Federal Court of Australia

Mpinda v Fair Work Commission [2022] FCA 1111

ORDERS

THE COURT ORDERS THAT:

1.    Until further order the proceedings against the first respondent are stayed and, otherwise, the first respondent’s interlocutory application for summary dismissal of the proceedings against it dated 21 January 2022 is dismissed.

2.    The third respondent’s interlocutory application for orders staying the proceedings against the third respondent dated 28 January 2022 is dismissed.

3.    The applicant has leave to file and serve an amended originating application by 10 October 2022 in a form that is consistent with the reasons for decision and to make claims for relief of the following nature:

(a)    A declaration against the second and third respondents to the effect that no binding agreement was made between the applicant and the second respondent to settle the applicant’s application for unfair dismissal remedy made under s 394 of the Fair Work Act 2009 (Cth) and lodged with the first respondent on 23 September 2016.

(b)    A declaration against the first respondent to the effect that the first respondent failed (actually or constructively) to exercise its power under s 397 of the Fair Work Act to conduct a conference or hold a hearing and determine the merits of the applicant’s application for unfair dismissal remedy.

(c)    Further and (or) alternatively to para (b), the issue of a writ of mandamus against the first respondent to compel its members to exercise power under s 397 of the Fair Work Act to conduct a conference or hold a hearing and determine the merits of the applicant’s application for unfair dismissal remedy.

(d)    In the alternative to paras (a) to (c), damages against the third respondent for breach of his retainer and (or) negligence in making an agreement to settle his application under s 394 of the Fair Work Act, as the applicant’s agent, without the authority or instructions of the applicant to make such an agreement.

(e)    In the alternative to paras (a) to (d), a sum in debt or damages against the second respondent for breach of the settlement agreement for failing to pay the amount due under that agreement.

4.    There is no order as to the costs of the first respondent’s application and third respondent’s application.

5.    The case management hearing is re-listed for not before 9.15 am on 19 October 2022 (AWST).

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    On 20 October 2021, the applicant (Mr Mpinda) filed an originating application in the Court and Mr Mpinda made an affidavit in support of that application sworn 20 October 2021. Mr Mpinda seeks various relief, explained in more detail later in these reasons, against the first respondent (Commission), the second respondent (Western Areas) and third respondent (Mr Banovich).

2    In September 2016, Mr Mpinda made an application in the Commission against Western Areas (as his former employer) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (unfair dismissal proceedings or application for unfair dismissal). Mr Banovich was Mr Mpinda’s solicitor in the unfair dismissal proceedings.

3    Mr Mpinda’s claim in this Court arises out of negotiations to resolve the unfair dismissal proceedings and communications between Mr Banovich, Western Areas and the Commission concerning the outcome of those negotiations. Western Areas contends that Mr Mpinda and Western Areas made a binding settlement agreement in December 2016 by which the unfair dismissal proceedings were settled. Western Areas sent the Commission a communication to that effect in December 2016. That communication resulted in the Commission treating the application for unfair dismissal as resolved and the Commission not conducting a conference or holding a hearing under ss 397 – 399 of the FW Act to determine the merits of the application. Amongst other allegations, Mr Mpinda contends that there was no agreement to settle the unfair dismissal proceedings. Mr Mpinda has not discontinued the application for unfair dismissal under s 588 of the FW Act and the application has not been dismissed under s 399A(1)(c) of the FW Act for his failure to do so.

4    On 21 January 2022, the Commission made an interlocutory application for orders summarily dismissing the proceedings against it pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). The Commission submits that Mr Mpinda has no reasonable prospect of successfully prosecuting the proceeding against it and (or) the originating application fails to disclose any reasonable cause of action against it.

5    Western Areas has submitted that the Court should act on its own motion and summarily dismiss the proceedings against Western Areas pursuant to r 1.40 of the Rules and s 31A of the FCA Act and r 26.01(1) of the Rules. Western Areas has not made an interlocutory application in support of that submission. Western Areas submits that Mr Mpinda has no reasonable prospect of successfully prosecuting the proceeding against it and (or) the originating application fails to disclose any reasonable cause of action against it.

6    On 28 January 2022, Mr Banovich made an interlocutory application for orders to stay the proceedings against him until, in effect, final determination of the application for unfair dismissal in the Commission. Mr Banovich relies on s 23 of the FCA Act and the inherent or implied power of the Court to control its own proceedings.

7    For the reasons which follow, the proceedings against the Commission are to be stayed and, otherwise, the Commission’s application is dismissed. The Court will not, of its own motion, summarily dismiss the proceedings against Western Areas. Mr Banovich’s application for orders to stay the proceedings against him is also dismissed.

Procedural history

8    On 16 December 2021, the Court made orders, amongst others, requiring any application for summary judgment by any of the respondents to be filed and served on or before 21 January 2022 and any respondent who had not filed and served an application for summary judgment to file and serve a written outline of submissions on or before 4 February 2022 in respect of any application for summary judgment.

9    On 21 January 2022, the Commission made its application for summary dismissal. On 28 January 2022, Mr Banovich made his application to stay the proceedings against him. On 4 February 2022, Western Areas filed written submissions in accordance with the orders of the Court of 16 December 2021 in which it submitted that the Court should, of its own motion, dismiss the proceedings against it.

10    On 12 April 2022, the applications of the Commission and Mr Banovich were heard and the matter was adjourned part heard. The applications were relisted on 20 June 2022 and further submissions made on behalf of each of the parties. At the conclusion of that hearing, orders to the following effect were made:

1.    By 4.00 pm on 15 July 2022, [the Commission] is to file and serve written submissions in support of the contention that the Federal Court of Australia does not have jurisdiction to hear and determine whether [Mr Mpinda] and [Western Areas] made an agreement to settle [Mr Mpinda’s] unfair dismissal claim against [Western Areas] made pursuant to s 394 of the Fair Work Act 2009 (Cth).

2    By 4.00 pm on 29 July 2022, [Mr Mpinda] and [Western Areas] and [Mr Banovich] are to file and serve any written submissions in response to [the Commission’s] submissions on that contention.

11    On 14 July 2022, the Commission filed written submissions by which it submitted, in effect, that the Court has jurisdiction to hear and determine whether Mr Mpinda and Western Areas made a binding agreement to settle the application for unfair dismissal. The Commission made further submissions as to the implications of that jurisdiction for its application for summary dismissal of the proceedings against it.

12    On 29 July 2022, Mr Mpinda filed further written submissions on the question of the Court's jurisdiction. Neither Western Areas nor Mr Banovich filed any further written submissions.

13    Having considered the written submissions of the Commission and Mr Mpinda and the absence of further submissions of the other parties, I do not consider it is necessary to hear further oral argument on the issue of the Court’s jurisdiction. For the reasons set out later, I consider that the Court has jurisdiction to determine the issue of whether Mr Mpinda and Western Areas made an agreement to settle the application for unfair dismissal under s 394 of the FW Act and (or) s 39B of the Judiciary Act 1903 (Cth).

Applicable principles

14    A person who wants to start a proceeding in the Court’s original jurisdiction must file an originating application, in accordance with Form 15: r 8.01(1) of the Rules. Amongst other things, an originating application must state the relief claimed and, if the relief is claimed under a provision of an Act, the Act and the provision under which the relief is claimed: r 8.03(1) of the Rules. Consistently with that rule, Form 15 provides:

Details of claim

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1.    [Specify in numbered paragraphs all final relief you seek. If you seek relief under a provision of an Act, state the Act and the provision under which the relief is claimed. If you seek an injunction or declaration, give details of the order you seek. If you seek exemplary damages, give details of the claim for exemplary damages. The originating application need not include a claim for costs.]

…

15    Rule 8.05 provides that an originating application must be accompanied by a statement of claim, affidavit or another accompanying document for which provision is made in a practice note issued by the Chief Justice. If the originating application is accompanied by an affidavit, that affidavit must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial: r 8.05(4) of the Rules. If the originating application is accompanied by a statement of claim, the statement of claim is to state such material facts: r 16.02(1)(d) of the Rules. A statement of claim is also to state the specific relief sought or claimed and the applicant is not entitled to seek any additional relief to the relief claimed in the originating application: rr 16.02(1)(f), 16.02(4) of the Rules.

16    It follows that it is not necessary for an applicant to state the material facts, or any facts, upon which the applicant relies in an originating application. The originating application is only required to state the relief claimed and, if the relief is claimed under a provision of an Act, the Act and the provision under which the relief is claimed. Where an originating application is accompanied by an affidavit, the only statement of the relief claimed is to be in the originating application and the material facts in support of the claimed relief are to be stated in the affidavit.

17    In general, the expression ‘cause of action’ is used to describe a factual situation the existence of which entitles one person to obtain from a court a remedy against another person: Morgan v Banning (1999) 20 WAR 474 at 476, 484, citing with approval Letang v Cooper [1965] 1 QB 232 at 242-243 (per Diplock LJ). See, also, Fewin Pty Ltd v Prentice [2018] FCA 852 at [69]-[71]. So understood, an affidavit accompanying an originating application may state material facts that disclose a ‘cause of action’ even if the cause of action so disclosed does not entitle the applicant to relief claimed in the originating application. That is, it may disclose an entitlement to obtain from the Court a remedy, but not the remedy claimed in the originating application. If the cause of action were made out at trial, the absence of a claim for the available remedy in the originating application would not prevent the Court from granting the applicant the remedy to which the applicant is entitled for the cause of action proved: s 22 of the FCA Act; Noble Investments Pty Ltd v Southern Cross Exploration NL [2008] FCA 1963; (2008) 174 FCR 301 at [34].

18    Section 31A(2) of the FCA Act, provides that the Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

Pursuant to s 31A(3) of the FCA Act, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

19    Pursuant to r 26.01(1) of the Rules, a party may apply to the Court for an order that judgment be given against another party because the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding, the proceeding is frivolous or vexatious, or no reasonable cause of action is disclosed.

20    Pursuant to r 26.01(2) of the Rules, the application must be accompanied by an affidavit stating: (a) the grounds of the application; and (b) the facts and circumstances relied on to support those grounds. If an order is made dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order: r 26.01(4) of the Rules.

21    Section 31A(2) of the FCA Act and r 26.01(1) of the Rules each contain the standard of ‘no reasonable prospect of successfully prosecuting the proceeding’. However, there is no qualification or clarification of the standard in the Rules equivalent to s 31A(3) of the FCA Act. Aside from that difference, the standards are identical. In Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130 (at [11]) Jackson J considered the ordinary meaning of ‘no reasonable prospect of successfully prosecuting the proceeding’ to be the same in s 31A(2) and r 26.01(1). I accept that is correct and will proceed on the basis that the test is the same under the FCA Act and under the Rules.

22    The principles to be applied in the application of the test ‘no reasonable prospect of successfully prosecuting the proceeding or … part of the proceeding’ are well established. Jackson J summarised the applicable principles in the following manner in Quach (at [12]) with which I respectfully agree and gratefully adopt:

…

(1)    It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].

(2)    It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22].

(3)    As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].

(4)    The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].

(5)    Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].

(6)    Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court 'may' give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; 259 ALR 319; [2009] FCAFC 117 at [28].

(7)    A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

23    Rule 26.01(1) also includes ‘no reasonable cause of action is disclosed’ as a ground for judgment. It seems to me that there is not a great deal of difference between an absence of a reasonable cause of action and a proceeding or part of a proceeding for which there is no reasonable prospect of a successful prosecution. However, there may be circumstances in which a reasonable cause of action is disclosed yet there is no reasonable prospect of successfully prosecuting that cause of action. For example, because the evidence necessary to prove the material facts at trial is not available: White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [51]. Otherwise, if it is demonstrated that no reasonable cause of action is disclosed for the purposes of summary judgment under r 26.01(1), as opposed to the failure to disclose a reasonable cause of action in a statement of claim for the purposes of a strike-out under r 16.21(2), it will also be demonstrated that there is no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding to which the applicable cause of action relates.

24    Section 31A is not an appropriate procedure for applying to strike-out the relief sought in an originating application. The relevant question on an application under s 31A is whether the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Put another way, the question is not whether the applicant has no reasonable prospect of obtaining the relief claimed in the originating application. The Court gives judgment in respect of the issues as these amount to a cause of action in the proceedings. If the applicant proves facts that amount to a cause of action, the Court will give judgment for the applicant on the cause of action and fashion the relief to which the applicant is entitled. If the applicant fails to prove facts that amount to a cause of action, the Court will not give judgment by dismissing the relief claimed, but by dismissing the proceedings: Noble Investments at [34].

25    Pursuant to r 6.01, if a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the court for an order that the matter be struck out of the document. Therefore, if a respondent is able to demonstrate that the applicant could not obtain any part of the relief claimed, that part of the originating application may be struck out, but that is not to give judgment for the respondent on that part of the relief claimed: Noble Investments at [40]. Also, pursuant to r 8.21(1)(a), an applicant may apply to the Court for leave to amend an originating application for any reason, including to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding. Accordingly, a claim for relief that is struck out may be capable of cure by adding a claim for relief if the material facts set out in the document accompanying the originating application disclose a reasonable cause of action for that relief.

26    It is also relevant to note that pursuant to r 1.32, the Court may make any order that the Court considers appropriate in the interests of justice. Pursuant to r 1.34, the Court may dispense with compliance with any of the Rules, either before or after the occasion for compliance arises. Pursuant to r 1.40, the Court may, at any stage of the proceeding, exercise a power mentioned in the Rules in the proceeding on its own initiative.

27    It follows that the approach to be taken to the present applications is that before considering whether to summarily dismiss the proceedings against the Commission and Western Areas or stay the proceeding against Mr Banovich, the Court must be satisfied that Mr Mpinda’s affidavit in support fails to disclose a reasonable cause of action for the relief claimed in the originating application and for any relief that may be claimed with reasonable amendment to the originating application or, otherwise, Mr Mpinda has no reasonable prospects of successfully prosecuting the proceedings against the Commission, Western Areas and Mr Banovich. For the reasons which follow, while I am satisfied that the originating application and Mr Mpinda’s affidavit in support fail to disclose any reasonable cause of action against the Commission for damages, I am not satisfied that Mr Mpinda has no reasonable prospect of successfully prosecuting the proceedings against each of the Commission, Western Areas and Mr Banovich.

The originating application and Mr Mpinda’s affidavit in support

28    As set out in [15] of these reasons, pursuant to r 5.05 of the Rules an originating application seeking relief that includes damages must be accompanied by a statement of claim or alternative accompanying document(s), as indicated by the Court’s practice notes. In the event that the alternative accompanying document is in affidavit form, it must comply with the conditions set out in r 8.05(4) of the Rules.

29    Paragraph 4.1 of Employment and Industrial Relations Practice Note (E&IR-1) provides that, subject to matters clarified later in the note, the Rules apply to the commencement of proceedings in the Employment and Industrial Relations National Practice Area. Paragraph 4.2 of E&IR-1 provides an originating application must be accompanied by a statement of claim, affidavit or, in appropriate cases, a concise statement. If damages are claimed in an originating process, it is not clear to me whether E&IR-1 requires it to be accompanied by a statement of claim or if it may be accompanied by an affidavit. In any case, if accompanied by an affidavit, para 4.6 of E&IR-1 provides that the affidavit is to be treated as a statement of the party’s factual case in the proceedings whether or not the affidavit contains evidence that would be admissible at trial.

30    Irrespective of whether or not the originating application was required to be accompanied by a statement of claim, for the purposes of the applications before the Court, if required, I dispense with that requirement under r 1.34 of the Rules and will treat Mr Mpinda’s affidavit in support as a statement of his factual case. Further, that affidavit is to be read with the originating application for the purpose of considering if Mr Mpinda has a reasonable prospect of successfully prosecuting the proceeding or part of the proceeding or if a reasonable cause of action is disclosed.

31    Taking into account that Mr Mpinda is self-represented and French is his first language, some allowance must be made for the manner in which he has articulated his claims in the originating application and his supporting affidavit. Nonetheless, it is difficult to distil from these documents the precise nature of Mr Mpinda’s asserted causes of action against each of the respondents.

32    The substance of the factual foundation of Mr Mpinda’s claims disclosed in his affidavit in support may be summarised as follows:

(1)    From July to September 2016, Western Areas employed Mr Mpinda as a lab technician.

(2)    On 2 September 2016, Western Areas terminated Mr Mpinda’s employment.

(3)    On 23 September 2016, Mr Mpinda lodged an application in the Commission under s 394 of the FW Act for an order granting an unfair dismissal remedy.

(4)    The Commission opened a file and assigned it the matter number U2016/11834.

(5)    Mr Banovich represented Mr Mpinda in the unfair dismissal proceedings.

(6)    The Commission listed a conciliation before a Commission conciliator or 2 December 2016 and a conciliation took place on that day.

(7)    The application for unfair dismissal was not settled at the conciliation on 2 December 2016, but there were negotiations after the conciliation and exchanges of email correspondence between Mr Banovich and the solicitors representing Western Areas.

(8)    The exchanges of correspondence ended with an email dated 9 December 2016 from a solicitor representing Western Areas to Mr Banovich which included the following statement:

I confirm that my client accepts your clients offer, the terms of which are to be captured in a deed of settlement containing the usual provisions regarding confidentiality and non-disparagement to be signed by the parties.

(9)    A solicitor representing Western Areas sent an email dated 12 December 2016 to a Commission conciliator, copied to Mr Banovich, which included the following statement:

I confirm the parties have reached an agreement to settle this matter on mutually acceptable terms.

I am in the process of preparing the draft deed of settlement and intend to be in a position to provide this to Mr Banovich for his client’s review early this week.

(10)    The solicitors for Western Areas prepared a draft deed of settlement. Mr Mpinda did not sign that deed nor did he approve its terms.

(11)    Mr Mpinda did not provide Mr Banovich with authority to settle the application for unfair dismissal on the terms set out in the draft deed of settlement.

(12)    Western Areas has not made any payment to Mr Mpinda in accordance with the terms of the draft deed of settlement or at all.

(13)    Mr Mpinda did not lodge a Form 50 notice of discontinuance in the Commission withdrawing his claim.

(14)    The Commission has not convened a conference or held a hearing and determined the merits of the application for unfair dismissal.

(15)    By email dated 7 April 2020 from an assistant director-case management of the Commission to Mr Mpinda (or his representative) it was said:

I have looked at the record of your unfair dismissal application and can confirm that your application is closed and was recorded as having settled.

(16)    The application for unfair dismissal has not been discontinued in accordance with s 588 of the FW Act and has not been dismissed in accordance with s 399A or under any other provision of the FW Act.

33    Mr Mpinda deposed to facts by which he alleges that he did not make an agreement with Western Areas to settle the application for unfair dismissal. Mr Mpinda also alleges, in substance, to the extent that Mr Banovich may have made any agreement on Mr Mpinda’s behalf, Mr Banovich did not have authority to make that agreement and did not have authority to make an agreement on the terms reflected in the draft deed of settlement. Mr Mpinda contends, in substance, that the solicitors for Western Areas should not have informed the Commission that the unfair dismissal proceedings had been settled, Mr Banovich should not have acquiesced in Western Areas' solicitors making that representation to the Commission and the Commission should not have closed its file. The Commission should have proceeded to determine the merits of the application for unfair dismissal in accordance with s 397 of the FW Act.

34    In paras 4, 5, 7, 8 and 9 of Mr Mpinda’s affidavit in support he characterises the respondents’ conduct as, in substance, that the Commission, Mr Banovich and Western Areas acted in concert to deprive him of his right to a determination of the merits of his application for unfair dismissal and, thereby, he has suffered loss or damage. The relevant asserted acts of the respondents are as follows.

(a)    The Commission closed its file in the unfair dismissal proceedings without Mr Mpinda’s consent and failed to conduct a conference or hold a hearing contrary to s 397 of the FW Act.

(b)    Mr Banovich secretly settled the unfair dismissal proceedings with Western Areas without Mr Mpinda’s consent and without advising Mr Mpinda that he was not obliged to attend or engage in the conciliation conference.

(c)    Western Areas brought about the Commission’s closure of its file knowing that Mr Mpinda had not agreed to the resolution of the unfair dismissal proceedings.

Mr Mpinda asserts that there was a ‘malicious arrangement’ between the Commission, Mr Banovich and Western Areas. He asserts that Western Areas ‘chose to settle the matter fraudulently, under the aegis of the Commission, with [Mr Banovich]’.

35    It is evident that Mr Mpinda has used the expression ‘fraudulently’ to described Western Areas’ conduct to ‘settle’ with Mr Banovich and communicate a settlement to the Commission in circumstances in which he alleges that Western Areas knew that he had not agreed to the terms of any settlement. The expression ‘aegis of the Commission’ is used to describe the circumstances in which he alleges that the Commission accepted that there had been a settlement in the absence of any communication from Mr Mpinda to that effect or a formal discontinuance of the application for unfair dismissal. It also appears that Mr Mpinda alleges Mr Banovich negotiated with Western Areas without Mr Mpinda’s authority and Western Areas knew that Mr Banovich did not have authority to settle the unfair dismissal proceedings.

36    Separately, Mr Mpinda asserts, in paras 1, 7 and 16 of his affidavit in support, that no binding settlement agreement was made between Western Areas and him. As a consequence, he asserts that his rights have been thwarted in that the Commission has not proceeded to conduct a conference or hold a hearing because it closed its file without a binding settlement agreement having been made.

37    In the originating application Mr Mpinda claims relief in the following terms:

Details of claim

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1.    Plaintiff seeks relief for damages for the harm caused by the fault of the Fair Work Commission, Western Areas, and the solicitor Stefan Banovich.

2.    The Respondents not only fundamentally breached each of the Fair Work Act 2009, Ss 397 & 398, and the Fair Work Commission Rules 2013, S.12, the procedural, ethical, and professional rules required, and this deliberate breach engages the civil liability of each of them, by the intentionally committed fault, but also, caused immeasurable damage to the Applicant, both morally (stress, worry, insomnia, shock, distress or humiliation), financially (deprivation of allowances all combined) and materially (unemployment, loss of employment, deprivation of achievement of objectives to be achieved before retirement, etc.,).

3.    It is therefore right that the august Federal Court of Australia by judgment condemns all the Respondents jointly and severally liable to pay in Australian dollars the sum of$ 400,000 as damages for damages suffered by the Applicant because of their intentional fault.

4.    FOR THESE REASONS, PLEASE THE FEDERAL COURT OF AUSTRALIA:

- Declare this action admissible and amply founded.

- To annul the decision noting the closure of the file at the level of the Fair Work Commission made by proven fraud in the application of the principle "Frauss omnia corrumpit":

- Order the Respondents to pay the sum of $ 400,000 as damages for compensation for the damage suffered.

- Charge the Respondents to costs.

5.    And Justice will be done

38    Paragraphs 1, 2 and 3 and the third bullet point under para 4, comprise a claim for damages for some form of intentional tort committed against Mr Mpinda or, possibly, breach of a statutory duty.

The Commission's application

39    The Commission submitted that it understands Mr Mpinda’s claims to be as follows:

(a)    The Commission breached ss 397 and 398 of the FW Act and r 12 of the Fair Work Commission Rules 2013 (Cth).

(b)    That breach gives rise to civil liability resulting in harm caused to Mr Mpinda.

(c)    Mr Mpinda is entitled to claim damages in respect of direct and consequential loss.

(d)    The decision of the Commission to ‘close’ its file in respect of the application for unfair dismissal should be annulled.

Claim for damages

40    The Commission submitted that there is no power under the FW Act to order general damages, or other relief against the Commission for breach of ss 397 or 398 or r 12. Further, there is no power under the FW Act to order general damages against the Commission in relation to its performance of its functions or powers. That is, there is no right to claim damages for breach of the FW Act.

41    However, the better characterisation of the material facts and relief claimed is damages for the tort of conspiracy not damages for breach of ss 397 and 398 of the FW Act. Mr Mpinda asserts, in effect, that the Commission, acting in combination with Western Areas and Mr Banovich, deliberately or intentionally failed to exercise its powers under ss 397 and 398. A conspiracy by lawful means requires an agreement or combination between two or more persons to perform acts which, although not unlawful, are done with the sole or predominant purpose of injuring a person. A conspiracy by unlawful means requires an agreement or combination between two or more persons to perform unlawful acts with intention, which need not be the sole or predominant purpose of the conspirators, to injure a person.: Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580; (2020) 386 ALR 331 at [31]-[34] and [42]-[43]. To the extent Mr Mpinda claims damages for conspiracy, his affidavit in support fails to disclose a reasonable cause of action because none of the material facts asserted in that affidavit disclose an agreement or combination between the Commission, Western Areas and Mr Banovich to perform any acts (lawful or unlawful) for the purpose of injuring Mr Mpinda. Moreover, no material facts are alleged from which it is possible to identify an allegation of an intention to injure the applicant, in the sense that the alleged acts of the respondents were aimed or directed at the applicant.

42    The relevant asserted material facts are to the effect that:

(a)    the Commission closed its file and has not conducted a conference or held a hearing because Western Areas (through its solicitors) notified the Commission that Mr Mpinda and Western Areas had made an agreement to settle his application for unfair dismissal;

(b)    Western Areas notified the Commission of the settlement agreement at the conclusion of negotiations carried out between Western Areas and Mr Banovich; and

(c)    Mr Mpinda had not given Mr Banovich authority to make a binding agreement to settle the application for unfair dismissal.

These material facts do not identify facts by which an ‘agreement’ was made between the Commission, Western Areas and Mr Banovich to act in concert for the purpose of preventing the Commission from exercising its powers under ss 397 and 398 of the FW Act. The assertion in Mr Mpinda’s affidavit in support of a ‘malicious arrangement’ is a conclusion that is not supported by the material facts stated in the affidavit.

43    While the acts of each of the Commission, Western Areas and Mr Banovich may have been necessary to bring about the closure of the Commission’s file, the fact that there was a combination of actions that had the result of closure of the file does not support an inference that there was an 'agreement' between the actors (the Commission, Western Areas and Mr Banovich) to act in concert to bring about that result. On the asserted facts, it is equally, if not more probable, that each of the Commission, Western Areas and Mr Banovich acted separately and independently of the others. The existence of an agreement is mere speculation.

44    If Mr Mpinda were asserting a cause of action for damages for ‘breach’ of ss 397 and 398 of the FW Act, I accept the Commission’s submission to the effect that Mr Mpinda has no reasonable cause of action for such damages as there is no power under the FW Act to order damages against the Commission for ‘breach’ of ss 397 and 398. Further, there is no power under the FW Act to order damages against the Commission in relation to the performance of its function or powers. There is no other evident ground for a cause of action for damages for breach of a statutory duty.

45    Although not raised by the Commission or the subject of submissions to the Court, judicial immunity is an additional reason for considering that the originating application and Mr Mpinda’s affidavit in support fail to disclose a reasonable cause of action against the Commission for damages for conspiracy, damages for breach of statutory duty, or damages for any other civil wrong.

46    Chapter 5, Div 2 of the FW Act makes provision for the establishment and functions of the Commission. Pursuant to s 575, the Commission consists of the President, two Vice Presidents, such number of Deputy Presidents as, from time to time, hold office under the Act, such number of Commissioners as, from time to time, hold office under the Act and six Expert Panel Members. Therefore, the Commission is comprised of its members. Although the Commission is the party to the proceedings, in substance, it is the individual members who are collectively the respondents in the proceedings.

47    The Commission has the privileges and immunities of the Crown in right of the Commonwealth: s 579 of FW Act. A Commission member has, in performing his or her functions or exercising his or her powers as a Commission member, the same protection and immunity as a Justice of the High Court: s 580 of the FW Act.

48    The protection and immunity of a Justice of the High Court is not the subject of legislative provision. It is the protection and immunity conferred under the common law and, perhaps, such as is to be derived by implication from Chapter III of the Constitution: Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379 at [3]. Under the common law there is a well-established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [30].

49    While there may be room for argument about the scope of the immunity where there is a supportable allegation that the judicial officer acted without jurisdiction, in that circumstance it is at least necessary to demonstrate that the judicial officer acted in bad faith to take the act of which complaint is made outside the scope of the immunity: Rajski v Powell (1987) 11 NSWLR 522 at 539; Sirros v Moore [1975] QB 118 at 135, 140 - 141, 149 - 150. Further, in that context, ‘jurisdiction’ is referable to the broad and general authority conferred upon the judicial officer to hear and determine the issues. The judicial officer’s ‘authority to decide’ is the test, not the mode or decision nor the manner in which the powers have been exercised or have not been exercised: Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602 at [28] – [29]; Gallo v Dawson (1988) 82 ALR 401 at 402.

50    The Commission is immune from any liability for damages arising from a failure (if there were a failure) to exercise power under s 397 of the FW Act. The constructive ‘decision’ not to exercise power was made in respect of a matter that was otherwise regularly before the Commission and in respect of which it had authority to decide. Therefore, the Commission is immune from suit. Further, and in any event, even if that ‘decision’ were considered to be outside the relevant jurisdiction of the Commission, no material facts are disclosed in Mr Mpinda’s affidavit to support an allegation that any member of the Commission acted in bad faith for failing to convene a conference or hold a hearing.

51    For completeness, there are also no allegations capable of supporting a claim in damages against the Commission (or any member) for misfeasance in public office. That is, there are no material facts asserted that disclose a reasonable claim that any member of the Commission, or any delegate of a member of the Commission, maliciously or recklessly (with the intention of injuring a person) used power or knowingly acted in excess of that power: see, e.g., Northern Territory v Mengel (1995) 185 CLR 307 at 370; Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311 at [81].

52    It follows that judicial immunity is a further reason for considering that the material facts set out in Mr Mpinda’s affidavit in support fail to disclose a reasonable cause of action for damages for any tort, breach of statutory duty or other civil wrong.

Claim for annulment

53    The Commission submits that it has not made a ‘decision’ in respect of the application for unfair dismissal. Accordingly, there is no ‘decision’ that is capable of annulment. Further, there is no ‘decision’ to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies. The Commission submits that no relief is sought falling within s 562 of the FW Act. Section 39B of the Judiciary Act is not applicable because a writ of mandamus or prohibition is not requested as relief. Further, no relief of that nature is available because a ‘decision’ has not been made and Mr Mpinda may request the Commission to reinstate the application for unfair dismissal. For these reasons, Mr Mpinda has no reasonable prospect of successfully prosecuting a claim for annulment.

54    As noted earlier in these reasons, in the context of an originating application, a ‘cause of action’ may be described as a factual situation which will entitle a person to approach the Court for relief. Relief for a cause of action may not necessarily be the relief claimed in the originating application, but relief of a kind that may be granted for the cause of action disclosed in the material facts set out in the document accompanying the originating process.

55    The facts deposed in Mr Mpinda’s affidavit disclose a reasonable cause of action for a declaration to the effect that Mr Mpinda made no binding agreement with Western Areas to settle the application for unfair dismissal. That cause of action may be pursued with reasonable amendment to the relief claimed in the originating application and, accepting the facts deposed to be true, there is a real question to be tried.

56    During the course of the oral hearings, counsel for the Commission made a submission to the effect that the Court does not have jurisdiction to determine the issue of whether Mr Mpinda and Western Areas made a settlement agreement as that is a matter that was within the jurisdiction of the Commission and ought to be determined by the Commission within the unfair dismissal proceedings. At the conclusion of the hearing 20 June 2022, orders were made directing the Commission to file submissions in support of that contention and for the other parties to file any submissions those parties wish to make on that matter.

57    The Commission subsequently filed written submissions that, in substance, submit that contrary to its oral submissions, the Court has jurisdiction to hear and determine the issue of whether Mr Mpinda and Western Areas made an agreement to settle the unfair dismissal proceedings. No other party has made a submission to the effect that the Court does not have jurisdiction to determine that issue. Having regard to the Commission’s written submissions and the absence of contrary submissions from any other party, I do not consider it is necessary to hear further oral submissions from the parties on that issue. Accordingly, I have proceeded to determine that issue on the papers.

58    In accordance with s 19 of the FCA Act the Court has such original jurisdiction as is vested in it by laws made by Parliament. Pursuant to s 562 of the FW Act, jurisdiction is conferred on the Court in relation to any matter (whether civil or criminal) arising under the FW Act.

59    The expression ‘any matter… arising under [the FW Act]’ is in similar terms to s 39B(1A)(c) of the Judiciary Act which provides that the original jurisdiction of the Court also includes jurisdiction in any matter arising under any laws made by Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. That language also reflects the language of s 76(ii) of the Constitution, by which the Parliament may make laws conferring original jurisdiction of the High Court in any matter arising under any law made by Parliament, and s 77(i) of the Constitution, by which the Parliament may make laws defining the jurisdiction of any federal court other than the High Court.

60    For the purposes of the expression ‘any matter arising under any laws made by Parliament’ the ‘matter’ is the justiciable controversy between the parties involved, comprised of the substratum of facts representing or amounting to the dispute or controversy between them. It is not the cause of action and is identifiable independently of a proceeding or proceedings brought for its determination: Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 603-608; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [50].

61    In Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 (at [18]) the Court (per Allsop CJ, Besanko and White JJ) said:

A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416.

62    Irrespective of whether or not Mr Mpinda has a reasonable prospect of successfully prosecuting the proceedings against the Commission, it is, at least, reasonably arguable that a ‘matter’ (justiciable controversy) arises under the FW Act in that a right to make a claim for an unfair dismissal remedy is a claim under that Act and the controversy (the issue of whether a settlement agreement was made) owes its existence to Commonwealth legislation (the FW Act). Therefore, it is reasonably arguable that, on any view, the Court has jurisdiction to determine the issue of whether or not Mr Mpinda and Western Areas made a settlement agreement. That jurisdiction is conferred on the Court under s 562 of the FW Act and (or) s 39B(1A)(c) of the Judiciary Act.

63    Pursuant to s 39B(1) of the Judiciary Act, the original jurisdiction of the Court also includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. Section 39B(1) confers on the Court the original jurisdiction of the High Court under s 75(v) of the Constitution in accordance with s 77(i) of the Constitution.

64    Pursuant to s 21 of the FCA Act, the Court may, in civil proceedings in relation to a matter in which he has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. Pursuant to s 23 of the FCA Act, the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. In accordance with ss 21 and 23, the Court may issue a writ of mandamus against an officer of the Commonwealth and (or) made a declaration of right in respect of administrative action or inaction of an officer of the Commonwealth: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 - 582. It is not necessary for an applicant that claims a declaration to invoke the judicial review procedure of the Court, but judicial review considerations remain relevant to discretion to grant declaratory relief: e.g., Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518 at [22] - [30]. The Court may also make a declaration of right between private parties.

65    Section 397 of the FW Act provides that the Commission ‘must conduct a conference or hold a hearing in relation to a matter arising under [Pt 3.2] if, and to the extent that, the matter involves facts the existence of which are in dispute’. Section 398 deals with conferences. Section 399 deals with hearings. A conference or a hearing is the process by which the Commission determines the merits of an application made under s 394.

66    Section 588 of the FW Act provides that a person who has applied to the Commission may discontinue the application in accordance with the procedural rules of the Commission. An application that is discontinued brings the proceedings to an end: Tomlinson v Leveda Inc (1996) 65 IR 178 at 180. Section 399A of the FW Act provides that the Commission may dismiss an application under s 394 if satisfied that the applicant has unreasonably failed to discontinue the application after a settlement agreement has been concluded.

67    On the facts deposed in Mr Mpinda’s affidavit, the application for unfair dismissal has not been discontinued or dismissed. Therefore, if a finding were made that no agreement to settle was made between Mr Mpinda and Western Areas, it would be reasonably arguable that the Commission was required (must) in accordance with s 397 of the FW Act to conduct a conference or hold a hearing and determine the merits of the application for unfair dismissal. It would be reasonably arguable that the Commission’s inaction (closure of its file) in the absence of Mr Mpinda discontinuing the application or dismissal of that application involves a failure to exercise power on the part of the Commission. That failure to exercise power is not authorised by the FW Act and, as such, involves jurisdictional error that is susceptible to review in the Court under s 39B of the Judiciary Act. As noted above, relief may take the form of a writ of mandamus and (or) a declaration.

68    While the originating application does not, in terms, claim declaratory relief and (or) mandamus as consequence of the Commission’s failure to exercise power under ss 397 – 399 of the FW Act, it does assert a breach of ss 397 and 398 of the FW Act and request the Court ‘[t]o annul the decision’. Here, relevantly, the ‘decision’ was to take no action to convene a conference or hold a hearing (close the file). Taking into account that Mr Mpinda represents himself and his first language is French, it is sufficiently clear from the originating application and Mr Mpinda’s affidavit in support that the nature of the relief he claims encompasses an order that has the effect of reversing the practical consequences of the closure of the Commission’s file. Such an order may take the form of an order compelling the Commission to determine the merits of the application for unfair dismissal and (or) a declaration of his right to have the application for unfair dismissal so determined. I am prepared to treat the originating application in an holistic manner and as a claim, in substance, for orders to that effect.

Reasonable prospects of success against the Commission

69    On balance despite the evident difficulties with the manner in which the originating application and Mr Mpinda’s affidavit is support express his claims for relief and the material facts upon which he relies, I am not satisfied that judgment should be given in favour of the Commission. I am not satisfied that Mr Mpinda has no reasonable prospect of prosecuting that part of the proceeding that concerns the Commission or that no reasonable cause of action is disclosed against the Commission. Further, insofar as the originating application is defective because it claims relief that cannot be granted against the Commission, reasonable amendment may cure that deficiency and, otherwise, there are real questions to be tried.

Western Areas

70    As noted earlier in these reasons, Western Areas has not made any application for summary dismissal nor filed any affidavit in support. It has requested the Court to act on its own motion. It largely relies on the Commission’s submissions with respect to Mr Mpinda’s claim for damages.

71    For the reasons given above, except for judicial immunity, the originating application and Mr Mpinda’s affidavit in support do not disclose a reasonable cause of action for damages against Western Areas for the tort of conspiracy or breach of statutory duty. However, for the reasons given above, a reasonable cause of action is disclosed for a declaration to the effect that no binding settlement agreement was made between Mr Mpinda and Western Areas. Therefore, I am not satisfied that Mr Mpinda has no reasonable prospect of successfully prosecuting that part of the proceedings against Western Areas.

72    Further, if a finding were made that there was a binding settlement agreement, I am not satisfied that Mr Mpinda would not be entitled to any other relief against Western Areas. In that event, in the alternative to a declaration to the effect that there was no binding settlement agreement, the facts deposed in Mr Mpinda’s affidavit disclose a reasonable cause of action for breach of the settlement agreement in that Mr Mpinda has not been paid the settlement sum. At least, the facts deposed indicate that there is a real issue to be tried in that regard.

Mr Banovich

73    Mr Banovich submitted that a stay of the proceedings against him should be granted until the final determination of the application for unfair dismissal. That submission was founded on contentions that Mr Mpinda had no claim against Mr Banovich for the reasons the Commission submitted that there was no reasonable prospect of successfully prosecuting the damages claim against the Commission and that Mr Mpinda remains free to have the application for unfair dismissal determined in the Commission.

74    For the reasons given above, except for judicial immunity, the originating application and Mr Mpinda’s affidavit is support do not disclose a reasonable cause of action for damages against Mr Banovich for the tort of conspiracy or breach of statutory duty. However, for the reasons given above, a reasonable cause of action is disclosed for a declaration to the effect that no binding settlement agreement was made between Mr Mpinda and Western Areas. Mr Banovich is a party who is interested in the outcome of that cause of action.

75    The facts deposed in Mr Mpinda’s affidavit also disclose a reasonable cause of action against Mr Banovich for breach of his retainer and (or) negligence against Mr Banovich in that Mr Mpinda alleges that, if a binding settlement agreement were made through Mr Banovich’s agency, Mr Banovich did not have Mr Mpinda’s authority to make that agreement. Therefore, in the alternative to a cause of action for a declaration that no binding settlement agreement was made, Mr Mpinda has reasonably arguable causes of action for damages against Mr Banovich.

76    If Mr Mpinda's application in the Commission were reactivated, the Commission would have jurisdiction to consider and determine if a settlement agreement was made if that issue were also raised in the reactivated unfair dismissal proceedings: Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126. If the Commission were to determine that a settlement agreement was made, it would be within the power of the Commission to dismiss Mr Mpinda’s application under s 587 of the FW Act. Otherwise, the Commission may proceed to determine the merits of the application under ss 397 – 399.

77    Mr Banovich requests a stay to permit the application for unfair dismissal to be resolved in the Commission as it may, in effect, resolve Mr Mpinda’s claim against Mr Banovich if the Commission were to find that no settlement agreement was made. However, assuming that the application for unfair dismissal were reactivated and the settlement agreement issue determined in the Commission against Mr Mpinda, a determination of that issue in the Commission would not bind Mr Banovich. Mr Mpinda may need to re-litigate that issue to prosecute the proceedings against Mr Banovich. Therefore, a stay of the proceedings against Mr Banovich pending determination of the application for unfair dismissal will not necessarily promote the efficient or expeditious resolution of the dispute between Mr Mpinda and Mr Banovich.

78    As matters stand, while the application for unfair dismissal has not been discontinued or dismissed, it remains inactive. The Commission has indicated that Mr Mpinda may take steps to re-activate the proceedings and, if he were to do so, then the future conduct of the matter would be the subject of consideration by the Commission. Further, the issue of whether or not a binding settlement agreement was made between Mr Mpinda and Western Areas is not an issue that has been raised in and is before the Commission for determination. Therefore, there is no multiplicity of proceedings involving that issue at this time.

Conclusion

79    I am not satisfied that the proceedings against the Commission and Western Areas should be dismissed in whole or in part. I am also not satisfied that the proceedings against Mr Banovich should be stayed.

80    The principal issue for determination is whether a binding settlement agreement was made between Mr Mpinda and Western Areas. The resolution of that issue is a preliminary step to determining what, if any, relief may be granted against each of the respondents.

81    If there were a binding agreement, Mr Mpinda would not have a reasonable cause of action against the Commission for failing to exercise its power under ss 397 – 399 of the FW Act. However, he would have reasonable causes of action against Mr Banovich and Western Areas.

82    If there were no binding agreement, Mr Mpinda would have a reasonable cause of action against the Commission and grounds for reactivation and determination of the application for unfair dismissal. However, Mr Mpinda would not have a reasonable cause of action against Mr Banovich for breach of the retainer or negligence. Otherwise, Mr Mpinda would be free to pursue his unfair dismissal claim against Western Areas in the Commission.

83    Insofar as the originating application claims relief for damages for conspiracy or breach of statutory duty, it is liable to be struck out as frivolous or vexatious. However, I would grant Mr Mpinda leave to amend his originating application to claim relief of the following nature.

(a)    A declaration to the effect that no binding agreement was made between Mr Mpinda and Western Areas to settle the application for unfair dismissal.

(b)    A declaration to the effect that the Commission failed (actually or constructively) to exercise its power under s 397 of the FW Act to conduct a conference or hold a hearing and determine the merits of the application for unfair dismissal.

(c)    Further and (or) alternatively to para (b), the issue of a writ of mandamus against the Commission to compel the members to exercise its power under s 397 of the FW Act to conduct a conference or hold a hearing and determine the merits of the application for unfair dismissal.

(d)    In the alternative to paras (a) to (c), damages against Mr Banovich for breach of his retainer and (or) negligence in making an agreement to settle his application under s 394 of the FW Act, as Mr Mpinda’s agent, without the authority or instructions of Mr Mpinda to make such an agreement.

(e)    In the alternative to paras (a) to (c), a sum in debt or damages against Western Areas for breach of the settlement agreement for failing to pay the amount due under that agreement.

84    While I would grant Mr Mpinda leave to amend his originating application to claim relief of the kind referred to in paras (b) and (c) above, there is evidence before the Court that the Commission would re-activate Mr Mpinda’s application if he applied to do so in that forum. That is, in substance, the Commission has evinced an intention to deal with the application for unfair dismissal in accordance with law at Mr Mpinda’s request. In those circumstances, and taking into account that any failure to exercise power on the part of the Commission depends on a finding that no settlement agreement was made between Mr Mpinda and Western Areas, the interests of justice favour a stay of the proceedings against the Commission pending determination of the issue of whether a settlement agreement was made. Otherwise, the Commission’s application for summary dismissal should be dismissed.

85    As for relief of the kind referred to in paras (a), (d) and (e), it arises from the material facts deposed in Mr Mpinda’s affidavit in support. These facts disclose a reasonable cause of action, and that there are real issues to be tried. I am not satisfied that there is no reasonable prospect of successfully prosecuting the proceedings against Western Areas and Mr Banovich. It is not appropriate for the Court to act on its own motion and summarily dismiss the proceedings against Western Areas. It is also not appropriate to stay the proceeding against Mr Banovich and, therefore, the application for a stay should also be dismissed.

Associate:

Dated:    19 September 2022