Sibert v Tiwi Islands Shire Council - [2012] FMCA 1099

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIBERT v TIWI ISLANDS SHIRE COUNCIL

[2012] FMCA 1099

INDUSTRIAL LAW – Summary dismissal of application barred by s.723 of the Fair Work Act 2009 (Cth) – refusal of leave to amend the application.

Fair Work Act 2009 (Cth), ss.369, 371, 570, 723
Federal Magistrates Court Rules 2001 (Cth)

Maher v Mulgowie Fresh Pty Ltd (2010) 197 IR 64
Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186

Applicant:

ADRIAN SIBERT

Respondent:

TIWI ISLANDS SHIRE COUNCIL

File Number:

DNG 30 of 2012

Judgment of:

Driver FM

Hearing date:

19 September 2012, via videolink to Darwin

Delivered at:

Sydney

Delivered on:

19 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Baldry

Counsel for the Respondent:

Mr Taylor

Solicitors for the Respondent:

DeSilva Hebron Lawyers

INTERLOCUTORY ORDERS

The applicant’s application, being a claim alleging unlawful termination of employment under ss.359 and 772 of the Fair Work Act 2009 (Cth) be dismissed, pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis of the applicant’s proceeding or claim for relief has no reasonable prospect of success.
There be no order as to costs.
In the event that an application is made by for relief pursuant to s.351 of the Fair Work Act 2009 (Cth), that application be assigned to the docket of Federal Magistrate Driver.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

DNG 30 of 2012

ADRIAN SIBERT

Applicant

And

TIWI ISLANDS SHIRE COUNCIL

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(As Corrected)

I have before me an Application in a Case, filed on 27 June 2012, by the respondent to principal proceedings instituted on 30 May 2012. The Application in a Case seeks the summary dismissal of the principal proceedings, pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the applicant’s proceeding has no reasonable prospect of success.
The reason why the principal proceeding is said to have no reasonable prospect of success, is based upon the statutory bar contained in s.723 of the Fair Work Act 2009 (Cth) (the Fair Work Act), which provides:
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.
It is common ground that the principal application was brought on a misunderstanding of the law.
Mr Sibert could not bring an action for unlawful termination, because he was entitled to make a general protections court application. Mr Sibert, who was only recently given the benefit of effective legal representation, seeks to overcome that difficulty by his own Application in a Case filed on 14 September 2012.
That application seeks the Court’s leave to amend the principal proceedings to convert them to an application for relief based upon the general protections provisions of the Fair Work Act. The objection to that application by the employer, Tiwi Islands Council, is that the Court has no jurisdiction to entertain the principal application, so it has no jurisdiction to entertain the application for amendment.
The Tiwi Islands Council relies in support of that proposition on the decision of this Court in Pitrau v Barrick Mining Services Pty Ltd[1]. In that case Lucev FM relevantly found that s.723 of the Fair Work Act imposes a statutory bar on the commencement of proceedings for unlawful termination, where a general protections action is available and in the face of that statutory bar the Court has no jurisdiction to deal with such an application or permit an amendment of it.
[1] [2012] FMCA 186
Mr Sibert relies on the Federal Court decision of Maher v Mulgowie Fresh Pty Ltd[2]. In that case Collier J permitted an amendment of an application improperly brought in breach of s.723. It appears to have been significant in that case that the application for amendment was brought early in the proceedings and the applicant had the benefit of a certificate made under s.369 of the Fair Work Act, as a jurisdictional prerequisite to the application which the Court had jurisdiction to deal with.
[2] (2010) 197 IR 64
In Pitrau there was no such certificate and Lucev FM drew attention to that obstacle facing the applicant seeking to amend. In the present case a s.369 certificate was issued to Mr Sibert. To that extent the case is closer to that of Mulgowie Fresh than Pitrau. However, the further objection is made that the Federal Court decision in Mulgowie Fresh did not deal specifically with the issue of the statutory bar and the consequential absence of jurisdiction is dealt with at length in the decision of Lucev FM.
I do not think it is necessary for me to reconcile the decisions in Pitrau and Mulgowie Fresh. That is for the reason that if the Court lacks jurisdiction then it could not allow the amendment and if the Court has jurisdiction it should not allow the amendment. The reason why the Court should not allow the amendment is that the proceeding sought to be brought would now be statute barred by the effluxion of time, subject to the Court’s discretion to grant an extension of time[3]. By granting the amendment the Court would, effectively, circumvent that issue. The respondent employer would suffer prejudice by such an amendment
[3] Section 371(2) of the Fair Work Act
Mr Sibert has the opportunity to recommence proceedings and seek an extension of time, subject only to the necessity of paying the necessary filing fee. The Court can and should give consideration to any request for an extension of time should such an application be filed. While this Court is to operate informally the Court must respect jurisdictional limitations and must also respect the need for proceedings to be properly brought and continued without undue prejudice to respondents.
If Mr Sibert’s application for amendment had been brought early in these proceedings, before the expiration of the limitation period for a general protections action, then the outcome might well have been different.
The order that I will make is the order sought in the respondent’s application in the case.
There remains an issue of costs. Section 570 of the Fair Work Act provides:
(1)   A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2)    The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)   the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i)     the party unreasonably refused to participate in a matter before FWA;
(ii)     the matter arose from the same facts as the proceedings.
The relevant issue is whether Mr Sibert’s proceedings were instituted or continued vexatiously or without reasonable cause. I am satisfied that they were not.
Mr Sibert initially only had advice from a Legal Aid lawyer. He proceeded under a mistake of law. To that extent the proceedings were plainly not vexatious. Once he became aware of the legal issue raised in the Application in a Case, he properly sought legal advice and attempted, through his own Application in a Case, to cure the defect. That action was entirely reasonable, although it has not been successful.
I am not persuaded that anything has been advanced to depart from the general principle, which Parliament has put in place in s.570, that parties to these proceedings should bear their own costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 11 September 2013

CORRECTION

“Siebert” has been replaced with “Sibert”.