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[2018] FCA 256
Federal Court of Australia
2018-03-09
Charlesworth J
Original judgment source is linked above.
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Thomson Geer Lawyers
Counsel for the Second and Third Respondents: Minter Ellison
Counsel for the Fourth Respondent: Gilchrist Connell
AND: PETBARN PTY LTD First Respondent
RETURN TO WORK SA (and another named in the Schedule) Third Respondent
JUDGE: CHARLESWORTH J DATE OF ORDER: 9 MARCH 2018
CHARLESWORTH J: 1 The applicant, Ms Marie Forbes, was formerly employed as a dog groomer by the first respondent, Petbarn Pty Ltd. Petbarn terminated Ms Forbes' employment on 5 April 2016 following an attempted mediation arranged by the second and third respondents and conducted by an employee of the fourth respondent. 2 On 22 December 2016 the Federal Circuit Court of Australia (FCCA) summarily dismissed an application commenced by Ms Forbes in which she sought relief under the Fair Work Act 2009 (Cth) (FW Act) in respect of the termination of her employment: Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356. As against Petbarn, the action was dismissed principally (but not solely) on the basis that the FCCA did not have jurisdiction to hear and determine it. The proceedings as against the second to fourth respondents were dismissed on the additional ground that they enjoyed no prospects of success, were vexatious and constituted an abuse of process. In addition, the primary judge dismissed two applications by Ms Forbes for judgment in default against the respondents. The first (filed on 13 July 2016) was dismissed by an order made on 1 August 2016 and the second (filed on 8 August 2016) was dismissed by an order made on 22 December 2016. 3 Ms Forbes requires an extension of time in which to seek leave to appeal against the order made on 1 August 2016. That is the only aspect of the proposed appeal requiring the grant of an extension of time. 4 Pursuant to a determination made by the Chief Justice, the substantive merits of the appeal may be determined by the Court constituted of a single judge, should leave to appeal and an extension of time be granted, or should it be determined that leave to appeal is not required: see s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). 5 The parties have prepared written submissions in respect of the extension of time application, the leave application and the substantive merits of the appeal. With the consent of the parties, the Court proceeds on the papers in respect of all issues arising in the proceeding.
EXTENSION OF TIME 6 Ms Forbes' explanation for the delay is that the primary judge did not publish reasons for the order of 1 August 2016 until 22 December 2016. The respondents do not assert that they would suffer prejudice should an extension of time be granted. It is appropriate in the circumstances that there be an extension of time to commence an application for leave to appeal in respect of that order.
THE REQUIREMENT FOR LEAVE 7 The orders dismissing Ms Forbes' two applications made in the case were interlocutory. Subject to the application of s 24(1E) of the FCA Act, leave to appeal is required: s 24(1A) of the FCA Act. Section 24(1E) provides: The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent: (a) a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or (b) the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding. 8 For reasons that will become apparent, I do not consider that the appeal from the orders finally determining the proceedings before the primary judge are founded on the dismissal of Ms Forbes' two interlocutory applications before the primary judge. Nothing in the reasoning toward the judgment dismissing the whole of the originating application (assuming it to be a final judgment) turned upon the merits of Ms Forbes' applications for default judgment to be entered in her favour or for other relief. 9 The question of whether leave to appeal from the orders summarily dismissing Ms Forbes' originating application is attended with more difficulty. As a matter of form, the proceedings were "summarily dismissed" upon applications made by the respondents pursuant to r 13.10 Federal Circuit Court Rules 2001 (Cth) (FCCA Rules) on the grounds that they enjoyed no reasonable prospect of success. The primary judge referred in his reasons to the power of the FCCA to summarily dismiss a claim under s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) in circumstances where a party has no reasonable prospects of success. An order summarily dismissing an action pursuant to s 17A of the FCCA Act is taken to be interlocutory (see s 24(1D)(ca) of the FCA Act). However, whilst Ms Forbes' action was summarily dismissed pursuant to r 13.10 of the FCCA Rules (which the primary judge referred to as a "rules based power for the same remedy" under s 17A), regard must be had to the substantive legal basis for the relief that was granted, not the form in which the relief was sought or expressed. 10 Among other reasons, the proceedings were said to enjoy no reasonable prospects of success because the FCCA lacked jurisdiction to hear and determine them. Accordingly, in substance, the originating application was dismissed principally on the basis that it was incompetent. In SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 French J (as his Honour then was) said at [23]: Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not 'finally dispose of the rights of the parties' in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. … See also Allsop J (as his Honour was then) at [68] and Tracey J at [114] respectively; Luck v Chief Executive Officer of Centrelink (2017) 251 FCR 295 at [27] - [29]. 11 As will soon become apparent, the conclusion of a want of jurisdiction in the present case appears to depend upon findings of jurisdictional fact fatal to the merits of the claim. There is, however, room for argument as to whether the findings upon which judgment is based are findings of fact, and yet further room for argument as to whether any such facts are jurisdictional. The case is one in which the categorisation of the judgment as final or interlocutory involves some difficulty. 12 If leave to appeal be required, it is appropriate to bear in mind that the order dismissing the originating application on the respondents' motion was not solely concerned with the mechanics of case management, but instead brought the proceedings to an end. As French J (as his Honour then was) said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 (at [43]), "artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question". His Honour continued: But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. 13 Having regard to the nature and impact of the order dismissing the originating application, it is appropriate to grant leave to appeal from that order, to the extent that leave is required. The appeal from that order should be determined on its substantive merits. 14 Different considerations apply to the orders dismissing Ms Forbes' applications for default judgment and other relief against the respondents in the proceedings. The application for leave in respect of those orders will be dealt with in accordance with established principles. The discretion is to be exercised having regard to, first, whether the decision at first instance is attended with sufficient doubt so as to warrant reconsideration on an appeal and, second, whether substantial injustice would result if leave were to be refused, supposing the decision at first instance to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 - 399 (Sheppard, Burchett and Heerey JJ); SZLSI v Minister for Immigration & Citizenship [2008] FCA 1052 at [12] (Flick J).
SUMMARY OF REASONS 15 In the result, I have determined that the primary judge did not err in determining that Ms Forbes' proceedings as against Petbarn were incompetent. Whilst the primary judge committed appealable error in the disposition of the applications filed by the remaining respondents, relief will not be granted on the appeal because the primary judge did not have jurisdiction to hear and determine the claim as against those respondents either. For these reasons, Ms Forbes' appeal from the order dismissing her originating application cannot succeed. 16 It follows that even if Ms Forbes could demonstrate appealable error in connection with her applications seeking, among other things, default judgment against the respondents, relief would not be granted on any appeal. Accordingly, her application for leave to appeal against the orders dismissing her interlocutory applications should also be dismissed.
Background 17 The dispute between Ms Forbes and the respondents has a chaotic procedural history. The chaos is not solely the responsibility of Ms Forbes. 18 Prior to her dismissal, Ms Forbes claimed to have sustained a workplace injury. She received workers compensation payments under the Return to Work Act 2014 (SA). That Act is administered by the third respondent Return to Work SA (an agency of the Crown in right of South Australia) and provides for a scheme of workers compensation insurance administered at all relevant times by Employers Mutual Limited (EML), the second respondent. Ms Forbes alleges that the compensation payments ceased upon, and by reason of, her summary dismissal. 19 It is Petbarn's case that Ms Forbes was dismissed from her employment because of her serious misconduct during a mediation session concerning (at least) her entitlement to workers compensation payments. The mediation was arranged by EML and conducted by the fourth respondent, Mediation ERS Pty Ltd. 20 Soon after her dismissal, Ms Forbes filed an application in the Fair Work Commission (FWC) pursuant to s 773 of the FW Act for the FWC to deal with an unlawful termination dispute. Petbarn was the only other party named on that application. I will refer to it as the First FWC Application. In substance, Ms Forbes complained that her dismissal was for reasons that included: (1) her temporary absence from work because of illness or injury; (2) her having acted in the capacity of a representative of employees; (3) her having filed a complaint against Petbarn involving violation of laws; and (4) her age. 21 In both form and substance, the First FWC Application alleged that Petbarn had acted in contravention of subss (a), (d), (e) and (f) of s 772(1) of the FW Act. Accordingly, it was to be regarded as an unlawful termination application within the meaning of s 723 of the FW Act. It provides: Unlawful termination applications 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. 22 A "general protections court application" is defined to mean an application to a court under Div 2 of Pt 4-1 for orders in relation to a contravention of Pt 3-1 of the FW Act: see s 12(1) and s 368(4). 23 Petbarn took a jurisdictional objection to the First FWC Application. It submitted that Ms Forbes was entitled to make a general protections court application and that she was, accordingly, not entitled to make an application to the FWC under s 773 of the FW Act to deal with the dispute. 24 The FWC upheld Petbarn's objection. In doing so, it rejected Ms Forbes' contention that she was unable to make a general protections claim because she had not completed the minimum period of employment specified in s 383 of the FW Act. The FWC determined, correctly, that Ms Forbes' submissions were misconceived because the minimum employment provision applied only to applications for relief in respect of unfair dismissal commenced under Pt 3-2 of the FW Act and not to general protection claims alleging a contravention of s 772. 25 Section 776 of the FW Act provides that if an application is "made under s 773", the FWC must "deal with the dispute" (other than by arbitration). If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the FWC must issue a certificate to that effect: s 776(3)(a). If the FWC considers that an unlawful termination court application in relation to the dispute would not have reasonable prospects of success, the FWC must advise the parties accordingly. 26 Importantly, the issue of a certificate pursuant to s 776 is a necessary precondition to the commencement of an "unlawful termination court application". So much is provided for by s 778 of the FW Act: Taking a dispute to court A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute; (ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or (b) the unlawful termination court application includes an application for an interim injunction. 27 Notwithstanding its finding that Ms Forbes was not entitled to make an application under s 773 of the FW Act, the FWC purported to "deal with the dispute" between Ms Forbes and Petbarn in accordance with s 776. In reasons given to the parties, the presiding Commissioner stated (Forbes v Petbarn Pty Ltd [2016] FWC 2688 at [8] - [9]): 8. I am unable to accept the submission that Ms Forbes is not entitled to make a general protections dispute application pursuant to s 365 of the Act. 9. I am satisfied that this matter will not be resolved by further conferences and will issue a certificate to that effect. I advise the parties that in my opinion the application does not have a reasonable prospect of success for the reasons detailed above. 28 The "reasons detailed above" explained why Ms Forbes was not entitled to apply to the FWC to deal with an unlawful termination dispute. The Commissioner then issued, or purported to issue, a certificate pursuant to s 776 of the FW Act dated 28 April 2016 (the s 776 Certificate). Relevantly, the s 776 Certificate states: An application pursuant to s.773 of the Fair Work Act 2009 (the Act) was made by Ms Marie Forbes alleging she was dismissed by Petbarn Pty Ltd T/A Petbarn in contravention of s.772(1) of the Act. The Fair Work Commission conducted a conference to deal with the dispute on 28 April 2016. Pursuant to s.776 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. 29 At the foot of the s 776 Certificate appears the following notice: IMPORTANT NOTE: The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order, unless the court extends the time for making such an application. For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both of the parties. This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application. (Emphasis added) 30 On the day following the issue of the s 776 Certificate, Ms Forbes made a general protections application involving dismissal to the FWC pursuant to s 365 of the FW Act. I will refer to it as the Second FWC Application. Where such an application is made, the FWC must deal with the dispute (other than by arbitration): s 368. If satisfied that all reasonable attempts to resolve the dispute have been or are unlikely to be successful, the FWC must issue a certificate to that effect: s 368(3)(a). Section 370 of the FW Act provides that a person who is entitled to apply under s 365 for the FWC to deal with such a dispute must not make a general protections court application in relation to the dispute unless: (1) the FWC has issued a certificate under s 368(3)(a); and (2) the Court application is made within 14 days after the issue of the certificate or within such period as the Court allows. 31 Ms Forbes commenced proceedings in the FCCA on 12 May 2016. As originally filed, the originating application took the form of a "Claim under the Fair Work Act 2009 alleging contravention of a general protection". The application was commenced, or purportedly commenced, pursuant to s 351 of the FW Act. At that time, however, the FWC had not dealt with the Second FWC Application. The Second FWC Application was ultimately withdrawn by Ms Forbes on 1 July 2016. 32 In these proceedings, Ms Forbes submits that by commencing the FCCA proceedings on 12 May 2016 as she did, she was complying with the requirements as stated in the "important notice" set out at the base of the s 776 Certificate. Given the content of that notice it is hardly surprising that Ms Forbes commenced a general protections court application within 14 days of the issue of the s 776 Certificate: the notice asserted that Ms Forbes should (and therefore could) commence such an application within that time frame. 33 Ms Forbes joined three additional respondents to the FCCA action: EML, Return to Work SA and Mediation ERS, being the second, third and fourth respondents respectively on the proposed appeal. Broadly summarised, Ms Forbes' claims were to the effect that the respondents together conspired to assist Petbarn to concoct a false reason for her dismissal, namely misconduct during the course of the mediation (conducted by Mediation ERS) in relation to her claimed entitlement to workers compensation payments administered by EML and Return to Work SA. 34 Petbarn opposed the FCCA application as originally filed on jurisdictional grounds. It alleged that s 370(a) of the FW Act prevented Ms Forbes from making a general protections court application because the FWC had not issued a certificate under s 368(3)(a) of the FW Act in relation to the dispute. Petbarn's jurisdictional objection to the claim as originally filed was never finally determined because the primary judge granted leave to Ms Forbes to file an amended claim and the proceedings took another unfortunate turn. 35 On 27 June 2016 Ms Forbes filed a document in the form prescribed for making an application under the FW Act alleging unlawful termination of employment (Amended Claim). In broad summary, the Amended Claim alleged that Petbarn had contravened s 772 of the FW Act, including by: (1) terminating her employment because of complaints made by Ms Forbes to the effect that Petbarn had violated laws; and (2) terminating her employment "due to an untruthful mediator's report which was created with intent which arose in the course of the applicant's participation in proceedings against [Petbarn]". 36 Ms Forbes further alleged that she had suffered a workplace injury entitling her to workers compensation payments. She claimed that she had complained to Petbarn of workplace bullying and alleged cruel treatment of animals by other members of the staff. She further alleged that she had participated in a mediation organised by Return to Work SA and EML and that she had been treated with hostility by the mediator, an employee of Mediation ERS. She claimed she had been dismissed, purportedly for serious misconduct, after Mediation ERS had wrongfully disclosed to EML a false version of the events that had occurred at the mediation, and further that Mediation ERS had agreed with EML and Petbarn to "deal" with her workers compensation claim by having Petbarn terminate her employment prior to the expiration of her probation period for alleged misconduct during the mediation, presumably so that EML could avoid the payment of weekly compensation payments to her. 37 The details of the claim include the following claims for relief: 15. The Applicant applies to the court for an injunction preventing workcover stopping her weekly payments because the reason for workcover stopping her weekly payments is her dismissal for misconduct, which is itself arrived at unlawfully and cannot be relied upon by EML/RTWSA as cause to stop Ms Forbes weekly payments. The applicant applies to the court to award the maximum pecuniary penalty units available under the Act, against the respondents and their [certain named employees] … and to herself. 16. The applicant applies to the court for a pecuniary penalty in the public interest to be awarded against EML and Petbarn and to the applicant. 38 In her claim for a remedy, Ms Forbes ticked boxes on the Court form to the effect that she sought an injunction, compensation and pecuniary penalties. Those claims for relief were not directed to any particular respondent and so may properly be regarded as directed at all of them. 39 There are numerous statutory provisions referred to in the Amended Claim. They include a footnoted reference to s 550 of the FW Act in connection with the conduct of the mediation and, by extension, the alleged involvement of EML, Return to Work SA and Mediation ERS in the termination of Ms Forbes' employment. 40 Section 550 of the FW Act provides: 550 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)). (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 41 In both form and substance, the Amended Claim was, or at least purported to be, an unlawful termination application, at least insofar as it alleged contraventions by Petbarn of s 772 of the FW Act. Insofar as Ms Forbes named the second to fourth respondents as her employer in a portion of the Court form, it may also be fairly interpreted as an allegation that those respondents also directly contravened s 772 of the FW Act. 42 A question arises as to whether Ms Forbes' Amended Claim also fairly alleged accessorial liability under s 550 of the FW Act against the second to fourth respondents. For the reasons given below, I have concluded that it did so.
Applications in the FCCA case 43 Relevantly, the parties made four applications in the action before the FCCA: (1) Ms Forbes' applications dated 13 July 2016 and 8 August 2016 relevantly seeking orders to the effect that: (a) the responses filed by each of the respondents be struck out; (b) judgment in default to be entered in her favour on the basis that the first to third respondents had filed their responses to the Amended Claim at a time outside a deadline that had been ordered by the primary judge; (c) the first to third respondents be dealt with for contempt of court for: (i) passing to Ms Forbes, in the course of a case management hearing, an unsealed affidavit that had not been filed in the registry of the Court; and (ii) knowingly making false statements to the primary judge as to matters of fact and law, particularly in relation to costs; and (d) "Summary Judgment" be entered against each of the respondents. (2) Petbarn's application dated 11 July 2016 for orders pursuant to r 13.10 of the FCCA Rules summarily dismissing the Amended Claim on the alternative grounds that: (a) the Amended Claim was made out of time as s 778 of the FW Act required an unlawful termination application to be made within 14 days of the issue of the relevant certificate under s 776 of the FW Act. The s 776 Certificate was issued on or about 28 April 2016. The Amended Claim was filed 27 June 2016, approximately 60 days after the issue of the s 776 Certificate; (b) section 723 of the FW Act prohibited a person from making an unlawful termination application in relation to conduct if the person is entitled to make a general protections claim in relation to the conduct. Ms Forbes was entitled to make a general protections claim; and (c) Ms Forbes could not succeed on her claim for reinstatement of compensation payments under the Return to Work Act 2014 (SA) because: (i) any dispute about her entitlement to workers compensation fell within the exclusive jurisdiction of the South Australian Employment Tribunal (SAET); (ii) proceedings were underway already in the SAET in relation to Ms Forbes' workers compensation claim so any injunction would have been a duplication of those proceedings; and (iii) Ms Forbes' workers compensation payments had already been reinstated in any event. (3) The remaining respondents' applications dated 6 July 2016 and 11 July 2016 for orders pursuant to r 13.10 of the FCCA Rules summarily dismissing the principal proceedings against them on the basis that Ms Forbes had no reasonable prospect of successfully prosecuting her claim, or because the claim for relief was frivolous or vexatious.
disposition of THE APPLICATION FOR LEAVE TO APPEAL 44 As I have mentioned, Ms Forbes should not be granted leave to appeal from the orders dismissing her two interlocutory applications, irrespective of the merits of her proposed grounds of appeal in relation to those orders. No substantial injustice can flow to Ms Forbes should leave to appeal be refused, quite simply because the proceedings before the primary judge were incompetent. The FCC did not have jurisdiction to grant the final relief on the originating application, nor may that relief be granted by this Court in the exercise of its appellate jurisdiction.
DISPOSITION OF THE APPEAL 45 The grounds of appeal are set out in a draft Notice of Appeal (NOA) annexed to Ms Forbes' Amended Application for Extension of Time and Leave to Appeal filed on 19 May 2017. They are expressed in three paragraphs numbered 1, 2 and 4. There is no paragraph 3. There are numerous lengthy sub-paragraphs raising interrelated and overlapping issues. The grounds as expressed by Ms Forbes will not be set out in full in these reasons. Instead, they will be summarised or paraphrased in language that fairly encapsulates the issues that are sought to be raised. 46 To the extent that Ms Forbes' written submissions appear to allege additional appealable errors that are not fairly encompassed within the grounds specified in the NOA, the submissions have not been taken into account. Ms Forbes was granted leave to amend her proposed grounds and the appeal will be determined by reference only to those grounds contained in her revised draft dated 12 May 2017 and filed on 19 May 2017. Leave to appeal having been granted, the requirement to file a notice of appeal in terms of the draft will be dispensed with. 47 It is convenient to group the issues by reference to the alleged appealable errors affecting the disposition by the primary judge of Petbarn's application on the one hand, and the applications of the remaining respondents on the other.
Petbarn 48 In connection with Petbarn's application, the grounds of appeal allege that the trial judge erred by finding that the FCCA did not have jurisdiction to hear and determine the Amended Claim because of the operation of s 723 of the FW Act. It is submitted that the primary judge erred by failing to find that: (1) Ms Forbes was not a person who was entitled to make a general protections application because Petbarn is not a "national system employer" as defined in the FW Act; (2) Ms Forbes did not require an extension of time in which to commence an unlawful termination court application; and (3) the FWC's issuing of the s 776 Certificate had the effect that the FCCA had jurisdiction to hear and determine the Amended Claim. 49 The first of these propositions does not appear to have been raised before the learned primary judge. It may nonetheless be shortly disposed of. It is unmeritorious in a number of respects. 50 The entitlement of Ms Forbes to make a general protections application under s 365 of the FW Act did not depend upon Petbarn's status as a "national system employer". In Pt 3-1 (which contains the general protection provisions), the word "employer" bears its ordinary meaning. Part 3-1 is expressed to apply to action taken by a "constitutionally-covered entity", a phrase defined to include a constitutional corporation. 51 It is common ground that Petbarn is an Australian proprietary company limited by shares and is trading in Australia. It is a constitutional corporation and, accordingly, its actions are covered by Pt 3-1 of the FW Act: see s 338 of the FW Act. 52 Section 339 of the FW Act relevantly provides: In addition to the effect provided for by section 338, this Part also has the effect it would have if any one or more of the following applied: (a) a reference to an employer in one or more provisions of this Part were a reference to a national system employer; (emphasis added) 53 It is clear that this provision operates to extend the application of Pt 3-1 of the FW Act to entities that may not be constitutional corporations but that nonetheless fall within the definition of "national system employer". The application of the FW Act to Petbarn's activities does not depend on the extended application of Pt 3-1 provided for in s 339. As I have said, Petbarn's activities are covered by virtue of s 338 of the FW Act. 54 Even if that conclusion were wrong, it has not been shown that Petbarn does not satisfy the definition of a "national system employer". In that regard, Ms Forbes wrongly contended that Petbarn is not a "national system employer" because of the operation of s 14(2)(a)(iii) of the FW Act. That submission cannot succeed. Section 14(2)(a) provides that despite s 14(1) (which contains a definition of the term "national system employer" that would capture Petbarn) a particular employer is not a national system employer if (relevantly) it: … (ii) is a body established for a local government purpose by or under a law of a State or Territory; or (iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and … 55 Ms Forbes alleges (and for present purposes the Court will assume) that Petbarn is a subsidiary of Greencross Limited. However, it has not established that Greencross Limited is a "body established for a local government purpose by or under a law of a State or Territory" within the meaning of s 14(2)(a)(ii) of the FW Act. 56 It should be noted that on 13 July 2017, the Court directed the Registrar not to accept for filing an interlocutory application dated 6 July 2017 lodged by Ms Forbes on the same day. The documents sought to be filed by Ms Forbes were treated as a proposed application to adduce new evidence on the appeal. I directed that the application not be accepted for filing because the evidence sought to be adduced by Ms Forbes was not capable of proving that Greencross Limited was established for a local government purpose by or under a law of a State or Territory. 57 There is no reason to doubt the correctness of the conclusion of the primary judge that Ms Forbes was entitled to make a general protections application to the FWC and therefore not entitled to make an unlawful termination application to the FWC under s 773 of the FW Act. 58 The contention that the primary judge erred by finding that Ms Forbes required an extension of time to commence an unlawful termination court application must also fail. The primary judge made no such finding. His Honour rejected a submission advanced on behalf of Petbarn to the effect that the Amended Claim constituted an unlawful termination application commenced out of time. His Honour held (at [73]) that the unlawful termination court application purportedly commenced by the filing of the Amended Claim was properly to be regarded as the continuation of a proceeding that had been commenced within 14 days of the issue of the s 776 Certificate. No occasion arises for considering whether the learned primary judge was correct in proceeding in that way, beneficial as it was to Ms Forbes. 59 It remains to be considered whether the issue of the s 776 Certificate by the FWC had the legal effect of conferring jurisdiction on the FCCA to hear and determine the Amended Claim. 60 The primary judge accepted Petbarn's submission that the Amended Claim was barred by s 723 of the FW Act in circumstances where Ms Forbes was entitled to make a general protections court application. The primary judge said (at [76]): What the applicant should have done when the Fair Work Commission dismissed her s 773 application, was file a general protections application alleging unlawful termination in the Fair Work Commission. It is most regrettable that the applicant in fact did this but then discontinued that application on 1 July 2016. The applicant no doubt discontinued that application because she believed, incorrectly, that she had satisfied the preconditions that would entitle her to file the principle proceedings in this Court. The clear inference from the chronology is that she held that belief because of the erroneous advice contained in the s 776 Certificate issued by the Fair Work Commission. 61 Ms Forbes submits that her First FWC Application was not dismissed by the FWC. Rather, she contends (effectively) that the FWC in fact "dealt with" the dispute under s 776 of the FW Act and issued a certificate, thus enlivening the jurisdiction of the FCCA. 62 The learned primary judge correctly noted that the FWC had not dealt with a general protections dispute and had not issued a certificate under s 368(3)(a) of the FW Act. Of the s 776 Certificate, the learned judge said (at [61]): … Given the application before it was erroneously made pursuant to s 773 of the FW Act, it issued a Certificate under s 776. In the circumstances, it had no power to issue anything other than a s 776 certificate. 63 This passage reveals error on the part of the primary judge. However, the error is not of a kind that would justify the grant of relief on the appeal. 64 As has been made clear, Ms Forbes was at all times a person entitled to make a general protections application to the FWC. Accordingly, she was not entitled to make an application pursuant to s 773 of the FW Act for the FWC to deal with the dispute. Nor could she make an unlawful termination court application: s 778 of the FW Act. 65 The powers and obligations of the FWC to deal with a dispute pursuant to s 776 of the FW Act never arose. It was, of course, necessary for the FWC to determine whether it had before it a valid application under s 773. However, once it answered that threshold question in the negative, it had no obligation to deal with the dispute under s 776. It had no power to do so and should not have purported to do so. The FWC ought to have declined to deal with the dispute on the basis that neither its authority nor its obligation to do so had been properly enlivened. 66 Any certificate purportedly issued in the exercise of the power conferred by s 776(3)(a) of the FW Act must be invalid. It could have no evidentiary effect on the question of whether Ms Forbes was entitled to make an application under s 773 of the FW Act, nor could the issue of the s 776 Certificate in the circumstances have the legal effect of enlivening the jurisdiction of the FCCA to hear and determine the Amended Claim (being an unlawful termination court application between Ms Forbes and Petbarn). The primary judge was incorrect to remark that the FWC "had no power to issue anything other than a s 776 Certificate" because the FWC had no power to issue any certificate at all. Nonetheless, the conclusion of the primary judge that the FCCA had no jurisdiction to determine an unlawful termination court application was undoubtedly correct. 67 The erroneous advice given on the face of the s 776 Certificate to the effect that Ms Forbes had 14 days in which to commence a general protections application amounts to an unfortunate distraction. Upon the filing of the Amended Claim, the FCCA no longer had a purported general protections court application before it. It is hardly surprising that Ms Forbes has become confused and distracted both by the issue of the s 776 Certificate and by the serious misstatement of her legal rights and obligations it contained. 68 For the purposes of the present applications, there is no respectable argument available to Ms Forbes to the effect she met the requirements of s 778 of the FW Act: Ms Forbes was not a "person who is entitled to apply under section 773 for the FWC to deal with a dispute" and was therefore not entitled to make an unlawful termination court application. Nor can it be reasonably argued that her Amended Claim was anything other than an unlawful termination court application purportedly commenced under s 778 of the FW Act. 69 Accordingly, her appeal cannot succeed against Petbarn.
The remaining respondents 70 The primary judge held (at [45]) that the FCCA did not have jurisdiction to make an order mandating that Ms Forbes' workers compensation payments be reinstated. His Honour further held (at [45]) that the payments had been reinstated in any event pending the determination of proceedings then continuing before the SAET. Subject to what is said at [85] - [87] below, I do not consider these aspects of the judgment to be the subject of any clearly articulated challenge by Ms Forbes, although she does challenge further findings (at [53]) to the effect that she well knew that the FCCA had no jurisdiction to grant that relief, that she was not merely misguided, and that she had accordingly commenced the action vexatiously. For the reasons now given at [79] - [82] below, even if there be an arguable error attending the conclusion of the primary judge that the proceedings as against the second to fourth respondents were vexatious, relief on the appeal should not be granted. 71 The grounds of appeal allege error in the primary judge's conclusion that the proceedings against the second to fourth respondents enjoyed no reasonable prospects of success because the second to fourth respondents could not on any reasonable view be regarded as Ms Forbes' employer. On these topics, the reasons given by the primary judge are expressed, in part, as follows: 46. As to the submission of the second to fourth respondents, inclusive, that the applicant has no reasonable prospect of prosecuting her claims successfully against them, I note that none of the second to fourth respondents, inclusive, has ever been the employer of the applicant. … 51. There is no evidence of sufficient quality or weight that would be capable of establishing that any of the second to fourth respondents, inclusive, have taken adverse action against the applicant within the meaning of s 342 of the FW Act. There is no evidence that any of the second to fourth respondents, inclusive, have ever employed the applicant, or axiomatically that they unlawfully terminated her employment. The applicant has no reasonable prospects of success against the second to fourth respondents, inclusive, on either the principle proceedings as initially filed, or the amended principle proceedings. 72 It is appropriate to set out the grounds of appeal in relation to these findings in the terms expressed in the NOA: 2 Error of Law, … (c) His Honour erred when he states that the Applicant is vexatious by naming the Second and Third and Fourth respondents in her claims, when she is not. The applicant has correctly included the Second to the Fourth respondents pursuant to; Accessorial Liability sect550 of the Fairwork Act 2009. 'parties involved in the contravention are to be dealt with as if they did the contravention'. Clearly anticipating and including parties to the contravention other than the employer. The Second and Third Respondent proffered and supplied a mediator, the Fourth respondent was the mediator. The mediator unlawfully acted as an agent to generate a cause for termination by the First respondent. The mediator is recorded on a transcripted phone call with the other respondents describing he 'developing a strategy to tackle this (workcover) claim'. The mediator was not engaged to 'tackle this claim' he was engaged to mediate workplace bullying of the Applicant. The mediator further states 'it will have to be soon as she is off probation shortly' clearly evidencing his intention was to cause the termination of the Applicant. The First respondent later terminated the Applicant relying on a letter from the mediator. The Applicant is not vexatious in naming the Second to Fourth respondents. Pursuant to s550 Fairwork Act 2009. His Honour erred. … 73 Section 772 of the FW Act is a civil remedy provision: see Item 35 of the table in s 539(1). As a matter of construction there is no reason why s 550(1) of the FW Act cannot operate to fix liability for a contravention of s 772 upon a person not having the status of an employer: Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [94] - [118]. Where such an allegation is made and proven, a court having jurisdiction to hear the application may order that the person pay pecuniary penalties because he or she will be "taken to have contravened" the same provision as that contravened by the primary contravener. Indeed, it is not necessary to join the employer as primary contravener in such an action: see McDermott at [104] - [118] and the authorities cited therein. 74 Each of the second to fourth respondents submit that no allegation of accessorial liability was raised by Ms Forbes in the course of argument on their applications for summary judgment before the primary judge. They contend that Ms Forbes cannot raise the issue in the course of any appeal, absent a grant of leave to do so. I reject that submission. It was not open to the primary judge to proceed on the basis that no claim of accessorial liability had been made by Ms Forbes on the Amended Claim and it was not for Ms Forbes to raise the issue in the course of her own submissions. On their respective applications, the second to fourth respondents bore the onus of demonstrating that the whole of the Amended Claim had no reasonable prospects of success. It was for the respondents to take the primary judge to the Amended Claim and to demonstrate that their status as non-employers was necessarily fatal to the whole of the Amended Claim. 75 It is true that the standardised court form utilised by Ms Forbes made provision for the applicant to name the "employer" and that Ms Forbes named all four respondents where indicated on the form. However, in the context of a summary judgment application, the Amended Claim was to be read having regard to the circumstances that there is no provision in the Court form for an applicant to identify the non-employer parties who are joined as liable pursuant to s 550 of the FW Act. Whether any such allegation was made against any one respondent was a question to be answered by reference to the substantive facts alleged in the details of the claim and not by reference to the completed boxes on the Court form. 76 The scope and nature of the factual allegations made by Ms Forbes were correctly recorded in the reasons of the primary judge, including in this passage (at [8]): The applicant complains that the mediation was conducted by the fourth respondent in an unprofessional and unsatisfactory manner. The applicant further complains that in a telephone conversation on 17 March 2016, the mediator reported back to the second respondent and made untruthful comments to them about her conduct during the mediation. In essence, the applicant alleges that the fourth respondent mediator gave advice to the second respondent insurer that was used by the first respondent employer to generate an excuse for her termination on the grounds of misconduct. 77 The factual allegations made by Ms Forbes clearly indicate that Ms Forbes alleged Petbarn to be her employer and the remaining respondents to be separate entities. In substance, she alleged that the second to fourth respondents did and said certain things so as to facilitate Petbarn to concoct a false reason for terminating her employment. She alleged that they were motivated to do so to "tackle" her case and to justify the cessation of her workers compensation payments. There is prima facie evidence that following the mediation, Mediation ERS did indeed disclose to other respondents what had taken place at the mediation and that it took a peculiarly partisan interest in the question of whether and when Ms Forbes' period of probationary employment with Petbarn might end and, by inference, when steps to terminate her employment might occur. I emphasise that the question of the propriety of the mediator has not been tried and determined. It is sufficient to observe that Ms Forbes' concerns about the role of third parties in her dismissal could not be categorised as fanciful or entirely unfounded. 78 In all of the circumstances, it was not open to the primary judge to interpret the Amended Claim as one that must stand or fall upon proof of an employment relationship between Ms Forbes and any one of the second to fourth respondents. Whilst the primary judge was clearly correct to identify an absence of evidence that any one of the second to fourth respondents had the status of Ms Forbes' employer, that circumstance alone could not justify the summary dismissal of the whole of the Amended Claim against them. There is appealable error in this aspect of the judgment. 79 However, it does not follow that the orders sought on the appeal should be made. 80 Insofar as the Amended Claim alleges deemed contraventions of s 772 of the FW Act by the second to fourth respondents by the operation of s 550 of the FW Act, the Amended Claim is properly to be regarded as an application purportedly made under s 778 of the FW Act as against those respondents. There is nothing in the FW Act to suggest that an action alleging a deemed contravention of s 772 of the FW Act by an accessory should not be subject to the same jurisdictional preconditions attaching to actions alleging a primary contravention of s 772 of the FW Act by an employer. 81 Ms Forbes cannot commence an action against the second to fourth respondents for relief in respect of a deemed contravention of s 772 of the FW Act because she is a person who is entitled to make a general protections application in relation to that same dispute. The dispute may be dealt with by the FWC under s 368 of the FW Act upon an application made in accordance with s 365. Accordingly, a general protections court application cannot be made in relation to the dispute unless and until the FWC issues a certificate in respect of it under s 368: see s 370. 82 It follows that the Amended Claim was incompetent, not only as against Petbarn, but as against the remaining respondents. Accordingly, the appeal should be dismissed. 83 In his reflections upon the unfortunate history of the dispute, the primary judge said (at [78]): Whilst it is not the proper role of a Court to advise an applicant, it would seem that her only recourse to pursue a general protections unlawful termination dispute is to apply to the Fair Work Commission to re-enliven her discontinued application, or to file a fresh general protections application involving an unlawful termination in the Fair Work Commission. If a s 368 Certificate is then issued, the applicant would have standing by virtue of s 370 to pursue a general protections application in this Court. 84 I respectfully join in those sentiments. They extend to the dispute between Ms Forbes and all four respondents.
Costs in the FCCA 85 The NOA concerns only those orders made by the primary judge on 22 December 2016 and an earlier order of 1 August 2016 dismissing Ms Forbes' application in a case. The primary judge made no orders as to costs against Ms Forbes on either of those dates. The orders made on 22 December 2016 include an "order" that the question of costs of the second to fourth respondents be reserved. The reservation of an issue for determination at a later time is not an "order": Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 at [50], [63], [67]. 86 This Court has before it no adverse order for costs that might subsequently have been made against Ms Forbes in favour of any respondent, although it appears from the content of Ms Forbes' written submissions in this proceeding that such an order may have been made, and that she may labour under the misapprehension that the order is challenged in these proceedings. 87 Ms Forbes has furnished no reasons for decision that may have been provided by the learned primary judge in respect of any adverse costs order. I am not satisfied that Ms Forbes has invoked the appellate jurisdiction of this Court in respect of any adverse costs order. These reasons for judgment should be understood as confined to the orders of the primary judge made on 1 August 2016 and 22 December 2016. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.
SCHEDULE OF PARTIES SAD 22 of 2017 Respondents Fourth Respondent: MEDIATION ERS PTY LTD
Forbes
Petbarn Pty Ltd
[2016] FWC 2688
(1991) 33 FCR 397
(2006) 154 FCR 554
(2000) 104 FCR 564
(2017) 251 FCR 295
(2008) 168 FCR 410