WRIGHT v Norris Real Estate Pty Ltd

[2016] FCCA 707

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT v NORRIS REAL ESTATE PTY LTD [2016] FCCA 707

Catchwords:
INDUSTRIAL LAW – Commonwealth – Constitutional power – Judicial power of Commonwealth – Federal Circuit Court of Australia – jurisdiction –  accrued jurisdiction – adverse action claim based upon pregnancy – cross claim for breach of duty with respect to engaging contractors  – no common disputed facts – cross claim dismissed.

Legislation:

Corporations Act 2001

Fair Work Act 2009

Ogawa v Federal Magistrate Phipps [2006] FCA 361
Fencott v Muller (1983) 152 CLR 570
Re Wakim (1999) 198 CLR 511

Applicant: AMY WRIGHT

Respondent: NORRIS REAL ESTATE PTY LTD

File Number: MLG 289 of 2015

Judgment of: Judge Riethmuller

Hearing date: 10 March 2016

Date of Last Submission: 10 March 2016

Delivered at: Melbourne

Delivered on: 5 April 2016

REPRESENTATION

Counsel for the Applicant: Ms Fitzgerald

Solicitors for the Applicant: Cottier Stenning Lawyers

Counsel for the Respondent: Mr Hooper

Solicitors for the Respondent: Muir Legal

ORDERS

1. The cross claim be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 289 of 2015

AMY WRIGHT

Applicant

And

NORRIS REAL ESTATE PTY LTD

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks orders striking out the cross-claim on the basis that the court does not have jurisdiction to deal with the matters raised in the cross-claim.

2. The applicant brought proceedings pursuant to the Fair Work Act 2009 alleging that the respondents unlawfully took adverse action against her with respect to her employment arrangements following a period of time when she was not working as a result of having a child.  The applicant alleges that she took maternity leave at about the time of the birth of her child.

3. The respondents deny that claim, saying that she terminated her employment.  As a consequence, the respondents say that they are not obliged to carry out the matters set out in the Act with respect to consideration of the return of a person to employment. The applicant alleges that the Respondents thereafter terminated her employment for a prohibited reason.

4. The cross-claim brought by the second respondent is based upon events that are said to have occurred prior to the applicant taking maternity leave or ceasing her employment to have her child.  The cross-claim sets out a number of claims based upon the common law duties of the applicant to the respondent as a consequence of her contract of employment.  (To the extent that the respondents sought to rely upon provisions of the Corporations Act 2001, this was abandoned at the hearing on the basis that the court could not gain accrued or associated jurisdiction with respect to those provisions, having regard to the terms of that legislation and the decision in Ogawa v Federal Magistrate Phipps [2006] FCA 361.

5. In substance, the respondents allege that the applicant, as a tenancy manager at a real estate agency, used her position to direct work to family members for repairs of premises, failed to obtain compliance certificates with respect to maintenance work, and allegedly paid moneys for works not carried out.  The particulars given at this stage appear to be no more than a schedule of works carried out by two plumbing entities and a decorator.  It is not identified which, if any, of these items were said to be not done (save for one where it is said that there was a refund) nor is there any identification of the items wherein compliance certificates would be required and the nature of the compliance certificates that are necessary. 

6. In considering whether a matter is so far the associated jurisdiction of the court, the High Court in Fencott v Muller (1983) 152 CLR 570 said:

   [34] the question … is whether the claim under the relevant federal law is a substantial part of a controversy the whole of which would be appropriately and conveniently determined by the court vested with jurisdiction in matters arising under that law.

7. In Re Wakim (1999) 198 CLR 511 found that associated disputes must have one common substratum of individual facts and that the determination of one dispute is essential to the determination of the other. Hayne J said in Re Wakim:

   [139] The central task is to identify the justiciable controversy. In civil proceedings, that will ordinarily require a close attention to the pleadings (if any) and to the factual basis of each claim.

8. Further explanation was given by Gummow and Hayne JJ in Re Wakim where they said at paragraph [140] and [141]:

   [140] In Fencott it was said that[163]:

   in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter."

   The references to "impression" and "practical judgment" cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships"[164]. There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts"[165], notwithstanding that the facts upon which the claims depend "do not wholly coincide"[166]. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other[167], as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate"[168], "completely separate and distinct"[169] or "distinct and unrelated"[170] are not part of the same matter.

   [141] Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.

9. Clearly not all disputes between an employer and employee will satisfy the accrued jurisdiction test in Re Wakim as being part of a single justiciable controversy with a claim under the Fair Work Act 2009. For example a dispute between an employer and an employee who, injured in the workplace as a result of an employers alleged negligence, would rarely have sufficient commonality of issues of fact or law to be appropriate for this Court to hear accrued or associated jurisdiction.

10. In this case, there are no disputed questions of fact or law that are common to both the claim and the cross-claim.  There is no dispute that the applicant was employed by the first respondent during the period covered by the cross-claim, nor any dispute as to the nature and terms of that employment that are relevant to the claim. 

11. To the extent that there is any dispute relating to the contract of employment, it is only as to the extent of the duties of fidelity or duties of care that the employee owed the employer which does not affect the applicant’s claim under the Fair Work Act.  In the proceedings brought by the applicant, there is a dispute as to when the contract of employment came to an end, but other than that no issue as to the terms of that contract.  Whether the contract of employment came to an end on the date alleged by the first and second respondent or that by the applicant makes no difference to the cross-claim which concerns events that all occurred prior to the date that the respondents say the contract of employment came to an end.

12. At best, it is argued that, if the respondents are successful in the cross-claim, this may impact upon the damages the applicant may recover with respect to the claim for loss of wages in the period between when she was not able to return to work and obtained alternative employment (a period of two months).  However, on a more general level, any damages recovered in each proceeding can ultimately be set off against each other. If the amounts were significant (and in this case, they are unlikely to be), appropriate stays on execution could be put in place to ensure that one judgment was not executed before the other proceedings were determined.

13. As counsel for the applicant argues, whilst the relationship of the parties results from their contractual relationship as employer and employee, and that relationship is relevant in each proceeding (albeit as an undisputed relationship), the nature of the claims is otherwise disparate.

14. Similarly disparate would be a claim by an employee for personal injuries as a result of a workplace injury that the employee may attempt to join with proceedings of this type. 

15. I should add that the outcome in this case would not necessarily apply to all cases brought under the Fair Work Act 2009 where a cross-claim is brought by the employer, as it may be that in some cases, the facts and circumstances that found the cross-claim would also found the defence of the employer in the claim on the basis that they would be the factual bases for the employer taking steps that fall within the meaning of adverse action and relevant in order for the employer to show that the adverse action was not taken for a prohibited reason.  This is clearly not such a case when one has regard to the pleadings and issues that present in this particular matter.

16. In the particular circumstances of this case, I conclude that the court does not have accrued jurisdiction to deal with the cross-claim in the federal jurisdiction and that it must therefore be struck out, allowing the respondents to bring such a claim in the state courts.

17. In the circumstances, I therefore make orders as sought by the applicant to strike out the cross-claim.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  5 April 2016