Wilson v TNC Legal Pty Ltd Trading as Trewin Norman
[2021] FedCFamC2G 252
•16 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wilson v TNC Legal Pty Ltd Trading as Trewin Norman [2021] FedCFamC2G 252
File number(s): PEG 94 of 2021 Judgment of: JUDGE VASTA Date of judgment: 16 November 2021 Catchwords: PRACTICE AND PROCEDURE – Application – s. 368 certificate – not filed within 14 days – effect of s. 370 – need for an application for an extension of time – where no application is made – workplace right – complaints – application struck out Legislation: Fair Work Act 2009 (Cth) ss 340, 342, 365, 368, 370 Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 2 November 2021 Date of hearing: 5 October 2021 Place: Brisbane Solicitor for the Applicant: The Applicant making submissions in chambers on her own behalf Solicitor for the Respondents: Ms Tunney making submissions in chambers on behalf of the Respondents ORDERS
PEG 94 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARDI FITZHENRY VIVIAN WILSON
Applicant
AND: TNC LEGAL PTY LTD TRADING AS TREWIN NORMAN & CO
First Respondent
ZANE CHARLES NORMAN
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS THAT:
1.That the Application filed on 12 May 2021 be struck out.
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 VASTA
INTRODUCTION
On 12 May 2021, the Applicant, Mardi Fitzhenry Vivian Wilson, filed two documents with this Court; the first was an application in the Fair Work Division and the second was a Form 4 claim under the Fair Work Act 2009 (Cth) (“the FW Act”) alleging contravention of a general protection. The Respondents are, in effect, asking this Court to bring the proceedings to an end.
The First Respondent is a company that operates a legal firm and the Second Respondent is a director of the company and the principal solicitor of the firm. The Applicant was employed as a paralegal with the firm from 2017 until her employment was terminated when her position was made redundant.
The Applications that were filed
The first document contains this sentence “the orders sought by the applicant are set out in the claim filed with this application”. It also contains this sentence: “the grounds of the application are set out in the form for application”. This document then contains a schedule of loss and orders sought. It makes a claim for general damages, past economic loss, future economic loss and pecuniary penalties. What is missing from the document is any reference to a cause of action.
The second document (the Form 4) has an affirmation that “Discrimination contrary to s.351 of the FW Act is alleged”. There are no details of any discrimination anywhere else in that document. In the area of the document where particularisation of the contravention alleged is required, the applicant has simply written “See Attachment”. There was no attachment to the document.
On the basis of these two documents, it is very difficult to see what it is that the Applicant is asking this Court to do. It is clear that the Applicant is complaining that she is no longer working for the First Respondent. That would seem to indicate that the Applicant was basing her claim on the facts that surrounded the ending of her employment relationship with the First Respondent.
The Response
On 9 June 2021, the Respondents filed a response opposing any orders that were sought in the application. The Respondents also opposed the making of the application as, it was claimed, the application was made “out of time” and no extension was sought. The Respondents noted that the Applicant had sent them material but such material has not been filed by the Applicant in this Court.
The Respondents filed affidavits of Clare Tunney together with submissions on 21 June 2021 and 15 July 2021, in support of their claim that the application was incompetent.
The First Court Date
The matter came before me on 19 July 2021. On that date, I noted the problem that had been already identified by the Respondents. The Applicant told me that she had more material to file but that she had been told by the Legal Practice Board of Western Australia not to file the affidavit upon which she was seeking to rely.
I also noted that there was no cause of action that had been identified. The Applicant told me that her claim was pursuant to s 340 of the FW Act and that she was not relying upon s 351 of the FW Act. She told me that she had been given advice by senior counsel (Mark Ritter SC) to the effect that she had a proper claim before the Court. She told me that Mr Ritter would be appearing for her at the next mention of the matter.
I ordered the Applicant to file any further material upon which she sought to rely, including material from the Legal Practice Board that instructed her not to file an affidavit, by 4 PM on 16 August 2021. I ordered that the Respondent file and serve any further material they sought to rely upon by 4 PM on 13 September 2021 and I adjourned the matter for further directions to 5 October 2021.
Other Material Filed
Subsequent to those orders, the Respondents filed another affidavit of Clare Tunney and more submissions on 16 September 2021. On 30 September 2021, the Applicants filed an application in a case which asked for, in effect, summary dismissal of the application. On 1 October 2021, the Applicant filed a document that she headed “Statement of Claim”. The Applicant did not file any material from the Legal Practice Board.
The Next Court Appearance
On 5 October 2021, I was told by the Applicant (who was still representing herself and was not represented by Mr Ritter SC) that she wished to file some more material and would file it later that day. The Respondents wished to press on with their application in a case but because the Applicant had not yet filed that material and would do so immediately following the court appearance, I would not proceed further with the matter that day.
Instead, I ordered that the Respondents file any further material by 4 PM on 19 October 2021 and that the Applicant file any further material, in reply, by no later than 4 PM on 2 November 2021. I then told the parties that I would consider the matter, on the papers, and deliver a judgement on 16 November 2021.
Subsequent to these orders, the Applicant filed her material on 6 October 2021 and the Respondents filed further submissions on 19 October 2021. As no further material was filed by 4 PM on 2 November 2021, my Chambers considered that the matter was reserved for judgment from that time on.
On 4 November 2021, I mentioned the matter in Court because there had been a communication from the Applicant to my Chambers, without the knowledge of the Respondents. In open Court, I acknowledged that there was a communication but I did not know the contents of that communication as my Associates received that email and informed me only of the existence of the email and not the content, given that the matter was now reserved.
On this occasion, the Applicant was represented by a solicitor. The solicitor informed the Court that he had been retained around 10:30 PM the previous evening and his instructions were to ask for a reopening of the matter so that more submissions could be filed. However, the solicitor had no firm instructions as to what that other material would be.
Given the history of this matter and the opportunities that the Applicant did have to put material before the Court, I refused this application and reiterated that I would give a decision on the application in a case on 16 November 2021.
Incompetency
I have proceeded upon the premise that the documents, filed by the Applicant on 1 and 6 October 2021, contain the scope and particulars of the claim of the Applicant. I am treating these documents as if they were filed when the Applicant first filed her material on 12 May 2021.
What the Applicant makes clear is that her claim (as it appears in paragraph 20 of page 28 of her material filed 1 October 2021) is that:-
The applicant’s dismissal was as a result of exercising her protected workplace rights to make complaints about unsatisfactory professional misconduct and negligence in contravention of the guiding workplace laws and instruments
This means that the Applicant is claiming that the Respondents have committed adverse action (by dismissing her) because she has exercised a workplace right. This is a contravention of s 340 of the FW Act.
The Applicant had earlier made an application pursuant to s 365 of the FW Act and asked the Fair Work Commission (“the FWC”) to deal with a dismissal dispute. The FWC were ultimately satisfied that all reasonable attempts to resolve the dispute had been unsuccessful. Pursuant to s 368 of the FW Act, the FWC issued a certificate.
According to s 370 of the FW Act, a person who is entitled to apply under s 365 for the FWC to deal with the dispute must not make a general protections court application in relation to the dispute unless the FWC has issued a certificate and the application to the Court is made within 14 days after the day the certificate is issued.
The certificate was issued on 23 April 2021. This meant that the Applicant had until 7 May 2021 to file the application. The Applicant did not file the application until 12 May 2021. According to s 370 of the Act, this is not fatal to the application because the filing can happen “within such period as the court allows on an application made during or after those 14 days”. (My underlining)
The Applicant has not made any such application even though she has been aware of this flaw since 9 June 2021 when the Respondents filed their response. There is still no application before me and, according to s 370 of the FW Act, the matter cannot be before me. It is incompetent and must be struck out.
Workplace Right
Even if the Applicant had filed the application within the 14 days, or had successfully applied for an extension of time within which to file the application, there would still be great difficulties with the application.
The Applicant has clearly stated that the workplace right, which she exercised, was a right to make a complaint about “unsatisfactory professional misconduct and negligence in contravention of the guiding workplace laws and instruments”. The guiding workplace laws and instruments upon which the Applicant relies are the Legal Practice Act 2008, Legal Professional Conduct Rules 2010 and District Court Rules 2005. None of these instruments guides workplace law.
In paragraph 23 on page 28 of her material filed on 1 October 2021, the Applicant also alleges that the Respondents contravened the FW Act. The Applicant does not particularise how the FW Act was contravened other than a vague assertion that she, the Applicant, had a right to make complaints.
Section 341(1)(c) of the FW Act states that a person has a workplace right if the person is able to make a complaint or enquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument; or, if the person is an employee, in relation to his or her employment.
On the material submitted by the Applicant, there is no evidence that she has made a complaint or enquiry to a body or person having the capacity under a workplace law to seek compliance with that law or workplace instrument. In other words, as much as the Applicant claims that she has the right to make a complaint to the WA Legal Practice Board, there is nothing in the material that demonstrates that she actually did make a complaint to that body.
The Applicant has claimed that she made complaints to other persons in the employ of the First Respondent about these matters, but those complaints are not in relation to the employment of the Applicant.
The gravamen of a contravention of s 340 of the FW Act, is that an employer commits adverse action against an employee because they have exercised the workplace right. The Applicant does not allege that she had actually exercised the workplace right. Instead, her material is replete with all manner of misdeeds about employees of the First Respondent. It is as if to say “I could easily have made complaints to the professional overseers about all of these terrible things and I was dismissed so that I would not make those complaints”.
There is no allegation made that the First Respondent, or particularly the Second Respondent, had any knowledge that the Applicant was even contemplating such action, let alone having a belief that the Applicant had actually made such complaints. It is difficult to see how this application could ever be successful if there is nothing in the material that suggests either of these scenarios.
This means that the Applicant could not convince the Court that she was exercising a workplace right as that term is defined in s 341 of the FW Act. The result of that conclusion is that the Applicant has no prospects of success and the Court should summarily dismiss the application, if it were a valid application.
Conclusion
For the reasons I have earlier stated, the application is struck out.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 16 November 2021
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