Ritchie v Chubb Security Services Ltd - [2010] FMCA 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RITCHIE v CHUBB SECURITY SERVICES LIMITED

[2010] FMCA 361

INDUSTRIAL LAW – Practice & procedure – application for summary judgment against respondent – whether ‘in default’ – whether filing fee payable for Response seeking costs – whether proceedings were conducted in the ‘small claims list’ – employed lawyer representing a corporation – whether leave required – effect of 2009 amendments – no grounds for summary judgment shown – application refused.

Fair Work Act 2009 (Cth), ss.548, 570
Fair Work (Registered Organisations) Act 2009 (Cth), s.353A
Federal Magistrates Court Rules 2001 (Cth), rr.4.04, 9.04, 13.03A, 13.03B
Federal Magistrates Regulations 2000 (Cth), reg.5(1), Sched 1
Judiciary Act 1903 (Cth), s.55B
Workplace Relations Act 1996 (Cth), s.854

Applicant:

MICHAEL RITCHIE

Respondent:

CHUBB SECURITY SERVICES LIMITED (ACN 004 247 358)

File Numbers:

SYG 602 of 2010

SYG 364 of 2010

Judgment of:

Smith FM

Hearing date:

18 May 2010

Delivered at:

Sydney

Delivered on:

18 May 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr A Gray

Solicitors for the Respondent:

Mallesons Stephen Jaques

ORDERS

The application in a case filed on 5 May 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 602 of 2010

SYG 364 of 2010

MICHAEL RITCHIE

Applicant

And

CHUBB SECURITY SERVICES LIMITED (ACN 004 247 358)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

There are two matters in my docket which have been listed today, being SYG 602 of 2010 and SYG 364 of 2010. The parties to both applications are the same. In both of them, Mr Ritchie seeks orders against his former employer, Chubb Security Services Ltd, in relation to what he claims are unpaid entitlements and unlawful dismissal. This judgment explains why I am refusing an application by Mr Ritchie to strike out Chubb’s responses, and for summary judgment in both matters.
For reasons which are unclear to me, Mr Ritchie commenced proceedings SYG 364 of 2010 first, seeking an amount of unpaid entitlements earned in the course of his employment. He adopted the form of application for matters in the Fair Work Division of this Court, which includes the heading “Small Claims List (delete if not applicable)”, without deleting that heading. He also filed a Form 5, which is entitled “small claim under the Fair Work Act 2009”. Prima facie, that proceeding was properly commenced as a ‘small claim’ under s.548 of the Fair Work Act 2009 (Cth).
However, at the First Court Date on 26 March 2010, I drew the parties’ attention to the fact that a second proceeding had been filed by Mr Ritchie on 19 March 2010, although at that stage it had not been served on Chubb. Chubb was represented by Mr Krajewski, who identified himself as Chubb’s employee relations manager. Mr Ritchie made no challenge to Mr Krajewski’s appearance, and he and Mr Krajewski agreed that the second proceeding should be transferred into my docket, and be case-managed concurrently with the first proceeding. A directions hearing in both proceedings was appointed for 9 April 2010 for this purpose.
In his second proceeding against Chubb, being matter SYG 602 of 2010, Mr Ritchie alleges unlawful termination of his employment by letter dated 15 February 2010, and claims compensation and reinstatement. His application in the Fair Work Division did not delete the heading ‘small claims list’, but he appropriately used Form 2 for a “claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”. It is now clear, and it is my recollection that Mr Ritchie conceded at earlier listings, that this proceeding could not be brought as a ‘small claim’. This is because Mr Ritchie was seeking relief which does not come within s.548 of the Fair Work Act for two reasons: first, because his claims did not come within the matters listed in s.548(1A); and secondly, because he is seeking more than the monetary limit of $20,000 under s.548(2). He has confirmed the latter fact in paragraph 73 of his affidavit filed on 30 April 2010 and (perhaps) also in paragraph 73 of his pleading filed on the same day.
It is my recollection, without the assistance of a transcript, that the continuance of both of the proceedings together outside the confines of the ‘small claims list’ was discussed at one or both of the listings on 26 March and 9 April 2010. I made no specific order removing them from the operation of s.548, nor amending the initiating applications to remove the references to the small claims list on the applications. Such a list does not, in fact, have any separate existence in the Court’s present docketing, administrative and registry arrangements. However, I made directions on that day by consent which were intended to have the effect, and in my opinion indicated, that both matters would proceed in accordance with one set of directions made in the second proceeding, outside the confines of s.548. I note that neither my written orders, nor any documents subsequently filed by either of the parties, were entitled in the small claims list.
My directions made on 9 April 2010 in both proceedings provided for the filing of one set of pleadings and affidavits by the parties addressing all the claims made in both proceedings. They referred the parties for mediation, and appointed a hearing on 5 August 2010.
Mr Ritchie has now filed an interlocutory application on 5 May 2010 which was returnable for hearing today. He seeks orders in both matters that the Court should ‘vacate’ the responses filed by Chubb Security Services Limited and enter default judgment in his favour in both matters.
His affidavit in support points to two reasons for these orders, which are sought under rule 13.03B of the Federal Magistrates Court Rules 2001 (Cth), on the basis that Chubb is “in default”.
Chubb is certainly not in default in relation to complying with any orders I have made in the matter. However, Mr Ritchie argues that its Responses failed to “do any act required to be done by these rules” within r.13.03A(1)(d), in that no fee was paid on the filing of either Response. He argues that a fee was payable under Federal Magistrates Regulations 2000 (Cth) reg.5(1) and item 6 of the Schedule to those regulations, because the Responses were documents “seeking the making of final orders different from those sought by the applicant”. He argues that such orders were sought when Chubb completed the form of Response under “Further Orders Sought by the Respondents”, by foreshadowing the seeking of costs against Mr Ritchie in the proceedings on the ground of ‘vexatiousness’.
It was, in my opinion, appropriate for Chubb to foreshadow the seeking of costs orders against Mr Ritchie, because generally proceedings in the Fair Work Division of this Court do not attract costs orders unless an exceptional ground is made out under s.570 of the Fair Work Act. However, it is doubtful whether this constitutes a ‘further order sought’ within the intention of item 6 in the Schedule to the fees regulations. This appears more directed at Responses which include substantive cross-claims. It does not appear to me that respondents are required, in particular, by r.4.04(1) of the Federal Magistrates Court Rules, to foreshadow the seeking of a consequential costs order in their Responses which only dispute the substantive orders sought by the applicant.
In the present case, I infer that the Federal Court Registry did not seek the payment of a fee on the filing of Chubb’s Responses, based upon its understanding that item 6 of the fees regulations did not apply to the documents. I am not persuaded that their opinion was incorrect. Mr Ritchie has, therefore, not established any ‘default’ by Chubb in relation to the fees regulations.
Moreover, even if a filing fee should have been demanded by the Registry, and paid by Chubb, it is obvious, in my opinion, that summary judgment in the substantive matter would be a far from proportionate and appropriate response to a failure to pay a filing fee in the present circumstances.
Mr Ritchie’s second argument in support of his summary judgment application, was that Mr Krajewski’s appearances for Chubb on 26 March 2010 and 9 April 2010, and his signature of pleadings on behalf of Chubb, was contrary to s.548(5) of the Fair Work Act. This provides:
A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
Section 548(7) provides:
For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
It is now common ground that Mr Krajewski is admitted to practice as a solicitor in NSW and holds a current practising certificate. He is employed by Chubb Security Holdings Ltd to perform duties as employee relations manager for various subsidiaries and business divisions of that company, including the present respondent.
Mr Ritchie argues that leave was not sought by Mr Krajewski, that therefore there were defaults by Chubb, and that these provide grounds for summary judgment. The second leap of this argument poses obvious difficulties, and I also consider that the first step is also unfounded.
As I have found above, the proceedings in which Mr Krajewski has been appearing for Chubb before me include proceedings which could not have been commenced in the Small Claims List, and should not be regarded as being subject to s.548(5). The documents which he has signed were filed pursuant to my directions made in those proceedings. His professional appearances and actions on behalf of Chubb, are sanctioned by s.55B(1) of the Judiciary Act 1903 (Cth), and no leave of this Court was required. I do not need to decide whether he came within s.548(7).
I initially also thought that Mr Krajewski might have had a right of appearance as an authorised employee of a corporate party. A right of appearance in industrial matters by such a person was previously found in s.854(10)(a) of the Workplace Relations Act 1996 (Cth), so that leave was not required to be given under r.9.04 of the Federal Magistrates Court Rules for a corporation to be represented by a non-lawyer. However, the right of appearance by an officer or employee of a corporation appears to have been removed by the 2009 amendments, since no equivalent provision can be found in the Fair Work Act or the Fair Work Regulations, and the rights of appearance conferred by s.353A of the Fair Work (Registered Organisations) Act 2009 is confined to members, officers or employees of industrial organisations. I am unaware whether this omission reflects a considered change of policy, or oversight in the drafting of the new legislation.
I am, therefore, not persuaded that Mr Ritchie’s second argument has a factual basis. I am certainly not persuaded that if it did have a factual basis, it would provide proper grounds for summary judgment, or any other sanction, against Chubb in either of the present proceedings.
For all of the above reasons I dismiss Mr Ritchie’s application in the case.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 27 May 2010