonstrate, however, it is not uncommon for superior courts to use the phrases “want of jurisdiction” and “excess of jurisdiction” interchangeably. Nevertheless, whichever phrase is used to describe the situation, an inferior court or tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal.
And his Honour then goes on relevantly to the facts of that case to say:
That being so, a mere failure to exercise jurisdiction cannot constitute an “excess or want of jurisdiction”.
Certainly, there is ample authority Federal Court authority relating to the failure of applications brought outside of statutorily imposed time limits being regarded as jurisdictional failure. The time limit imposed under the Migration Act 1958 (Cth) for the bringing of applications to the Federal Court to review decisions of the Refugee Review Tribunal (in the form of legislative provisions which have been amended since) appears to have been so regarded in Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5.At [12] – [13] the Full Court said:
Statutory provisions imposing time limits on actions take various forms and have different purposes. There is a distinction between statutes of limitation, properly so-called, which operate to prevent the enforcement of rights of action arising independently of statute, and limitation provisions annexed by a statute to a right newly created by it. In the latter case, the limitation does not bar an existing cause of action but imposes a condition, which is of the essence of the new right created by the statute - Australian Iron & Steel v Hoogland [1962] HCA 13; (1962) 108 CLR 471 at 488.
If the right to make an application under s 476 is conditioned upon the application being lodged within the twenty-eight day period, enlargement of that period by the Court would, in effect, create a new right. That would be beyond judicial power. On the other hand, if s 478(1)(b) is to be treated as a limitation provision, properly so-called, it would simply prevent the enforcement of the right, which exists or arises independently, albeit created by the same statute. In that case, a power might be implied to extend the time within which the application may be lodged, and the time within which the jurisdiction that arises in consequence of the lodgment, may be exercised - National Telephone Company Ltd v Postmaster General [1913] AC 546 at 552, 557 and 562.
In relation to the same legislative provision the High Court said in WACB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 50 at [31] – [32]:
As remarked earlier in these reasons, Pt 8, which includes s 478, is headed "Review of decisions by Federal Court". These provisions confer upon certain unsuccessful visa applicants (and in some circumstances the Minister[26]) an entitlement, limited in scope, to seek judicial review in the Federal Court. Section 478 is facilitative of that entitlement, not destructive of it. While an applicant must lodge the application within 28 days from the date of notification and the Court may not extend that period, nevertheless the Act confers an entitlement to review, albeit one with a limited threshold. This state of affairs may be contrasted with the power given to the Federal Court by s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to extend the time limit which otherwise applies to the institution of applications for judicial review.
The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right"[27]. Thus, s 478(1)(b) and s 478(2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the Parliament under ss 76(ii) and 77(i) of the Constitution. The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding.
In this regard, see also observations to same effect in Abebe v Commonwealth [1999] HCA 14 at [235] (Kirby J) in relation to the same legislative provisions:
There can be no doubt that the power conferred on the Parliament by s 77(i) of the Constitution to define by law the jurisdiction of a federal court should be understood as one permitting the "definition" of jurisdiction in terms proper to a body which truly answers the description of a "federal court". To this extent, the limitations of the legislative power in s 77(i) derive as much from the imputed character of "federal courts", as envisaged by the Constitution, as from implications inherent in the word "matter". An attempt by the Parliament to make a law "defining" the jurisdiction of a federal court so as to include the provision of a purely advisory opinion, or the making of decisions on abstract questions divorced from any attempt to administer the law[217], would be beyond legislative power. The judicial power of the Commonwealth can thus only be exercised in "accordance with the essential attributes of the curial process"[218]. This fact, and the characteristics which inhere in every "federal court", as such, undoubtedly place restrictions on the laws which the Parliament may make, including those which purport to "define" the jurisdiction of a federal court.
See also Callinan J in Abebe v Commonwealth (supra) at [279] – [281].
It might be thought, having regard to those authorities, that the failure of the applicant in this case was not one which was related to the lack of general power of the Court, but the failure to fulfil a condition relating to the exercise of that power. In other words, to the extent that the authorities referred to in [59] and [60] herein discern between “excess of” and “want of” jurisdiction it might be thought that the failure of a Court not to refuse to hear an application or, to deal with an application that was not brought in time, would be regarded as an excess of rather than want of jurisdiction, but that distinction would appear to be of little consequence. It is still a jurisdictional problem.
This issue of whether the general protections application failed for want of jurisdiction is bound up with that other issue in s.727(1)(a) as to whether an application has in law been made and Mr Ellery, for the respondent, drew to my attention a decision of Fair Work Australia, a decision of a single Commissioner in Shegog v ABC Transport Pty Ltd (2012) FWA 101. This relates to an application that was filed for general protections but then withdrawn, but it had not been withdrawn at the time that the unfair dismissal application had been filed and the learned Commissioner had this to say at [10]:
In arguing that the unfair dismissal application had been made when it was lodged, the respondent submits that the “act of ‘making’ an application is quite separate from whether FWA has jurisdiction to hear the application that has been made”. It submits that the unfair dismissal application was made when it was lodged on 22 August 2011, albeit that it was not determined at that time whether the application would be allowed to proceed.
He then goes on at [11]:
I disagree. In my view, an application that is lodged out of time is not made unless and until Fair Work Australia allows a further period for the making of it. When an out of time “application for relief” is lodged the only function that Fair Work Australia is empowered to perform is to determine whether time for the making of the application should be extended. If time is extended, the application is made “within such further period as FWA allows under subsection (3)” and the application is made within the timeframe required by subsection (2). An application that is lodged within time is, however, made at the time of filing. A proper reading of section 394(2) compels the conclusion that that is so.
The respondent would seek to distinguish that decision upon the basis that the Commissioner was dealing there with a case where no application for extension of time had been made, but it seems to me that that may be simply another side of the one coin. An application will not have failed for want of jurisdiction unless and until the extension application is brought. The corollary of that is if it is not brought, that is if the extension of time application is not brought, there is no application. They seem to be two sides of the one coin. So I am not certain that there is necessarily any rational way of distinguishing the case on that basis.
Again, I have to remind myself, I am dealing with this matter in the context of an application to summarily determine and it seems to me that those related matters as to whether an application made out of time is an “application” in the language of s.727 and/or whether it is an application that fails for want of jurisdiction in terms of (b)(ii) are what I would regard as live issues.
“Arguable issues” is perhaps another way of expressing the matter and in the context of a relatively new piece of legislation, they are significant matters for me to bear in mind and again I make these remarks in acceptance of the matters that are set out in paragraph 5.10 of the outline of facts and law of the respondent, that is, I understand from the Explanatory Memorandum what the provisions are attempting to do and the purpose of them, but the question remains for me as to whether in the factual context of a case such as this the language of the legislation actually achieves that purpose.
I am in a sufficient state of uncertainty as to those matters for me to consider it inappropriate to exercise the summary dismissal power in relation to that ground.
The next matter promoted as a ground for summary dismissal though is more straightforward. It involves less ambiguous provisions of the legislation. Really grounds 3 and 4 are related. Ground 3 contends that the applicant is precluded from bringing the unlawful termination application because of the requirements of s.779 of the Act.
That section provides (and it is mirrored in the relevant Rule of Court which is Rule 45.07):
(1) A person who is entitled to apply under section 733, to FWA for FWA to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless
(a) FWA has issued a certificate under section 777 in relation to the dispute; or
(b) the unlawful termination court application includes an application for an interim injunction.
Section 773 provides that:
If
(a) an employer has terminated an employee’s employment; …
the employee may apply to FWA for FWA to deal with the dispute.
And then there is a time limit imposed in s.774 of 60 days or within such further time as Fair Work Australia allows and then similar criteria in relation to the granting of an extension of time are set out in s.774(2), similar to the provision relating to general protections applications.
So the scheme of the Act is straightforward enough. You do not come to Court on your unlawful termination court application until you have been to Fair Work Australia unless you have got an application for an interim injunction, and that is not the case here. That seems straightforwardly to be the scheme of the Act. It is certainly the way Lucev FM understood the scheme of the Act to operate in the case of Rentuza v Westside Auto Wholesale [2009] FMCA 1022 and it is certainly the way in which a number of other Federal Magistrates exercising this jurisdiction have understood the provisions to operate.
In Rentuza v Westside Auto Wholesale (supra) there was an application for unlawful termination before the Court. There was no s.777 certificate. The applicant was entitled to make the application to Fair Work Australia to deal with the dispute, but had not done so and the legislative provisions are set out by the Federal Magistrate in his judgment. He says, at [21]:
Considering the above provisions as a whole, but also in particular ss 777 and 779 of the FW Act and r.45.07 of the FMC Rules, it is manifestly clear that, except where an interim injunction is applied for, an application to this Court alleging unlawful termination cannot be made unless a s 777 Certificate is obtained from FWA.
Paragraph 22:
The requirements for the application alleging unlawful termination to be made to FWA, more particularly, for FWA to issue a s 777 Certificate have not been met and therefore this is an application which could not be made.
Paragraph 23:
It is the Court’s first duty to be satisfied that it has jurisdiction to deal with the subject matter of the proceedings. By reason of the matters referred to above this is an application which cannot have been made, and there is either no application, and hence no jurisdiction, or simply no jurisdiction to deal with the matter presently before the Court.
An echo there of some of the considerations relating to ss.725 and 727, that I have just dealt with, but in any event, in those circumstances, the learned Federal Magistrate considered himself constrained to and did dismiss the application. And of course the application which ought to have been brought to Fair Work Australia to obtain the certificate to grant the application to this court was itself out of time.
No application for an extension of time has been made in the matter before me, but as to whether it will be made is a matter for the future.
I am satisfied that the combined effect of grounds 3 and 4 is that there is no reasonable prospect of this application succeeding. The statutory precondition to the bringing of the application is manifest in the Act.
It has not been fulfilled. It is not a matter that is going to be addressed by the adduction of facts. It is an objectively fatal absence of compliance with the statutory provisions and the combined effect of grounds 4 and 5 is that I am satisfied that the application has no reasonable prospect of success and ought to be dismissed.
I should, for the sake of completeness, point out that in relation to the fifth ground alleged, that is the failure to describe the basis of the application adequately, that I was not at all certain whether that was such a failure by the applicant, and it seemed to me that in the exercise of the court’s discretion, those matters could have been cured by permitting the amendment of the application, but all of that is by the by. For this application to be have been brought to the court, there are certain statutory preconditions to be met. They have not been met. They cannot be cured by amendment.
The application needs to be summarily dismissed on those grounds.
I have indicated passim that the arguments pursuant relating to s.723 and the combined effect of 725 and 727 were more controversial. But for the combined effects of grounds 3 and 4, I would not have summarily dismissed the application.
I should note that there are a number of complications relevant to the circumstances of this matter. Firstly, it seems to me the initial application brought before Fair Work Australia did not really come to grips with the fact that the complaint was in relation to a dismissal.
No unfair dismissal application could be brought apparently because of the probationary nature of the applicant’s employment. I express no view about that. I do not know enough of the facts in relation to that matter to make a finding as to that matter, but that seems to be the way in which the parties have proceeded, and then perhaps on account of this understanding of the purpose of section 723 to be to stream national employers and employees compulsorily in the direction of a general protections application, a general protections application was brought by the applicant even though the adverse action and workplace right nomenclature was probably always inappropriate for the factual circumstances of this matter.
So that is the first complication. Then of course it is complicated by the fact that that application itself was filed out of time, and I have already referred to those matters. It is further complicated by the self-represented status of the applicant before me and before the Full Bench of Fair Work Australia, and then there is that inadvertent, and I say this with the greatest of respect to the members of the Full Bench, muddying of the waters in relation to the nature of the application in argument – in the colloquy between Ms Reeve and two members of the Full Bench – which if I am to accept what she says in her outline of submissions, accounts for her bringing her application to this Court.
If the applicant brings an application for an extension of time in relation to an application before Fair Work Australia relating to the unlawful termination, if that is done, I would earnestly hope that all of the complexities attending the circumstances of the case would be taken into account in a determination of that application.
As to the application before me, there will be an order pursuant to Rule 13.10 of the Rules of Court that the application filed on 31 October 2011 be summarily dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 28 February 2012
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