Timming v Royal Melbourne Institute of Technology
[2025] FedCFamC2G 403
•20 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Timming v Royal Melbourne Institute of Technology [2025] FedCFamC2G 403
File number: MLG 1326 of 2024 Judgment of: JUDGE SYMONS Date of judgment: 20 March 2025 Catchwords: PRACTICE AND PROCEDURE – industrial law –– where the applicant commenced proceeding in this Court alleging contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) – where at time of application there was an extant complaint in the Australian Human Rights Commission – where AHRC complaint was later withdrawn by applicant – where respondents seek dismissal of Court proceeding to the extent that conduct pleaded is substantially the same as conduct identified in the AHRC complaint – whether s 734(1) of the FW Act is engaged in relation to this conduct – whether there is any jurisdictional impediment to the applicant commencing a fresh application in this Court – dismissal application allowed – leave granted to the applicant to commence fresh general protections application out of time Legislation: Australian Human Rights Commission Act 1986 (Cth), ss 46PH, 46PO
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth), ss 340, 351, 368, 370, 566, 567, 570, 734
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190
Industrial Relations Act 1988 (Cth)
Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Cavar v Green Gate Management Services Pty Ltd [2017] FCA 471
Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358
Deam v Starlight Children’s Foundation Australia [2023] FCA 259
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of last submissions: 29 November 2024 Date of hearing: 30 October 2024 Place: Melbourne Counsel for the Applicant: Mr P Jeffreys Solicitor for the Applicant: Hope & Co Lawyers Counsel for the Respondents: Ms R Sweet KC and Mr A Crocker Solicitor for the Respondents: Lander & Rogers ORDERS
MLG 1326 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANDREW TIMMING
Applicant
AND: ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY
First Respondent
JULIE COGIN
Second Respondent
EMMA SHERRY
Third Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The overlapping claims – being the claims pleaded at paragraphs [233], [234], [242], [243], [245], [255], [271], [272], [274], [283], [284] and [286] of the applicant’s statement of claim dated 16 April 2024 and accepted for filing on 17 May 2024 – be dismissed.
2.The applicant file a Notice of Discontinuance within two business days of receiving a sealed copy of these orders.
3.Within two business days of the Court notifying the applicant of acceptance of the filing of the Notice of Discontinuance, the applicant commence a new proceeding by lodging documents in substantially the same form as the following documents filed in this proceeding:
(a)Application – Fair Work Division dated 10 May 2024, as accepted for filing on 17 May 2024;
(b)Certificate (s 368 Fair Work Act 2009) dated 2 April 2024, as accepted for filing on 17 May 2024; and
(c)Statement of claim dated 16 April 2024, as accepted for filing on 17 May 2024.
4.Leave be granted pursuant to section 370(a)(ii) of the Fair Work Act 2009 (Cth) for the applicant to file the new proceeding out of time.
5.On or before 10 April 2025, the respondents file and serve a response and defence to the new proceeding.
6.The new proceeding be listed for Directions on 16 April 2025 at 9:30am before Judge Symons, to be conducted by Microsoft Teams.
7.The costs of this proceeding are reserved and are taken to be the costs of the new proceeding.
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 SYMONS:
INTRODUCTION
This proceeding was commenced by the applicant, Professor Timming, on 10 May 2024 by the filing of an application and statement of claim that alleges contraventions of ss 340 and 351 of the Fair Work Act 2009 (Cth) (FW Act) by the respondents (GP Court application).
This judgment is concerned with an application in a proceeding filed on 26 August 2024 by which Professor Timming asks the Court to make orders that he be allowed to file a notice of discontinuance which would pave the way, he says, for him to then commence a new proceeding by lodging documents in substantially the same form as those already filed in the extant proceeding.
The respondents oppose the making of these orders. Instead, they seek orders including that certain claims identified in the GP Court application be dismissed. The position of the respondents was formalised in an application in a proceeding filed on 1 November 2024.
To understand how this unusual situation has arisen, it is necessary to set out some background to the proceeding. Before doing so, I note that the parties, in making and resisting the competing applications, relied on the following documents:
For the applicant:
·His application dated 10 May 2024 (accepted for filing on 17 May 2024);
·His statement of claim dated 16 April 2024 (accepted for filing on 17 May 2024);
·His application in a proceeding filed 26 August 2024;
·An affidavit of solicitor Jonathan Lean filed on 26 August 2024;
·His outline of submissions filed on 28 October 2024;
·His outline of submissions filed on 15 November 2024.
For the respondents:
·Their response filed on 13 July 2024;
·The defence of the third respondent, Ms Sherry, filed on 13 July 2024;
·The defence of the first respondent, Royal Melbourne Institute of Technology (RMIT), and the second respondent, Ms Cogin, filed on 13 July 2024;
·An affidavit of solicitor Cristina Trafficante filed on 3 September 2024;
·Their outline of submissions filed on 28 October 2024;
·Their application in a proceeding filed on 1 November 2024;
·Their outline of submissions filed on 29 November 2024.
BACKGROUND
Professor Timming was hired by RMIT in 2020. He held the position of Professor of Management and, later, the fixed term position of Deputy Dean, Research & Innovation. RMIT terminated Dr Timming’s employment on a date in late 2023 or early 2024.
On 23 October 2023, without legal representation and before the termination of his employment, Professor Timming made a complaint to the Australian Human Rights Commission that RMIT had discriminated against him because of his mental disability (AHRC complaint). The AHRC complaint covered conduct that occurred across the period 26 May to 23 October 2023, and which was alleged to involve unlawful discrimination. The conduct can be broadly described as involving (relevant conduct):[1]
·The “8 June placement of Dr Timming on forced extended leave”;
·The “8 June directions”; and
·The “1 August termination of Dr Timming’s Deputy Dean position”.
[1] See Applicant’s Outline of Submissions filed 28 October 2024, [7] and Annexure JL-1 to the Affidavit of Jonathan Lean dated 26 August 2024.
On 22 December 2023, Professor Timming commenced a general protections claim involving dismissal in the Fair Work Commission. The claim did not resolve at conciliation, and on 2 April 2024, the Commission issued a certificate pursuant to s 368 of the Act.
On 15 April 2024, Professor Timming sought to amend by email the AHRC complaint to add Ms Cogin as an individual respondent.
On 16 April 2024, Professor Timming’s solicitors attempted to file a general protections application in this Court, which application was not accepted for filing.
On 10 May 2024, Professor Timming’s solicitors again sought to file his general protections application. However, by this time, the application was made outside of the 14-day time period prescribed in s 370(a)(ii) of the FW Act.
On 18 June 2024, the Court made orders (by consent) that the GP Court application be accepted for filing out of time, thereby preserving the original filing date of 10 May 2024.
Importantly, as at 10 May 2024, the AHRC complaint was still on foot.
On 2 August 2024, Professor Timming’s solicitors advised the respondents that the AHRC complaint had been withdrawn.
The respondents contend despite this, that the maintenance of two proceedings at the same time has jurisdictional consequences because of the operation of s 734(1) of the FW Act. This provision, which appears in Subdiv C of Div 3 of Part 6-1 of the FW Act, states:
General rule
1)A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if:
a) an application or complaint under an anti-discrimination law or the Australian Human Rights Commission Act 1986 has been made by, or on behalf of, the person in relation to the conduct; and
b) the application or complaint has not:
i.been withdrawn by the person who made the application; or
ii.failed for want of jurisdiction.
The respondents’ position is that the combined effect of ss 566, 567 of the FW Act (which confer jurisdiction on the Court in respect of civil matters arising under the FW Act) and s 734(1) of the FW Act, is that the relevant conduct, which is said to be common to both proceedings, is not presently before the Court with the result that the Court has no jurisdiction to deal with it.
THE APPLICANT’S PROPOSAL TO START A “FRESH” GP COURT APPLICATION
The applicant’s submissions on his proposed form of orders
Professor Timming joins issue with the position taken by the respondents as to the application of s 734(1) of the FW Act to the GP Court application, either in relation to the relevant conduct (as it has been pleaded in the statement of claim) or more generally.
In short, his position is that s 734(1) did not prevent him from making the GP Court application because it was not “a general protections court application in relation to conduct that does not involve the dismissal of the person”. This was said to follow from his characterisation of the GP Court application as one that involved the dismissal of Professor Timming by RMIT, which meant it could only be prohibited under Subdiv B (not Subdiv C) of Div 3 of Part 6-1 of the FW Act. Professor Timming also submitted that the position was further reinforced because the underlying material facts of the AHRC complaint and GP Court application were not substantially the same (cf Deam v Starlight Children’s Foundation Australia [2023] FCA 259).
Professor Timming submits that his proposed form of orders is designed to overcome the jurisdictional uncertainty that “clouds” the GP Court application and would best achieve the overarching purpose (see Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190(1)). This is because:
(a)first, the orders will facilitate the just resolution of all parts of Professor Timming’s claims, rather than only part of them. The alternative approach – the deletion of the impugned allegations – would risk those important parts of his claims being left undetermined; and
(b)second, the orders, by curing the need for a dispute over the Court’s jurisdiction, will provide a quick, inexpensive and efficient pathway to Professor Timming’s case moving towards substantive resolution.
Professor Timming submits that given that the AHRC complaint has now been withdrawn, the recommencement of the GP Court application would not undermine the policy underlying Pt 6-1 of the FW Act. In particular, there is no longer any prospect of multiple litigation, or multiple remedies, in respect of the same conduct. It is the intention of Professor Timming to pursue the claims of disability discrimination arising from the relevant conduct in this Court alone.
Submissions of the respondents in opposition to the orders sought by the applicant
The respondents submit that the orders sought by Professor Timming reflect a solution that tries to avoid the operation of the FW Act.
As I understood the submissions of the respondents, the position they essentially adopted was that once circumstances that engaged s 734(1) of the FW Act had occurred – thereby raising a jurisdictional impediment to the commencement and maintenance of the GP Court claim – the policy underlying that provision and the multiplicity of proceeding provisions generally, would continue to be subverted, even if, as the respondents’ senior counsel conceded, “it’s true to say that as we stand before your Honour today there is no overlapping….so there is no multiple proceedings”[2] and where the orders proposed by the applicant would involve the making of a fresh GP Court application that was not burdened by a pre-existing overlapping proceeding.
[2] T12, lines 29-31.
In support of this position, the respondents relied on the decision of Mortimer J (as her Honour then was) in Deam. The respondents submitted that Deam supported the conclusion that once s 734(1) had been engaged, it could not be disengaged. The respondents submitted that given the prohibitory effect of the provision, the only course open to the Court was to dismiss the GP Court application as it concerned the related conduct.
As far as Professor Timming sought to invoke this Court’s overarching purpose as justifying the approach for which he contended, the respondents submitted that such purpose must be applied within a statutory framework that included s 734 of the FW Act.
FURTHER ORDERS
During the hearing, it became clear that the parties took different views as to the matters the Court was required to deal with in determining Professor Timming’s application in a proceeding. While Professor Timming acknowledged that he would require an extension of time to file any new GP Court application (assuming there was jurisdiction to do so), he submitted that such application could be held over pending the Court’s decision on his proposed form of orders. The respondents instead addressed the “out of time” question in their written submissions and in oral argument on the basis that it was integral to any decision made by the Court as to whether Dr Timming should be permitted to prosecute claims about the relevant conduct in this Court.
It also emerged during the hearing, that part of the relief sought by the respondents, apart from dismissal of Professor Timming’s application in a proceeding, was that the Court, if satisfied that s 734(1) was engaged, make an order dismissing the GP Court application in respect of the relevant conduct. The application was made orally by senior counsel for the respondents but in circumstances where Professor Timming had not been on notice that such application was pursued, I made orders for the filing of a formal application for dismissal by the respondents and orders that facilitated the exchange of submissions by the parties addressing the dismissal application and s 370(a)(ii) of the FW Act.
In compliance with these orders the respondents filed an application in a proceeding in which the following orders were sought:
1.Pursuant to s 141 of the Federal Circuit and Family Court Act 2021 (Cth), a declaration that s 734 of the Fair Work Act 2009 (Cth) applies to the Overlapping Claims in the statement of claim dated 16 April 2024.
2.The Overlapping Claims be dismissed.
3.Costs reserved.
4.Such further or other orders as the Court thinks fit.
The respondents identified the overlapping claims as being those contained in paragraphs [233], [234], [242], [243], [245], [255], [271], [272], [274], [283], [284] and [286] of the statement of claim dated 16 April 2024.
On 15 November 2024, Professor Timming filed a supplementary outline of submissions and on 29 November 2024, the respondents filed a set of responsive submissions.
The applicant’s further submissions
No doubt as a response to the respondents’ dismissal application, Professor Timming engaged more directly in his supplementary submissions with the question of jurisdiction.
He argued more forcefully that the respondents’ construction of s 734(1) of the FW Act was misconceived, because it failed to appreciate that his GP Court application was made in relation to conduct that does involve his dismissal and for this reason, was not an application of the kind referred to in the chapeau to s 734(1).
Professor Timming made the following submissions at [7]-[13] of his supplementary submissions (footnotes omitted):
Div 3 of Pt 6-1 of the FW Act is split into, relevantly for present purposes, subdiv B (headed “Applications and complaints relating to dismissal”) (comprising ss 725-733), and subdiv C (headed “General protections applications that do not relate to dismissal”) (comprising s 734). The focus of each of the provisions in those subdivisions is the relevant application or complaint. There is no reference in the statutory language within those subdivisions to the individual claims that comprise such an application or complaint.
Within those subdivisions, the Respondents rely on s 734(1). The subject of that provision is the “conduct” in relation to which a “general protections court application” is made. The latter term is defined as “an application to a court under Division 2 to Part 4-1 for orders in relation to a contravention of [Pt 3-1]” (FW Act, s 368(4). Such an application is a singular act taken by a person entitled to relief under the FW Act (FW Act, ss 539(2) item 11). Although such an application may comprise multiple claims, there are not multiple applications for the purposes of s 734(1).
Here, Professor Timming made one general protections court application…this proceeding was started by filing an application in accordance with the approved form, as required by r 4.01(1) of this Court’s rules. As Professor Timming’s application involved his dismissal, he filed Form 2 (headed “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection), as required by r 30.04. He did not file Form 4, as would have otherwise been required by r 30.06 if his application had involved only non-dismissal allegations.
Next, section 734(1), having identified the relevant general protections application that was made, contemplates that the application will be “in relation to” certain “conduct”, and then proceeds to ask whether that conduct “involve[s] the dismissal”.
At this step, the respondents seek to read s 734(1) as requiring the Court to divide the applications into each individual instances of “conduct”, and then enquire whether any one of those instances relate to conduct other than the dismissal (and, if the answer is “yes” in any instance, then, as the respondents’ construction goes, the chapeau to s 734(1) is satisfied to that extent). But that approach strains the language of s 734. The correct approach, consistent with that adopted in Deam (at [85], [98]-[102]), is to assess “the conduct” in relation to which the application is made as a whole.
Here, the range of “conduct” that Professor Timming’s application was made “in relation to” is appropriately characterised as the adverse action alleged by Professor Timming to have contravened Pt 3-1. Under the Statement of Claim, that includes 15 forms of non-dismissal adverse action ranging from late 2022 to February 2024, in addition to the dismissal itself on 15 February 2024. That range of conduct “involves” the dismissal.
On that basis, Professor Timming’s application could only be prevented by Div 3 of Pt 6-1 in the present case, not under subdiv C, but under subdiv B, being the subdivision that Parliament intended to operate, where applicable, in a case such as this. Under subdiv B, s 725 would operate to prevent Professor Timming’s application – being “an application or complaint…in relation to the dismissal” – if one of the applications or complaints referred to in ss 726-732 had already been made (and not withdrawn or failed for want of jurisdiction. However, none of those provisions applied here. Most relevantly, the prior AHRC complaint was not captured by s 732 (“Applications and complaints under other laws”) because it was not made “in relation to the dismissal”.
Professor Timming submitted that the decision of Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358 (Cavar first instance) at [50]-[52] (Judge Cameron), which was upheld on appeal by Flick J in Cavar v Green Gate Management Services Pty Ltd [2017] FCA 471 (Cavar appeal) at [16]-[22] should be treated with caution as far as it stood for the principle that one general protections application may comprise both claims in relation to dismissal, and claims that do not involve dismissal.
This was because the commentary in those decisions regarding s 734(1) was not binding or persuasive on the basis that s 734 was not relied upon by the respondent, Green Gate Management, as a basis for dismissal of the human rights proceedings. Relatedly, the decisions were reached without the benefit of full and proper assistance from counsel on the construction of s 734; Ms Cavar was self-represented and Green Gate Management did not rely on the provision. It was also the case that the reasons of Flick J were published in response to an application for leave to appeal, rather than a substantive appeal.
The respondents’ further submissions
The respondents invited the Court to reject Professor Timming’s submissions on the proper construction of s 734 on the basis that his efforts to disaggregate subdivision B and subdivision C were contrary to principles applied and then endorsed in Cavar first instance and Cavar appeal, respectively and otherwise not supported by authority, including anything said by Mortimer J in Deam.
As to the first point, the respondents submitted that in Cavar appeal, Flick J found that Ms Cavar’s general protections claim offended both subdivision B (insofar as it related to dismissal) and subdivision C (insofar as it did not). This was clear from [22] in which his Honour said:
On the facts of the present case, Ms Cavar was impermissibly seeking to separately pursue her “human rights proceeding” claims where her complaint “in relation to the dismissal” fell within ss 725, 728 and 732; her complaints other than in relation to her dismissal fell within s 734.
The respondents submitted that while some applications for leave might not engage directly with the merits of the decision below, the reasons of Flick J for refusing leave involved an explicit endorsement of the first instance judge’s reasons (Cavar appeal at [16]-[17]). His Honour positively reached the conclusion that subdivisions B and C are capable of simultaneous operation as a statutory bar to general protections claims involving both dismissal, and non-dismissal, complaints. The decision in Cavar appeal was at the very least, considered dicta from the Federal Court, from which this Court should not depart.
As to the second point, the respondents submitted that Professor Timming’s reliance on Deam was misplaced. In that decision, Mortimer J did not have to grapple with the interplay between subdivisions B and C, as the claim before her Honour did not involve dismissal. Furthermore, observations by her Honour about the intended legislative effect of Division 3, Part 6-1 supported the respondents’ construction. For example, at [102(a)], where Mortimer J observed that “the whole point of ss 725-734 is that the same conduct can be characterised differently so as to fit within different legislative provisions, although in reality advancing a claim about the same conduct”.
The respondents submitted at [10] of their written submissions:
Worked to its logical conclusion, the applicant’s construction would permit a general protections court application that relates to dismissal to used as a ‘stalking horse’ to avoid the statutory bar being engaged for other non-dismissal related claims. That is, an applicant could commence a general protections court application in relation to dismissal, which contained non-dismissal general protections allegations, and advance claims in relation to those same non-dismissal general protections allegations under other State or Federal legislation and in other forums. That construction is fundamentally at odds with the ‘whole point’ of Division 3, Part 6-1.
RESOLUTION
Dismissal application
Although Professor Timming filed his application in a proceeding first in time, the order of resolving matters that commends itself to me is to firstly consider the fate of the extant GP Court application before turning to consider, if necessary, Professor Timming’s proposal to bring a “fresh” proceeding.
Resolution of the first issue requires consideration of the operation of Division 3, Part 6-1 of the FW Act, and particularly the intended effect of s 734(1), which has been reproduced at [16] above.
Having considered the respective submissions of the parties, I am satisfied that the provision (and the scheme as a whole) operates in the manner for which the respondents contend. In the end, the plain language of s 734(1) as well as the mischief to which it (and the scheme as a whole) is directed, provides the answer. It is also supported by the reasoning in both Cavar first instance and Cavar appeal.
Turning to the provision itself, the chapeau to s 734(1) of the FW Act operates on a “general protections court application” which is defined in s 368(4) to mean “an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part”. This “Part” being Part 3-1 General Protections. Therefore, the term does not distinguish between, and is capable of comprehending, both applications for relief directed at contraventions that involve dismissal and contraventions that do not involve dismissal.
Section 734(1) is however qualified by the addition of the words “in relation to conduct that does not involve the dismissal of the person”. It is these words that determine whether the general protections court application (which may or may not concern dismissal) is potentially caught by the provision.
The same emphasis on “the conduct” carries through to the application or complaint made under anti-discrimination law or the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). It enables a comparison to be made between the non-dismissal aspects of the parallel proceedings and to prevent their continuance in the second (later in time forum) but only to the extent that there is a coincidence of subject matter. This exercise invariably involves a dissection of the specific conduct pleaded in the different jurisdictions to determine the degree of overlap.
The practical consequences of embracing Professor Timming’s construction of the provision are not simply academic. Experience tells us that many general protections dismissal cases also concern conduct in the lead-up to the dismissal that is alleged to offend the general protections provisions of the FW Act. If Professor Timming was correct in his construction, these cases could continue in at least two forums, to the extent that they concerned the anterior (non-dismissal) conduct. This is plainly antithetical to the scheme of Div 3 of Part 6-1 which is to preclude multiple litigation concerning substantially the same conduct.[3]
[3] Deam at [93].
I am also not persuaded that anything said by Mortimer J in Deam suggests to the contrary. The analysis that took place was responsive to the circumstances of that case and the apparent symmetry between the AHRC complaint and the Federal Court application. It was on that basis that her Honour considered whether they each involved “the same or substantially the same conduct” although this exercise was still guided by an examination of the pleadings and a table prepared by the respondent, Starlight. It was also the case that Ms Deam had proposed that it would be open to the Court to strike out the general protections claim to the extent of any overlap. It was not suggested that this would be an impermissible course.
Given my conclusions about the proper construction of s 734(1) it follows that it is engaged in this case to the extent that the GP Court application pleads non-dismissal conduct that is the same or substantially similar to non-dismissal conduct pleaded in the AHRC complaint.
I understood there to be consensus as to the identity of the “relevant conduct” or “overlapping” claims (see [28]-[29] above). I accept that these claims appear at paragraphs [233], [234], [242], [243], [245], [255], [271], [272], [274], [283], [284] and [286] of the applicant’s statement of claim. I find therefore that the matters pleaded in these paragraphs offend s 734(1) of the FW Act and it is therefore appropriate that I make orders that the “overlapping claims” (as defined) be dismissed.
The respondents also sought relief in the form of a declaration as to the status of the “overlapping claims”. In circumstances where it will be apparent from these reasons why I consider that the overlapping claims are jurisdictionally barred and where they will be identified in the orders made, I can discern no further utility that would be served by the making of a declaration and decline to make one.
Should Professor Timming be permitted to bring a “fresh” general protections application?
That is not the end of the matter.
Professor Timming seeks orders that would permit him to bring a fresh proceeding in substantially the same form as the extant GP Court application. The question is whether there is any jurisdictional impediment to him being able to do so?
The parties’ arguments have been rehearsed above. They operate with different outcomes. If Professor Timming is correct, he could proceed with all claims against the respondents in a new proceeding. If the respondents are correct, Professor Timming will be prevented from prosecuting the overlapping claims, despite the fact they are no longer the subject of extant proceedings and have not previously been litigated to final determination.
Ultimately, I am persuaded that the argument of Professor Timming should be accepted. This is because I reject the submission of the respondents that the findings and observations recorded in Deam prevent an applicant from bringing a “fresh” proceeding in circumstances where the conditions that had previously engaged s 734(1) of the FW Act are no longer present.
To understand how I have arrived at this conclusion, it is necessary to provide some context around the decision in Deam.
In that case, Ms Deam had sought leave under s 46PO(3A)(a) of the AHRC Act to bring a complaint in the Federal Court alleging unlawful discrimination contrary to the Disability Discrimination Act 1992 (Cth) (DDA). Leave was required because Ms Deam’s AHRC complaint had been terminated under s 46PH(1)(c) of the AHRC Act.
Starlight had opposed leave, and had sought orders that Ms Deam’s FW Act claims against it, which were the subject of a proceeding filed in the Federal Court after the AHRC proceeding, be summarily dismissed on the basis that they were, in substance, general protections claims within the scope of Chapter 3 and engaged s 734(1)(b) of the FW Act, because of their intersection with the AHRC proceeding.
The Court refused Ms Deam leave to make an application alleging unlawful discrimination, principally on the basis that the DDA claims were without merit. However, the Court also went on to consider Starlight’s application for summary dismissal of the FW Act proceeding. The question posed by the Court was the ability of Ms Deam to continue her FW Act claim against Starlight in the face of s 734 of the FW Act.[4]
[4] Deam at [77].
Relevant to this matter, Mortimer J between [82] to [92] reasoned as follows (emphasis added):
82. The provisions immediately prior to s 734 in the FWA, beginning with s 725, set out a similar scheme to s 734 in respect of claims relating to the dismissal of an employee. Both s 725 and s 734 appear in Div 3 of Pt 6.1 of the FWA, entitled “Preventing multiple actions”. The general rule is set out at s 725:
…
84. In the case of ss 725-732, and as is the case in s 734, the prohibitions do not apply in two circumstances; namely withdrawal of a claim or failure “for want of jurisdiction”. That is because, evidently, if either of those circumstances applied, there would not be multiple actions on foot. The earlier provisions and s 734 are part of one legislative scheme under Div 3 of Pt 6.1, all with the same objective, and all expressed in similar terms.
85. Section 734(1) requires a focus on “the conduct” alleged in the general protections court application on the one hand, and the “conduct” alleged in an application or complaint “under anti-discrimination law”. The same focus, but in reverse, is required by s 734(2).
86. In other words, as the parties accepted, the legislative intention revealed by the two limbs of s 734 is that in circumstances not caught by the prohibition in s 725, a person will only be able to seek final resolution of either their claim under anti-discrimination law or their general protections claim.
…
88.At first blush it might be thought s 734 evinces an intention that a person can elect which of the two jurisdictional bases they wish to pursue. All these provisions (including ss 726-732) contain an exception concerning the withdrawal of a claim: see relevantly s 734(1)(b)(i) and s 734(2)(b)(i). On closer inspection, however, in my opinion, this is not how the provisions are intended to operate.
89.Both s 725 and s 734 operate on the “making” of an application or complaint. That is, they fix the point in time when the prohibition is engaged as the time when a person makes the second (ie the multiple) application or complaint. It is by this point – the making of the second application – that the first complaint or application must have been withdrawn. The provisions use the past tense for “withdrawn”.
90.As I observed during argument, somewhat arbitrarily and unfairly, these prohibitions assume some knowledge in the putative applicant of their existence. For example, a person in Ms Deam’s position would need to be aware, before proceeding to have the AHRC finalise her complaint (it being impossible to withdraw it after it had been finalised/terminated) that the continued existence of that AHRC complaint would preclude her making a general protections court application. That may be well and good if a person is legally advised throughout the AHRC process. If they are not, then the prohibition may operate somewhat arbitrarily and unfairly, in the sense of not giving a person a choice to withdraw the claim that was first in time so as to continue with the one that is second in time. Nevertheless, the legislative intention is in my opinion that there be a prohibition on a second claim being commenced.
91.I have given some consideration to whether s 734 (and therefore also the earlier provisions relating to dismissal) could be construed as allowing a person to elect which claim should be continued. The text and context is however in my opinion intractable. The provisions operate on the facts as at the time of commencement of the claim that is second in time.
92.Ms Deam’s general protections court application was filed on 10 August 2022. Her AHRC complaint was terminated on 15 September 2022. That means there was, in hindsight, a month or so where Ms Deam could have withdrawn her DDA complaint before a decision was made by the AHRC. She could have withdrawn her DDA complaint at the same time she made her general protections court application, and this would have disengaged s 734. In making that observation, I do not criticise Ms Deam at all – these provisions are complex and as I have observed, it appears the AHRC itself was not aware of the way they might operate.
It is clear from her Honour’s reasons that the mischief to which s 734 (and ss 726-732) is directed is two-fold. First, the provision operates once engaged to prevent the simultaneous prosecution of applications or complaints about substantially the same conduct, the second in time yielding to the first. Second, it operates so that conduct that has been litigated to finality in one forum, cannot be litigated subsequently in a second forum. Furthermore, as I have highlighted in the passages extracted above, the provision is engaged at the time when a person makes the second application or complaint.
In my view, nothing said in Deam suggests that the approach reflected in Professor Timming’s proposed orders would be contrary to the language of s 734 (including its intractable character) or the mischief to which it is directed. Self-evidently, if Professor Timming was to file a “fresh” proceeding tomorrow (and assuming the maintenance of the status quo) it would not involve the litigation of conduct that had already been litigated to finality in a different forum and neither would it involve the simultaneous prosecution of complaints about substantially the same conduct.
I find in these circumstances that there is no jurisdictional impediment to the filing by Professor Timming of a “fresh” GP Court application that includes claims about the relevant conduct.
Should Professor Timming have leave to bring a “fresh” GP Court application out of time?
Professor Timming’s submissions
Professor Timming acknowledged that any “fresh” GP Court application could only be commenced if the Court was to grant leave to file the proceeding outside of the time permitted in s 370(a)(ii) of the FW Act.
In his supplementary submissions he submitted that leave should be granted for the following reasons:
First, Professor Timming submitted that the relevant time period against which the delay was to be evaluated commenced at earliest on 17 May 2024 when the initiating documents were accepted for filing or at latest, 18 June 2024, when the respondents consented at a directions hearing to the GP Court application dated 10 May 2024 being accepted for filing out of time. If, against this submission, an explanation for delay across this period was required, it was supplied on the basis that efforts were first made to lodge the initiating documents on 16 April 2024 but had to be refiled due to a correction to the application form. The respondents’ consent reflected a view taken that genuine efforts had been made to commence the proceeding within time.
Second, Professor Timming submitted that the relevant period was amenable to evaluation across three sub-periods which were described as follows.
The first period (between 15 May and 28 June 2024) – which Professor Timming characterised as involving his seeking clarification from RMIT (and from 23 May, all respondents) on the impact of the asserted jurisdictional issue on his GP Court application (in contrast to the impact on his AHRC complaint).
This was said to be supported by the following chronology:
·On 15 May 2024, RMIT asked for confirmation as to whether Professor Timming pressed his AHRC complaint;[5]
·On 24 May 2024, and again on 3 and 24 June 2024, Professor Timming disputed that Part 6-1 of the FW Act applied, but offered to withdraw his AHRC complaint to avoid any jurisdictional dispute;[6]
·Despite opportunities to disclose their hand, the respondents did not express “their considered position” on their objection to the jurisdiction of the GP Court application and did not raise s 734(1) as the applicable provision until 28 June 2024.[7]
[5] Exhibit JL-1 to the affidavit of Jonothan Lean dated 26 August 2024 (Lean affidavit).
[6] Exhibit JL-1 to the Lean affidavit.
[7] Exhibit JL-1 to the Lean affidavit p 61-62.
The second period (between 28 June and 13 July 2024) – which Professor Timming characterised as involving his seeking clarification of, and himself proposing, the remedy to the jurisdictional objection in the period prior to the filing of the respondents’ defences.
This was said to be supported by the following chronology:
·On 1 July 2024 and 10 July 2024, Professor Timming asked for confirmation of the paragraphs in his statement of claim that the respondents sought to impugn;[8]
·The respondents did not provide a response to these requests and instead filed their defences on 13 July 2024 without engaging.
[8] Exhibit JL-1 to the Lean affidavit p 63 and 71-74.
Professor Timming submitted that given the respondents had formalised their jurisdictional objections in their defences (reflecting a final view about their position on jurisdiction), the appropriate course at that time would have been to bring the dismissal application that was now before the Court. Instead, the application had been made at the Court’s invitation at the October hearing.
The third period (between 13 July and 26 August 2024) – which Professor Timming characterised as involving him foreshadowing the taking of “proactive steps” which led ultimately to his application in a proceeding.
Professor Timming submitted that after receiving the defences, he had promptly foreshadowed the possibility of discontinuing this proceeding in correspondence sent on 18 July 2024,[9] but in order to obtain instructions, requested confirmation that should the impugned paragraphs be deleted, the respondents would no longer raise any broader jurisdictional objection. Professor Timming described the respondents’ response to this question as “evasive” (referring to correspondence sent on 25 July 2024[10], and the failure to provide confirmation at the October hearing).
[9] Exhibit JL-1 to the Lean affidavit p 78-81.
[10] Exhibit JL-1 to the Lean affidavit p 82-83.
Professor Timming submitted that the attitude of the respondents “forced” him to propose consent orders for the recommencement of the proceeding and otherwise foreshadow his application, which he brought promptly after the respondents confirmed their objection on 16 August 2024.[11] Professor Timming submitted that his conduct was commensurate with the way that an applicant should act in the face of jurisdictional uncertainty under Pt 6-1.
[11] Exhibit JL-1 to the Lean affidavit p 97-98.
Turning to the question of prejudice, Professor Timming submitted that the Trafficante affidavit did not point to any prejudice to the respondents in having to respond to the overlapping claims. This was said to reflect the position that the respondents had known that the events underlying the overlapping claims had been in contest since May 2024. It was also the case that the proceeding was in its earlier phase: no discovery had occurred, and no evidence filed. Furthermore, the respondents would only have to re-file their defences with minor amendments.
The respondents’ submissions
The respondents submitted that the following considerations should satisfy the Court that Professor Timming had failed to provide an acceptable explanation for the delay in seeking to file a “fresh” GP Court application.
First, the respondents’ solicitors put Professor Timming’s solicitors on notice of the statutory bar in Part 6-1 on 15 May 2024.[12] Professor Timming contended (and still contends) that the overlapping claims were not (and are not) statute barred. He sought an extension of time to file the GP Court application which was granted (by consent) one month later. At no time in the intervening period did Professor Timming withdraw the overlapping claims.
[12] Exhibit JL-1 to the Lean Affidavit, p 18.
Second, over the weeks that followed, Professor Timming (by way of his solicitors’ correspondence) offered to “consider” withdrawing the AHRC complaint subject to the respondents not maintaining any jurisdictional objection. As has already been determined, the respondents could not consent to that course.
Third, on 10 July 2024, some two months after being notified of the statutory bar, Professor Timming emailed the AHRC seeking to withdraw his AHRC complaint. The email stated, among other things, “[b]y way of background, in the last week or so, RMIT’s lawyers have for the first time advised that they intend to seek to strike out parts of my general protections claims filed in the Federal Circuit Court because they say my Court claim and my AHRC complaint overlap”.[13] The respondents submitted that the position articulated in this email was difficult to square with the respondents’ correspondence of 15 May 2024.
[13] Exhibit JL-1 to the Lean Affidavit, p 67.
The respondents submitted that the effect of Professor Timming’s explanation for delay was that he sought to shift blame to them. Instead, had he withdrawn his AHRC complaint prior to 18 June 2024 (when his application was accepted for filing out of time), the statutory bar would not have been engaged. The respondents submitted that Professor Timming had instead “doubled down” on his position that the overlapping claims fell within jurisdiction and had chosen to “run the gauntlet”.
Extension of time principles
Section 370(a)(ii) of the FW Act requires that an application in this Court be commenced within 14 days after the day a certificate under s 368(3)(a) is issued. However, the Court has the discretionary power to extend time if it considers it appropriate to do so.
The principles that the Court applies when considering whether to extend time are not “fixed”. However, the factors identified by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 in the context of considering an application made under a provision of the Industrial Relations Act 1988 (Cth) that is similar to s 370(a)((ii) have been regularly transposed and applied to this jurisdiction.
The principles identified in Brodie-Hanns are:
(1)Special circumstances are not necessary but the Court must be positively satisfied that the period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
(2)Action taken by the applicant to contest the termination, other than applying under the FW Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3)Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
(4)The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
(5)The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6)Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the court’s discretion.
The Court can also consider any other matters it considers relevant and which the parties raise in support of, or in opposition to, the request for an extension of time.
The extension of time should be granted
The unusual nature of this proceeding and its evolution through the Court has as one consequence, that several of the considerations that might ordinarily operate against the granting of an extension of time assume less significance than might otherwise be the case.
To begin with, it is self-evident that Professor Timming has at all relevant times through his actions in this Court signalled that he contests not only the termination of his employment, but the various antecedent decisions and actions taken by RMIT that are the subject of the GP Court application. This consideration operates in favour of the granting of an extension of time.
Relatedly, although the question of jurisdiction has preoccupied the parties and slowed the procedural progression of the GP Court application, it is nonetheless the case that the respondents have since 16 April 2024, when attempts were first made to file the statement of claim, been in a position to understand the claims against them, to take advice as to how such claims might be defended and to formalise their respective positions. If a “fresh” GP Court application was filed, the steps taken to date by the respondents would have continued utility and any amendment required to the respondents’ pleadings would necessarily be modest.
The question of merit of the GP Court application received little attention. I accept the argument of Professor Timming that without the benefit of any substantive evidence at this early stage, the Court should be satisfied that there is prima facie merit in the GP Court application generally and the overlapping claims, particularly.
Turning then to the point of greatest contention, being the adequacy of the explanation for delay offered by Professor Timming, I consider that the analysis undertaken by his representatives and reflected in his further submissions can be largely accepted.
Although there is of course some nuance in the correspondence exchanged between the parties’ legal representatives that is missed in the characterisation adopted by Professor Timming, from my review of the material annexed to the Lean affidavit and the Trafficante affidavit, the following picture emerges across the relevant period, which the parties appear to agree commences on around 15 May 2024 and ends with the filing of the application in a proceeding on 26 August 2024.
First, I accept that in the correspondence sent on their behalf on 15 May 2024, the respondents first raised the spectre of a jurisdictional objection by reference to Part 6-1 of the FW Act. The correspondence did not however explain the consequences of any such objection for either the AHRC complaint, or the GP Court application save for reserving the right to the respondents to seek that the GP Cout application be struck out and/or the AHRC complaint closed.
Second, reflecting the lack of clarity, Professor Timming’s solicitor on 24 May 2024 sought clarification as to whether any of the respondents intended to maintain any jurisdictional objection to the AHRC claim or the GP Court application. In the same correspondence, the solicitor indicated that Professor Timming was willing to consider withdrawing the AHRC complaint.
Third, the response provided by the respondents on 2 June 2024, in my opinion, did lack clarity as to the consequences of any withdrawal of the AHRC complaint for the GP Court application. The lack of clarity was not improved by the correspondence sent on 14 June 2024 and I accept the submission of Professor Timming that the respondents did not provide a clear and comprehensive articulation of their position with respect to jurisdiction and the consequences for both extant proceedings until 28 June 2024. Indeed, the correspondence sent on this date was the first that notified Professor Timming of the respondents’ “considered position”[14] and recorded arguments that closely resembled those that were made in this proceeding. Complete clarity came with the filing of the respondents’ defences on 13 July 2024 in which specified paragraphs were objected to on the basis that “they are beyond jurisdiction and are liable to be struck out”.
[14] Exhibit JL-1 to the Lean affidavit p 61-62.
Fourth, the proposal which was the subject of Professor Timming’s application in a proceeding was first foreshadowed on 18 July 2024 and then put formally in correspondence sent on Professor Timming’s behalf to the respondents on 2 August 2024. On 16 August 2024, the respondents communicated to Professor Timming that they would not agree to the course proposed by him, including because they maintained the view that it offended Part 6-1, Division 3 of the FW Act. Professor Timming filed the application in a proceeding on 26 August 2024.
Having regard to the chronology recorded above, I am satisfied that Professor Timming and those who act for him, have demonstrated an acceptable explanation for the delay in approaching the Court for orders that would facilitate the filing, out of time, of a “fresh” GP Court application.
I consider that Professor Timming (and those who act for him) took timely steps to understand the basis of the respondents’ jurisdictional objections and when satisfied as to the nature and extent of those objections and their likely or potential impact on the GP Court application, took further timely steps to conceive of and propose a set of orders that it was hoped would remove any jurisdictional impediment to the prosecution of Professor Timming’s general protections claims.
In saying this I don’t for a moment wish to be understood as criticising the position adopted by the respondents. As these reasons disclose, both sides to the proceeding hold (and held) genuine and properly based views as to jurisdiction, which, as events have transpired, have been necessary to ventilate and resolve and which concern a legislative regime whose “provisions are complex”.[15]
[15] Deam at [92].
For this reason, I am not persuaded that anything done by any party rises to the level of an unreasonable act or omission so as to engage the Court’s costs jurisdiction under s 570(2) of the FW Act.
The appropriate order to make is that costs be reserved.
In addition to making orders substantially in the form sought by Professor Timming in his application in a proceeding, I will also order that the respondents file defences in any “fresh” GP Court application by 10 April 2025. The matter will then return before me for a directions hearing.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 20 March 2025
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