Mpinda v Fair Work Commission

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The second respondent (Western Areas) seeks an order, in effect, that the proceeding be dismissed in respect of the remaining relief the applicant (Mr Mpinda) claims because, as a consequence of the declaration and orders the Court made on 11 September 2024 after a trial of separate questions and events that have taken place since that date, there are no 'live' issues in the proceeding and the remaining claims for relief are otiose. The order was initially sought in a minute of proposed orders filed on 15 January 2025 and later in an 'updated' minute of proposed orders sent by email to my chambers on 21 January 2025. Both versions of the proposed orders also sought an order that a case management hearing listed for 5 February 2025 be vacated. Therefore, in effect, Western Areas proposed that the Court make an order dismissing the proceeding administratively without an oral hearing and affording Mr Mpinda or the first respondent (Commission) an opportunity to be heard on the proposed orders. On 24 January 2025 my chambers sent an email to the parties to the effect that, as the Court had not received an indication from Mr Mpinda or the Commission as to their positions with respect to the proposed orders, the listing of the case management hearing would be maintained to deal with Western Areas' minute of proposed orders.
2. On 5 February 2025 the Commission and Western Areas appeared at the hearing. When the matter was called on for hearing there was no appearance by Mr Mpinda. After the matter was called outside the court there was still no appearance by Mr Mpinda. Western Areas then moved for an order dismissing the proceeding to be made in the absence of Mr Mpinda. I heard Western Areas on that application on the assumption that Mr Mpinda had received notice of the hearing and that Western Areas intended moving for an order dismissing the proceeding, and that the minutes of proposed orders and supporting written submissions and affidavit had been served on Mr Mpinda before the hearing.
3. Western Areas' written submissions do not address the asserted source of the Court's power to dismiss the proceeding for the remaining relief claimed. During the oral hearing it submitted that the Court has power under s 23 of the Federal Court Act of Australia 1976 (Cth) to make such an order. Under that section the Court has power to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power, of course, may be exercised after a hearing and determination of the issues in a proceeding or upon an interlocutory application, but it is doubtful that it is the source of the power Western Areas is requesting the Court to exercise on this application. During Western Areas' oral submissions, it also emerged that it may have sought summary dismissal of the proceeding due to Mr Mpinda's failure to attend the hearing on 5 February 2025 under r 5.22(c) and r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth). An alternative source of power may have been for summary dismissal under s 31A(2) of the Federal Court Act or r 26.01(1)(a) of the Rules. In any case, after a short hearing, I reserved my decision and directed Western Areas to file an affidavit deposing to facts confirming the assumption of notice and service upon which the hearing proceeded. I also indicated that I would deal with the outcome of the application administratively after receiving that affidavit. That affidavit was filed on 6 February 2025.
4. Although there is significant uncertainty regarding the power of the Court Western Areas seeks to invoke, in substance, Western Areas has sought a final determination of the relief Mr Mpinda sought in his originating application for the issue of a writ of mandamus and a declaration against the Commission. Western Areas contends that after the Court made a declaration to the effect that Mr Mpinda's unfair dismissal remedy application in the Commission had not been discontinued or dismissed and the Commission had not exercised power pursuant to s 397 of the Fair Work Act 2009 (Cth) to conduct a conference or hearing to determine the merits of that application on 11 September 2024, the Commission performed the statutory duties and functions that were the subject of Mr Mpinda's claims for mandamus and declaratory relief. As a consequence, even if the Commission fell into jurisdictional error for failing to exercise its powers before October 2024, it has now done so, and the relief claimed should be refused on discretionary grounds as it is of no utility.
5. Notwithstanding the lack of clarity regarding the nature of Western Areas' application for dismissal and the absence of formality in its application, taking into account the objects of the civil practice and procedure provisions set out in s 37M of the Federal Court Act and that the Court has power under r 1.34 to dispense with compliance with the Rules, under r 1.40(a) to exercise a power in the Rules on the Court's own initiative, under r 1.35 to make an order that is inconsistent with the Rules and under r 1.32 to make any order considered appropriate in the interests of justice, I am prepared to take Western Areas' minute of proposed orders, written submissions and affidavits to be, in substance, an application to determine the following question as a separate question under r 30.01 of the Rules: Assuming the Commission has made the jurisdictional error asserted in the declaration sought in paragraph 1 of the amended originating application, should the Court exercise its discretion to refuse the applicant the relief claimed in paragraphs 1 and 2 of the amended originating application? And, upon answering that separate question in the affirmative, also an application for an order dismissing the remaining part of the proceeding under r 30.02 of the Rules. Although that application would, if successful, result in the final disposition of the proceeding, the application for determination of the separate question was interlocutory and was, in effect, heard in the absence of Mr Mpinda in accordance with r 17.04 of the Rules.
6. For the reasons that follow, the answer to the separate question is yes because there is no utility in the relief claimed in para 1 and para 2 of the amended originating application. Further, in the circumstances, it is appropriate to make an order dismissing the remaining relief claimed in the proceedings.

1. On 20 October 2021 Mr Mpinda filed an originating process and an affidavit in support by which he made various allegations against the Commission, Western Areas and third respondent (Mr Banovich). In January 2022 the Commission filed an interlocutory application for summary judgment. Western Areas requested the Court to exercise power on its own motion to dismiss the claim against Western Areas and Mr Banovich filed an interlocutory application for a stay of the claim against him. On 19 September 2022 I made orders dismissing each of these applications, but made an order staying the proceeding against the Commission and gave Mr Mpinda leave to amend his originating application in a form consistent with the reasons for those orders: Mpinda v Fair Work Commission [2022] FCA 1111.
2. On 8 December 2022 Mr Mpinda filed an amended originating application. In that application he sought a declaration against the Commission to the effect that it had failed to exercise its power pursuant to s 397 of the Fair Work Act to conduct a conference or hearing to determine the merits of an application Mr Mpinda had made in the Commission for an unfair dismissal remedy against Western Areas pursuant to s 394 of that Act. Mr Mpinda also sought the issue of a writ of mandamus to compel the Commission to exercise the power to conduct a conference or hold a hearing and determine the merits of his unfair dismissal remedy. In the alternative, Mr Mpinda sought damages against Mr Banovich for alleged negligence in making an unauthorised settlement agreement by which Mr Mpinda's claim in the Commission was compromised and damages against Western Areas for breach of the terms of that agreement for, in effect, failing to pay him the settlement sum. Mr Mpinda's claims against the Commission were postulated on the basis that his claim in the Commission had not been compromised by any settlement agreement with Western Areas. The applicant also claimed costs against the respondents.
3. On 8 February 2023 I made orders that certain issues be determined separately from the other issues in the proceeding. Those issues related to the dispute between Mr Mpinda and Western Areas as to the existence of a settlement agreement and the alleged negligence of Mr Banovich for making an unauthorised settlement agreement if such an agreement had been made. On 13 February 2023 the Commission filed a submitting notice but reserved its right to be heard on the question of costs.
4. On 28 June 2024 I made orders by which the separate issues were determined, in effect, against Western Areas and in favour of Mr Banovich: Mpinda v Fair Work Commission (No 2) [2024] FCA 692. Thereafter, on 11 September 2024, I made orders lifting the stay on the claims against the Commission and declaring that Mr Mpinda's application for an unfair dismissal remedy under s 394 of the Fair Work Act against the second respondent and lodged with the first respondent on 23 September 2016 has not been discontinued or dismissed and that the first respondent has not otherwise exercised power pursuant to s 397 of the Fair Work Act to conduct a conference or hearing to determine the merits of that application. I also made orders dismissing the proceeding against Mr Banovich and standing over the remaining claims for relief in the proceeding for further directions at a case management conference listed for hearing on 5 February 2025: Mpinda v Fair Work Commission (No 3) [2024] 1179. The claims against the Commission and for costs against the Commission and Western Areas were stood over because it was anticipated that, in accordance with the submitting notice that the Commission had filed, it would be unnecessary to formally make a declaration or issue a writ of mandamus because the Commission would act on the declaration to the effect that Mr Mpinda's application in the Commission had not been compromised.
5. Consistently with that assumption, on 1 October 2024 a member of the Commission sent an email to Mr Mpinda, to the address that he has nominated as his email address for service in this proceeding, annexing a notice of listing and directions in the Commission which provided, among other things, an order that the parties attend a member-assisted conciliation on 18 October 2024, directions that Mr Mpinda send his materials in support of his unfair dismissal application by 25 October 2024 and listing the merits hearing of the application on 22 November 2024.
6. On 7 October 2024 Mr Mpinda sent an email to the Commission. In that email he referred to my orders and reasons for decision of 28 June 2024 and suggested that he had commenced an appeal from those orders even though he was successful. He also said that in those circumstances 'it is inappropriate and inadmissible for the Fair Work Commission to take over this matter while it is under appeal. The Commission is a party to the proceedings, and its involvement at this stage would undermine the integrity of the appeal process and my interests.'
7. On 18 October 2024 Western Areas attended the conciliation, but Mr Mpinda did not. On that same day the Commission sent an email to Mr Mpinda noting that Mr Mpinda had failed to attend the conciliation conference and that attempts were made by the Commission to contact him by telephone. That email said that the purpose of the conference was to explore the possibility of settling Mr Mpinda's unfair dismissal claim lodged in 2016 and that this Court had ruled that his claim was not settled or withdrawn and as such was still live in the Commission's system. The email also requested that Mr Mpinda advise the Commission by 21 October 2024 whether he intended attending a conciliation conference to discuss the settlement of his unfair dismissal application and if not, whether he intended attending the hearing of his unfair dismissal application.
8. Having received no response from Mr Mpinda, on 24 October 2024 the Commission sent another email to Mr Mpinda advising him of the Commission's power to dismiss his unfair dismissal application on application by Western Areas. On 29 October 2024 the Commission sent an email to the parties noting that Mr Mpinda had not complied with the Commission's directions to provide written submission and materials in support of his application by 25 October 2024. Consequently, the hearing listed for 22 November 2024 was vacated and the directions for that hearing revoked. That email further requested that Mr Mpinda explain his intentions with respect to his claim by 30 October 2024. Those emails were all sent to the same email address for Mr Mpinda. The Commission received no reply from Mr Mpinda.
9. On 14 November 2024 Western Areas filed an application in the Commission to dismiss Mr Mpinda's unfair dismissal application pursuant to s 399A of the Fair Work Act on the basis that Mr Mpinda had failed to attend a conference conducted by the Commission and failed to comply with a direction of the Commission. That application was served on Mr Mpinda by ordinary post at Mr Mpinda's last known physical address. On 2 December 2024 the Commission made orders dismissing Mr Mpinda's proceeding.
10. On 15 January 2025 Western Areas filed a minute of proposed orders in this Court by which it sought orders dismissing the balance of the proceeding against it together with a written outline of submissions and an affidavit of Hanneke Georgina Wiersma affirmed 15 January 2025 in support of those proposed orders. Ms Wiersma's affidavit of 15 January deposes of the facts outlined in [11] to [15] of these reasons.
11. On 15 January 2025 Western Areas' legal representatives sent the minute of proposed orders requesting that the 'proceedings against the Second Respondent be dismissed' together with the supporting submissions and Ms Wiersma's of 15 January 2025 by email to Mr Mpinda at his nominated email address for service.
12. On 21 January 2025 Western Areas' legal representatives filed an updated minute of proposed orders requesting that the entire proceeding be dismissed. On that same day the second respondent's legal representatives sent an email attaching that updated minute to Mr Mpinda at the same email address to which the other documents were sent. That email was also sent to my chambers and the Commission at its nominated address for service.
13. On 24 January 2025 my chambers sent an email to Mr Mpinda and the respondents' legal representatives indicating that as the Court had not received an indication as to Mr Mpinda's or the Commission's position with respect to the minute of proposed orders sought by Western Areas, the Court would maintain the case management hearing listing on 5 February 2025 to deal with the orders proposed by Western Areas.
14. Mr Mpinda is self-represented. He provided an email address in his originating application and several other documents filed by him. Therefore, he is taken to have agreed to receive documents at that email address: r 11.01(5) of the Rules. That is the same email address to which Western Areas sent the minutes of proposed orders and supporting submissions and affidavit and to which communications from my chambers have been sent. Mr Mpinda has previously sent emails to my chambers using that email address and, as mentioned earlier, sent an email to the Commission using that email address on 7 October 2024. No other email address for service for Mr Mpinda has been provided to the Court.
15. Mr Mpinda appeared in person at the hearing on 11 September 2024 at which the order listing the matter for a case management hearing on 5 February 2025, amongst others, was made. An interpreter was also present at the hearing of 11 September 2024 and she provided assistance to Mr Mpinda whose first language is French. The proceeding, orders and reasons for decision were interpreted from English into French at that hearing.
16. After the hearing, my chambers sent the sealed orders made on 11 September 2024 to Mr Mpinda's email address for service. My chambers have received no communications from Mr Mpinda with respect to the hearing on 5 February 2025.
17. In compliance with the direction referred to earlier in these reasons, Western Areas filed an affidavit of Ms Wiersma sworn on 6 February 2025. The facts referred to in [17] to [19] of these reasons are taken from that affidavit. Therefore, I am satisfied that Mr Mpinda was served with the application and the power in r 17.04 is enlivened.

Should relief for remaining claims be refused on discretionary grounds?

1. In para 1 of the amended originating application Mr Mpinda seeks a declaration to the effect that the Commission failed to exercise its power pursuant to s 397 of the Fair Work Act to conduct a conference or hearing to determine the merits of Mr Mpinda's application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act. In para 2 Mr Mpinda seeks the issue of a writ of mandamus against the Commission to compel its members to exercise power under s 394 of the Fair Work Act to conduct a conference or hold a hearing and determine the merits of Mr Mpinda's application for an unfair dismissal remedy.
2. On the findings of fact made in Mpinda (No 2) it is clear that the Commission did not exercise its powers under the relevant provisions of the Fair Work Act after December 2016 on the assumption that Mr Mpinda's application for an unfair dismissal remedy had been compromised. The declaration of the Court on 11 September 2024 was founded on findings to the effect that the assumption that the Fair Work claim had been compromised was erroneous. Thereafter, in October 2024 the Commission took steps to exercise its powers under the relevant provisions of the Fair Work Act. The Commission attempted to hold a conciliation conference to resolve merits of Mr Mpinda's unfair dismissal claim, but Mr Mpinda did not participate in the conference. The Commission had also listed a hearing on the merits of Mr Mpinda's unfair dismissal application but that was subsequently vacated due to Mr Mpinda's failure to attend the conference and comply with a direction of the Commission. Mr Mpinda's claim was then dismissed, bringing his unfair dismissal application in the Commission to an end in accordance with s 399A of the Fair Work Act.
3. Assuming the Court were to find that the Commission was in error for failing to exercise the relevant powers between December 2016 and October 2024, given that it has now attempted to exercise the powers and the unfair dismissal claim dismissed under s 399A of the Fair Work Act, there is manifestly no utility in issuing a writ of mandamus. Relief by way of a writ of mandamus is discretionary and, ordinarily, will be refused if there is no utility in granting the relief: see, e.g., the discussion of the applicable principles in the context of a constructive failure to perform a statutory power of investigation that was subsequently performed and completed, rendering mandamus inutile in Viscariello v Legal Profession Conduct Commissioner [2021] SASCFC 24 at [99]- [102] (Tilmouth AJ, Lovell and Hughes JJ agreeing). In the circumstances of this case, it is inevitable that the relief claimed for mandamus in para 2 would be refused on discretionary grounds because events have moved on since the originating application was filed in the proceeding rendering that relief futile.
4. It does not follow that because mandamus would be refused or is inapplicable that Mr Mpinda must leave the Court without remedy. The power to grant declaratory relief is also discretionary and while it is neither possible nor desirable to lay down rules as to the manner of its exercise, it is confined by considerations that mark out the boundaries of judicial power. Declaratory relief must be directed to the determination of legal controversies and not answering abstract or hypothetical questions. The person seeking the relief must have a real interest and will not be granted relief if the declaration will produce no foreseeable consequence for the parties. The concept of 'foreseeable consequences' may extend to practical utility: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
5. While the declaratory relief sought in para 1 of the amended originating application would be theoretically available, in the circumstances of this case there would be no legal or practical utility in granting the declaration. There was legal and practical utility in granting the declaration ordered on 11 September 2024 which, in effect, was the catalyst for the performance of the Commission's statutory duties and functions that Mr Mpinda complained had not been performed at the time the originating application was filed. Again, events have moved on and the unfair dismissal claim has been brought to an end through the exercise of the Commission's power under s 399A after attempting to determine that claim on its merits. Again, it is inevitable that the declaration claimed would be refused on the ground that it lacks utility and has no foreseeable consequences for the parties.
6. It follows that, in the circumstances of the events that have taken place after 11 September 2024, even if the legal foundation for the relief were demonstrated, the relief claimed in para 1 and para 2 of the amended originating application would be refused on discretionary grounds because there is no utility in the relief claimed. Accordingly, it is appropriate that an order be made dismissing the claims for all remaining relief in the proceeding because Mr Mpinda cannot succeed on those claims even if he establishes jurisdictional error on the part of the Commission.

1. The Commission made no application for its costs in accordance with its reservation of the right to do so in its submitting notice. Western Areas also made no application for its costs on its interlocutory application for dismissal. Accordingly, there will be no order as to the costs of the remaining part of the proceeding.

1. As Western Areas' interlocutory application was heard and determined in the absence of Mr Mpinda, the Court has power to set aside the orders, even after they have been entered, under r 39.05(a) of the Rules. Given that Mr Mpinda's first language is not English, he is self-represented and it is possible that he has a good explanation for his failure to attend the hearing on 5 February 2025, I will make an order requiring Western Areas to serve a copy of the sealed orders and these reasons on Mr Mpinda at his nominated email address for service and last known physical address.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.