LUC DAIGLE v SCT OPERATIONS PTY LIMITED

Judgment EX TEMPORE - Part 1 [3 august 2022]

1. HIS HONOUR: The first thing to consider in the question of jurisdiction is the character of the action which is the claim for conventional or promissory estoppel in the Reply. The Statement of Claim pleads causes of action in terms of breach of express and implied terms of contract. The Reply at is in response to the defendant's denials of the provisions of contract pleaded in a Statement of Claim.
2. The Reply pleads that, "If the matters pleaded in the paragraphs," (meaning the paragraphs of the Amended Defence), "are accepted by the Court, then an estoppel by convention arose whereby the parties conducted themselves in relation to an assumption that, to the extent the plaintiff satisfied conditions for payment under a bonus scheme under the contract, such payment could not be withheld arbitrarily or capriciously. The particulars pleaded include unconscionability of the defendant's act. The plaintiff conceded that ultimately his case of estoppel might morph into one of promissory estoppel.
3. In the leading text, Estoppel by Conduct and Election, Thomson, Sweet & Maxwell, 2006, the author, the Honourable Mr K R Handley QC, AO, BA, LLB, retired judge of the New South Wales Court of Appeal (but a judge of the Court of Appeal at the time of authorship), examined precisely the question of whether promissory estoppel is a cause of action, at para 13 007, pp 201 - 202. Whereas Denning LJ in Combe v Combe [1951] 2 KB 215, had said that it may be part of a cause of action but not a cause of action itself, Mr Handley QC said that according to the law of Australia, that statement was not correct. He wrote, "A promissory estoppel, therefore, is an equitable cause of action which entitles the promisee to an injunction to restrain enforcement of the right with the possibility of an award of equitable compensation or damages."
4. I understand those words to describe the cause of action as an action associated with the conduct according to their assumptions as pleaded. It is in the conduct of the parties in relation to the alleged contractual engagement.
5. The equitable jurisdiction of the Court is set out in s 134 of the District Court Act. In two leading and guiding decisions, the first being Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614; [2001] NSWCA 440, particularly at para 68 to 69, and more recently, the judgment of Leeming JA in Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150, at 84 to 95, in particular, s 134(1)(h) has been carefully considered. The section is to be read broadly but not as to circumvent s 134(1)(a) - (g).
6. It is important that a court raise with parties any question of jurisdiction, not late in the hearing of the matter, but at the outset of the litigation. This was explained by his Honour Leeming JA at para 95 of Lane. I raised, therefore, the question of jurisdiction with the parties when I first came on the bench this morning, both in relation to promissory estoppel and the involvement of the Fair Work Act, particularly s 562, which states that "jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act". I will return to the Fair Work Act considerations in a moment.
7. In relation to the equitable estoppel point, the plaintiffs claim here is for recovery of money or damages within the monetary jurisdictional limit of the Court. A claim of promissory estoppel is an equitable claim. The action does not, in my preliminary view, fall within any of the categories of claim in subparas (a) to (g) of s 134(1). At para 88 of Lane, Leeming JA said: "The significance of the parenthetical words in s 134(1)(a) is this: they require an analysis of whether the particular claim is "of a kind" to which one of the earlier paragraphs applies, putting to one side the (lower) pecuniary limitations in those earlier paragraphs. The point is to ensure that para(h) does not outflank the smaller, pecuniary limitations in the earlier paragraphs, notwithstanding its much larger monetary limitation ($750,000)".
8. At para 90, his Honour explained, applying the general principle to which I have referred, that laws conferring jurisdiction are to be construed broadly, and continued that the words "any equitable claim or demand for recovery of money or damages" are a new conferral of jurisdiction on the District Court and should be construed broadly. At para 93, he said, "The starting point is to identify either the remedies sought or the subject matter of the proceedings".
9. Applying my understanding of that which was said by Leeming JA in Lane and the passages I referred to from Handley QC's seminal book on estoppel, it seems to me likely that the subject matter of the claim is the action in contract - the promissory estoppel relief being associated, as I have described it to be, with the contract and the conduct of the parties, and therefore, falling within that subject matter.
10. I hope these reasons of preliminary view are of assistance to the parties as they examine the point, but the final consideration is perhaps most pertinent for consideration of issues of jurisdiction at the start of any case - that is, that s 144 of the District Court Act requires matters be transferred out of the District Court and into the Supreme Court when they may fall within the jurisdiction of that Court and not this Court. The section has been interpreted, perhaps counter-intuitively, to practically require that in the event that the Court may not have jurisdiction, there be referral to that superior court.
11. Turning to the Fair Work Act considerations, the Court, under s 12, is identified as an "eligible" court, and within the Act, there are provisions for actions to be determined in courts other than the Federal Court. Such provisions appear, for instance, at s 539.

Part 2 [4 august 2022]

1. In written submissions and orally the parties confirm their agreement with my preliminary views of yesterday.
2. Thank you to the parties for the helpful written submissions. After the research of counsel for each of the parties, there is nothing submitted contrary to my preliminary views expressed yesterday that, pursuant to s 134(1)(h) District Court Act, the Court has jurisdiction to proceed to determination, should it be required to do so, of equitable promissory estoppel. I confirm therefore my preliminary views as my reasons for determination to that effect.
3. The plaintiff, in written submissions, puts that it is a case brought on common assumption in the common law Conventional Estoppel sense as pleaded. Nevertheless, the plaintiff reserves the position that it may seek to proceed by equitable promissory estoppel.
4. That brings me to where, yesterday morning, I raised with the parties my concerns in relation to s 562 of the Fair Work Act 2009 (Cth), which provides, "Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act." By themselves, the words do not express an exclusive jurisdiction. I raised with the parties consideration of the meaning of, "in relation to any matter".
5. Helpfully, in the defendant's written submission reference is made to NUW v Davids (1999) 91 FCR 513 and Abbe v Commonwealth of Australia (1999) 162 ALR 1 [1999] HCA 14 at [140 and at 276] which considered the phrase, "a matter arising under". In that later case, Gummow, Hayne and Callinan JJ confirmed the meaning of the words as I applied them yesterday; that there is a justiciable controversy.
6. Therefore because the Amended Defence pleads application of s 117 Fair Work Act; that is a matter arising under the Fair Work Act.
7. As I also said yesterday, there is then the more complex consideration of where the jurisdiction falls, given that this Court has "entitled" jurisdiction for certain causes and defences: S 12 of the Fair Work Act. In the plaintiff submission on the point, para 13, it was put that even if the Court accepts that these proceedings give rise to a matter under the Fair Work Act, s 562 does not, in its terms, confer exclusive jurisdiction on the Federal Court. At paragraph 14, the plaintiff puts that ss 545 and 546 Fair Work Act empower eligible state and territory courts to make orders where a contravention of the Fair Work Act is found.
8. The defendant's submission offers a similar argument. Para 13 of the defendant written submission, puts that the Court has jurisdiction under s 44 District Court Act to hear a common law claim. Further that, the Court as an eligible Court, has jurisdiction, additionally under s 539 of the Fair Work Act to deal with many (but not all) contraventions of similar remedy provisions. Section 117 is a civil remedy provision.
9. I indicated yesterday my interest in the application of s 539. The schedule to s 539 does not at first glance include a civil jurisdiction, other than for penalties, in this Court at all, but I may be wrong. Statutory interpretation to be applied in this determination is of course governed by authorities such as in the Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 case where, save there being ambiguity available on the reading of a statute, the words prevail. On my reading of s 539 it is a section referring to, not a civil, but rather a penal or prosecutorial jurisdiction.
10. I understand, that the defendant relies on s 117 for it's application of these civil penalty provisions and socioeconomic legislative policy, to say that the relief claimed by the plaintiff for 24 months pay in lieu of notice is unavailable to the plaintiff. I will not be called upon, as it were, to make and order or grant a relief under s 117. On these bases I am satisfied that this Court has jurisdiction to hear and determine the issues pleaded.

Amendments 27 October 2022 - Grammatical Amendment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2022