Federal Court of Australia

Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The respondent file and serve on or before Wednesday 17 May 2023 a submission of not more than 2 pages in respect of its application for costs made this day.

3.    The applicants file and serve a submission in response to the cost application of not more than 2 pages on or before Friday 19 May 2023.

4.    The question of costs be determined on the papers after the filing of the written submissions.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Until their termination from the employment of the respondent, the Corporation of the Synod of the Diocese of Brisbane, hereafter “the Diocese”, each of the applicants was an employee of the Diocese. The applicants worked in various capacities for the Diocese at various locations. It is not presently necessary to offer further detail in respect of those capacities or localities.

2    On 13 July 2022, the applicants filed an application in Form 81 in the Court alleging discrimination together with a related statement of claim. These court proceedings are a sequel to the dismissals on 15 December 2021 and two applications which had been severally made to the federal conciliation and arbitration commission, presently known as the Fair Work Commission (Industrial Commission).

3    As filed on 7 January 2022, those Industrial Commission applications were slightly outside the 21 day period for which the Fair Work Act 2009 (Cth) (FWA) provides. The delay in their lodgement with the Industrial Commission was conceded by their solicitor, Mr R. Grealy, who then, as now, represents the applicants, to have been the result of representative error. The Diocese did not oppose an extension of time by the Industrial Commission in respect of the lodgement of the applications.

4    On 26 May 2022, the Industrial Commission (Deputy President Young) granted the applicants the requisite extension of time. The following day, Mr Grealy, as he deposes in an affidavit made by him on 24 April 2023, provided advice to the applicants in relation to taking further action against the Diocese. At that stage, there had been in the Industrial Commission a conciliation conference conducted by videolink with each of the applicants. That conciliation conference did not result in any compromise of the claims which each of the applicants made in respect of an alleged unlawful dismissal.

5    In evidence is Mr Grealy’s advice of 27 May 2022 to the applicants. In summary, his advice was:

(a)    it was not necessary for the application to the Federal Court to be filed as a Form 79 originating application for general protections involving dismissal; and, therefore,

(b)    it was not necessary for any application to be filed within 14 days of the certificate; and

(c)    the applicants could file a Form 81 – originating application alleging discrimination which was not required to filed within 14 days.

That advice was given in writing. The reference in the advice to a certificate was a reference to a certificate of the kind for which s 368(3) of the FWA provides.

6    On 3 June 2022, Mr Grealy received an email communication from one of the applicants, apparently the lead applicant, Ms Krystal Kelly, which stated that each of the applicants wished to proceed with the filing of an originating application alleging discrimination. Mr Grealy’s understanding of this communication was that it engaged with and took up his advice that an originating application alleging discrimination in Form 81 need not be filed within 14 days.

7    On 6 June 2022, the Industrial Commission issued a certificate in respect of each of the individual applications to the Commission lodged by each of the applicants. That certificate recorded in terms of s 368(3) of the FWA that the Industrial Commission was satisfied that all reasonable steps to resolve the dispute, other than by arbitration, had been, or were likely to be, unsuccessful. A noteworthy feature of those certificates was an annotation in these terms:

IMPORTANT NOTE:

The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for a civil remedy order, unless the court extends the time for making such an application.

For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both of the parties.

This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application.

8    It is common ground that no application alleging dismissal of any of the applicants in contravention of a general protection for which the FWA provides was filed by or on behalf of any of the applicants within 14 days after the issuing of the certificate by the Industrial Commission. Instead, what occurred was that, on 13 July 2022, an application in which each of the applicants joined was filed in the Court alleging discrimination contrary to s 351 of the FWA.

9    A first case management hearing in respect of the proceedings was listed for 2 August 2022. Prior to that case management hearing, there was an exchange by email between the solicitors for the Diocese and Mr Grealy for the applicants. One feature of that exchange was an assertion by Mr Grealy in response to the foreshadowing of a dismissal application on behalf of the Diocese that:

To the extent that your clients propose strikeout will be premised on a jurisdictional argument, I confirm that the applicants’ claims are premised on the illegality of the vaccination policy, not upon any dismissal.

10    Following the case management hearing and with reference to the then form of the statement of claim, the solicitors for the Diocese wrote to Mr Grealy on the subject of whether dismissal formed part of the Court application.

11    In a letter of 8 August 2022, the solicitors for the Diocese stated as follows:

[17]    Further, paragraph 36 of the SOC (sub-paragraph (g)) appears to pursue a claim that the applicants were dismissed (being the adverse action) in breach of s.351 of the FW Act.

[18]    As you would be aware, r.34.05 of the Rules requires that an application relation to an alleged discrimination involving dismissal must be accompanied by a certificate issued by the Fair Work Commission. That certificate has not been attached. We further say that this deficiency cannot be remedied at this juncture, given that such a claim is out of time. As such, paragraph 36(g) ought to be struck out.

….

[39]    Despite not being filed as a general protections application involving dismissal, the relief sought includes compensation for los wages and superannuation from the of termination of employment (pursuant to the FW Act). In our view, such relief is inextricably linked to a dismissal claim. Pressing for such relief in these circumstances is, in our view, an abuse of process.

[sic]

12    In response for the applicants, Mr Grealy on 12 August 2022 set out a proposed amended originating application and a proposed amended statement of claim. That amended statement of claim was filed on 18 August 2022.

13    On 16 September 2022, a strikeout application was filed on behalf of the Diocese, along with supporting affidavits and a related outline of submissions. Initially, as revealed by an order made on 9 November 2022, that application for strikeout was met by allowing the applicants to furnish the Diocese with a proposed further amended statement of claim and for the proceedings to be referred to mediation in the hope that, without a need to adjudicate the merits of any of the strikeout application, a consensual resolution might be reached.

14    As it transpired, no such consensual resolution was reached. That being so, the strikeout application was then set down for substantive hearing. In so doing, and in the course of a case management hearing that followed the mediation, I raised with the parties whether or not there should be considered at that time the question of the granting of an extension of time pursuant to s 370 of the FWA, if the same were needed. Mr Grealy applied orally for such an extension in the event that such was needed, although maintaining as a primary position that no such extension was needed.

15    Thus, the questions for determination are whether an extension is needed and, if so, whether it should be granted?

16    The strikeout application came to be grounded in an allegation that the applicants’ proceedings were incompetent, incompetent in the sense that they had not invoked the Court’s jurisdiction, because the applications required the granting of an extension of time and none had been given.

17    The Diocese also alleged that, insofar as any such deficiency might be ameliorated by an order granting an extension to take effect nunc pro tunc on and from 13 July 2022, no such extension should be granted. The Diocese also made complaint as to the adequacy of the proposed further amended statement of claim.

18    As it transpired, it was not possible to hear these interlocutory applications solely on the day appointed. Instead, they were adjourned part-heard until today. In the interval, and with the benefit of hearing the submissions thus far made on behalf of the Diocese, Mr Grealy foreshadowed to the Diocese overnight the seeking of leave to file an amended originating application and a further amended statement of claim in a different form to that which had earlier been foreshadowed. These proposed amended documents collectively comprise Exhibit A.

19    A feature of the proposed amended originating application in Exhibit A is that the applicants seek the following relief:

 (1)    general damages for the respondent’s breach of section 351 of the FWA; and

(2)    damages for breach of each applicant’s employment contract. In the course of submissions today for the applicants, Mr Grealy confirmed that these were the two causes of action which the applicants sought to advance in this court.

20    The proposed further amended statement of claim forming part of Exhibit A is not, with respect, altogether easy to read. That is the product of the many and different amendments which it contains relative to earlier filed versions of the statement of claim. The loss and damage which is sought by the applicants is set out at [43] through to and including [45]:

43.     The Applicants seek General Damages for their pain and suffering and will provide further particulars on receipt of expert reports.

44.    The Applicants also seek aggravated and/or exemplary damages from the Respondent where:

a.    For the reasons pleaded herein, the Respondent knew, or reasonably ought to have known, that the Provisionally Approved COVID-19 Vaccines were not safe or effective, but it continued to:

   i.    Make the Safety and Efficacy Representation;

   ii.    Bully and harass the Applicants for not being vaccinated;

   iii.    Threaten the Applicants’ jobs and careers;

   iv.    Ignore or ridicule the Employee Vaccination Concerns; and

v.    Conduct stressful disciplinary proceedings against the Applicants.

b.    The Respondent treated the Applicants with a lack of humanity during the disciplinary process;

c.    The Respondent acted with contumelious disregard for the Applicants’ mental and physical health;

d.    The Respondent had other simple options at its disposal to respond to the Applicants’ choice not to be vaccinated and refused to implement same; and

e.    The Respondent has segregated the Applicants from their work colleagues and work life without reasonable cause.

45.    The Applicant relies on sections 342 and 351 of the Fair Work Act 2009.

21    Although it was put that the applicants did not rely upon their dismissal as opposed to alleged anterior conduct of the Diocese in relation to the implementation and enforcement of an allegedly unlawful and unreasonable vaccination policy, it is a noteworthy feature of the claim for relief as just set out that the applicants claim lost wages and superannuation from the alleged termination date, 15 December 2021, and future lost wages and superannuation.

22    In relation to the alleged breach of s 351 of the FWA, the applicants seek general damages as well as, as [45] reveals, aggravated and/or exemplary damages apparently in respect of each of the causes of action pleaded.

23    To understand the basis upon which the Diocese submits that there is no jurisdiction if no extension of time be granted, even given the way in which the applicants wish to amend the originating application and statement of claim (each of which is opposed by the Diocese), it is necessary to set out a number of provisions in the FWA. Section 351 of the FWA provides:

351    Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; or

(c)    if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

   (i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)    Each of the following is an anti-discrimination law:

(aa)    the Age Discrimination Act 2004 ;

(ab)    the Disability Discrimination Act 1992 ;

(ac)    the Racial Discrimination Act 1975 ;

(ad)     the Sex Discrimination Act 1984 ;

(a)     the Anti-Discrimination Act 1977 of New South Wales;

(b)     the Equal Opportunity Act 2010 of Victoria;

(c)     the Anti-Discrimination Act 1991 of Queensland;

(d)     the Equal Opportunity Act 1984 of Western Australia;

(e)     the Equal Opportunity Act 1984 of South Australia;

(f)     the Anti-Discrimination Act 1998 of Tasmania;

(g)     the Discrimination Act 1991 of the Australian Capital Territory;

(h)     the Anti-Discrimination Act of the Northern Territory.

24    Within s 351(1) is to be found the expression “adverse action”. The meaning of “adverse action” is supplied by s 342 of the FWA. That provides by s 342(1) when a person takes adverse action:

25    It will be seen at once – and this was an integral part of the Diocese’s submissions – that with respect to adverse action taken by an employer against an employee, more than just dismissal is embraced by the s 342 definition of “adverse action”. Items 1(b)(c) and (d) are eloquent in this regard. In particular, “adverse action” includes discrimination between the employee and other employees of the employer. The meaning of “adverse action” is extended by s 342 so as to include materially for present purposes “threatening to take action covered by the table in subsection (1)”.

26    The Diocese submits that each of the applicants is, in terms of s 370, “a person entitled to apply under s 365 for the FWC to deal with a dispute”. Section 370 provides:

370    Taking a dismissal dispute to court

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    both of the following apply:

(i)    the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)    the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the general protections court application includes an application for an interim injunction.

Note 1:    Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2:    For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .

27    Section 365 of the FWA provides:

365    Application for the FWC to deal with a dismissal dispute

If:

(a)    a person has been dismissed; and

(b)    the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

28    Each of the applicants, in my view, is a person who, in terms of s 365 of the FWA, is a person who “may apply to the FWC for the FWC to deal with the dispute”. Indeed, in the present case, each of the applicants made just such an application and was granted the requisite extension of time so to do.

29    The further point for the Diocese is that the proceeding as instituted and as sought to be amended in terms of, presently Exhibit A, is a “general protections court application” for the purposes of s 370. What amounts to that s 12 of the FWA (the “dictionary”) informs one that a “general protections court application” is defined by s 368(4).

30    The submission for the Diocese is that either as originally instituted or for that matter as proposed to be amended, the application insofar as it relies upon the FWA to claim relief is in terms of s 368(4) an application to a court under Div 2 of Pt 4-1 for orders in relation to a contravention of this Part and thus, definitionally, a general protection court application.

31    The Diocese submits that an allegation of a contravention of s 351, even if the statement of claim is to be read as alleging a contravention short of dismissal, is nonetheless an application for orders in respect of a contravention of Pt 4-1.

32    Section 351 falls within Pt 4-1. That being so, it seems to me that the submission of the Diocese is correct. The application filed either in its original form or as presently foreshadowed by amendment in Exhibit A remains an application for orders in relation to a contravention of a provision, namely, s 351, within Pt 3-1 of the FWA.

33    It necessarily follows, in my view, that s 370 is applicable. Nothing in r 34.05 of the Federal Court Rules 2011 (Cth), to which reference was made on behalf of the applicants, can alter that position.

34    That being so, there are two material preconditions in respect of the making of a general protections court application, flowing from s 370(a). The submission for the Diocese is that unless those conditions are met, there is no invocation of federal jurisdiction. That being so, the further submission is that there is no jurisdiction to entertain the common law breach of contract claim in what can, however infelicitously be described as the Court’s accrued jurisdiction.

35    It is in light of this submission necessary to refer to authority in relation to the Court’s jurisdiction. Although s 362 of the FWA confers on the Court jurisdiction in relation to any matter whether civil or criminal arising under that Act, that section must be read in conjunction with others within the FWA. Relevantly, in my view, the other section is s 370.

36    Ever since 1997, it has also been necessary to look to s 39B(1C) of the Judiciary Act 1903 (Cth) (Judiciary Act) when considering jurisdiction. That confers original jurisdiction on the Court in respect of any matter:

… arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

37    This provision in the Judiciary Act, again, has to be read in conjunction with any limitation in a particular Act with respect to the invocation of the Court’s original jurisdiction. Thus, I do not see either s 562 or s 39B(1C) of the Judiciary Act as offering any panacea for the applicants in the face of s 370.

38    I am bound to follow views expressed by reference to ultimate appellate authority by the Full Court in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507 with respect to the ability of the court to exercise jurisdiction over the whole of a justiciable controversy or “matter” once its jurisdiction has been invoked. Although lengthy, the discussion on the subject of jurisdiction offered by Black CJ and Hill J in that case is so comprehensive and pertinent that it must be set out in full. Their Honours state at [5] through to and including [20] as follows:

5    It is equally clear, however, that this Court may not proceed to deal with what may for present purposes be called the non federal aspect of the dispute unless the jurisdiction of the Court to deal with a federal matter has been invoked: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 ALR 543 at 553 and see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261.

6    As counsel for the 3rd to 5th Respondents point out in their written submissions, and by reference to what was said by Gleeson CJ, Gaudron and Gummow JJ in Edensor at 585-6, generally the cases which have considered the question of accrued jurisdiction have been cases which arose under a law made by the Parliament where the Court was seised of jurisdiction in a “matter” within the meaning of s 76(ii) of the Constitution. That law has usually been the Trade Practices Act 1974 (Cth). However, as already noted, it is important that the Court be seised of the federal matter before the question can arise whether the Court has accrued jurisdiction to determine the non federal issue which is part of the single controversy which constitutes the “matter”.

7    It is now well established that the mere fact that a federal claim which is brought within the jurisdiction of the Court is not tenable will not prevent the Court from proceeding with a non federal element which is within the accrued jurisdiction of the Court: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 (“Burgundy Royale”); Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563.

8    Burgundy Royale involved a claim brought under the Trade Practices Act 1974 (Cth) against the Northern Territory and a corporation which was the Crown in the right of the Territory. It also involved non federal claims. The ratio of the decision is that it followed from Fencott v Muller that a “matter” in the context of s 76(ii) of the Constitution was a justiciable controversy which was either constituted by or included a claim arising under a federal law but might also include another cause of action arising under a non federal law. Since the Court had jurisdiction to determine each of the claims which together constituted a federal matter the mere fact that the federal claim was unsuccessful did not mean that the Court could not determine the non federal claim. Since the Court did have jurisdiction to determine the federal matter arising before it that jurisdiction did not cease once the federal claim was determined adversely to the applicants.

9    It is necessary now to consider the claims brought by the applicants which might be said to be federal claims to see whether the present case differs from that in Burgundy Royale. The judgment of Beaumont J in relation to the separate question referred to the Full Court, contains a full description of the claims. In brief it may be said that subject to the issue whether or not the claims were justiciable, they were federal claims within the jurisdiction conferred upon the Court by s 39B(1A)(b) of the Judiciary Act 1903 (Cth). That is to say that on the pleadings at least there were claims arising under the Constitution, or involving its interpretation. Alternatively the Court’s jurisdiction was attracted by s 39B(1A)(c) because the claims could be said to arise under a law made by the Commonwealth Parliament.

10    However, s 39B(1A) confers jurisdiction upon the Court only in any “matter” arising under either the Constitution or a law of the Commonwealth as the case may be. The joint judgment holds that the issue in question was not justiciable. Can it thus be said that there has ever been a matter arising under either the Constitution or a law of the Commonwealth? If the answer is “No” then there never was jurisdiction conferred upon the Court by s 39B(1A) of the Judiciary Act 1903 (Cth).

11    This provides the point of distinction from Burgundy Royale.

12    In that case there was no doubt that there was jurisdiction conferred upon the Court to hear and determine the action brought under the Trade Practices Act 1976 (Cth). It may be said for this purpose that the word “jurisdiction” can be defined as “authority to adjudicate” (Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 and a valuable paper written extrajudicially by Allsop J, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002”, Australian Bar Review, vol 23, no 1, 2002, pp 29 – 60 at 30). We would prefer to say that “jurisdiction” is the authority to hear and determine a controversy. The difference in formulation is not of great importance but the alternative formulation allows a distinction to be drawn between the jurisdiction of the court to proceed to the ultimate determination of the controversy and the preliminary authority or jurisdiction of the Court first to determine whether it indeed has jurisdiction to proceed to hear and determine the controversy: Re Macks; Ex parte Saint (2000) 204 CLR 158; Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (1999) 94 FCR 384; Khatri v Price (1999) 95 FCR 287. While the preliminary jurisdiction involves authority in the Court to do something, ie determine whether it has jurisdiction, that authority does not extend, unless jurisdiction is established, to determining the outcome of the controversy between the parties. Put another way, what is involved is a preliminary or qualified jurisdiction that is not jurisdiction in the ordinary sense to hear and determine a controversy.

13    In Burgundy Royale the claim which the Court was authorised to hear and determine was unsuccessful because the Territory was not bound by the Trade Practices Act 1974 (Cth). The Court did hear and determine the claim, but determined it adversely to the applicants in the proceedings. It did not engage in what we have called the preliminary jurisdiction.

14    It is obvious that in Burgundy Royale there was no need to consider whether, when there was an assertion of a federal matter, which viewed as a single controversy nevertheless involved what may be referred to as a non federal matter, the Court had jurisdiction, because of the assertion of the federal matter, to hear and determine non federal claims. That is the problem which faces us here.

15    The next case to which reference should be made is Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563. The case concerned a claim purporting to be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The applicant claimed, as well, the determination of a claim in contract. Davies J held that the decision which the applicant sought to challenge was not one made under an enactment so that the federal claim was dismissed. (His Honour also held that if he were wrong the applicant was not entitled to relief anyway). However, his Honour refused to strike out the contractual claim saying (at 565):

“The jurisdiction of the court under the ADJR Act has been invoked. The application is brought thereunder as a matter of substance, not as a matter of artificiality or subterfuge. The court has jurisdiction to deal with the claim and jurisdiction to deal with all other claims not otherwise within its jurisdiction arising out of the subject matter of the dispute: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd and Fencott v Muller…” (case citations omitted).

16    There have been subsequent decisions of single judges of the Court which have followed the decision of Davies J as a matter of comity: New South Wales Aboriginal Land Council v Aboriginal & Torres Strait Islander Commission (1995) 131 ALR 559 (per Hill J) and Buck v Comcare (1996) 137 ALR 335. However, in the former case Hill J suggested that although the question was clearly arguable his own preferred view was that jurisdiction was only conferred upon the Court where there was conduct or a decision under an enactment that was capable of review. If there was no such conduct or decision then there would be no accrued jurisdiction arising.

17    Later in Vietnam Veterans’ Affairs Association of Australia New South Wales Branch v Cohen (1996) 70 FCR 419 Tamberlin J concluded that what Hill J had suggested was clearly arguable was in fact the correct view (at 434). The controversy is discussed by Professor Zines in a chapter in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System, Melbourne University Press, 2000, p 295.

18    It is not necessary in the present case to resolve this controversy – indeed, the problem exposed in these cases may be distinguished from the problem here. If the view of Davies J is correct it turns upon the fact that the rejection of the ADJR Act claim as not involving a decision under an enactment formed part of the determination of the controversy, and not merely the determination of whether the Court had jurisdiction to proceed to hear and determine it. If the view of Tamberlin J is correct it proceeds upon the view that the enquiry dealing with the ADJR Act claim was merely the exercise of the preliminary jurisdiction to which we have referred.

19    What is, we think clear, however, is that where the federal part of the controversy is such that the Court lacks jurisdiction to hear it, then there can be no accrued jurisdiction. Accrued jurisdiction can only arise where the single controversy which is the “matter” is one which is within the jurisdiction conferred upon the Court. If no federal jurisdiction is properly invoked then there can be no accrued jurisdiction: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 per French J (at 598).

20    Allsop J in his paper appears to us to propound the view that all that is required to invoke federal jurisdiction for this purpose is that federal jurisdiction be asserted (but subject perhaps to the qualification that the assertion is bona fide and is not frivolous or colourable). His Honour cites the decision of a Full Court of this Court in Westpac Banking Corp v Paterson (1999) 167 ALR 377 at 381 in support of this view. That was a case where a cross claim, not being colourable, attracted federal jurisdiction where it asserted a claim founded on Commonwealth legislation. But Westpac Banking Corp v Paterson seems rather to be a case where the cross claim was such that the Court had authority to proceed to hear and determine the issue involved, and thus the non federal part of the controversy, and not a case where the Court was first required to decide whether it had jurisdiction to hear and determine any federal claim at all.

[sic]

39    Later, in Rizeq v Western Australia (2017) 262 CLR 1, at [55] and [56], Bell, Gageler, Keane, Nettle and Gordon JJ in their joint judgment sounded a cautionary note in relation to the use of the term “accrued jurisdiction”:

55.    Thus, it is commonplace that resolution of a matter within federal jurisdiction may involve application both of Commonwealth law and of State law. Indeed it can happen that a matter in federal jurisdiction is resolved entirely through the application of State law. Application of State law in federal jurisdiction came for a period to be described, “[f]or want of a better term”, as “accrued jurisdiction”. There is “no harm in the continued use of the term ‘accrued jurisdiction’ provided it be borne in mind ... there [is] but one ‘matter’”. However, the imprecision the term introduces into the word “jurisdiction” means that the term is best avoided. There is but one matter and that matter is entirely within federal jurisdiction, as distinct from State jurisdiction.

56.    The simple constitutional truth is that State laws form part of the single composite body of federal and non-federal law that is applicable to cases determined in the exercise of federal jurisdiction in the same way, and for the same reason, as they form part of the same single composite body of law that is applicable to cases determined in the exercise of State jurisdiction – because they are laws.

40    Yet more recently again, in Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476, it was stated in the joint judgment at [37]:

37    Thus, the State jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution is not denied, just as the federal jurisdiction of this Court under s 76(i) or s 76 (ii) or of another court under s 77(i) or s 77(iii) of the Constitution is not engaged, by the assertion of a claim or defence that amounts to “constitutional nonsense” or any other form of legal nonsense. But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.

41    So it is that, at the very least, this Court in this proceeding has jurisdiction to determine whether or not it has federal jurisdiction at all. The point for the Diocese is that the conditions found in s 370(a) of the FWA are not just limitations. If they were but limitations, it may be that because this Court is a superior court, those limitations would bar a particular remedy but not go to jurisdiction. In Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 (Parisienne Basket Shoes), at 391, Dixon J added a qualification in these terms:

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid.

42    The Diocese’s submission is that the Parliament has in s 370, as Dixon J in Parisienne Basket Shoes, contemplated might occur, made conditions upon the occurrence or existence of which the jurisdiction of this court shall depend in relation to a proceeding which constitutes a general protections court application. Also relevant in this regard is this statement in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, at 426:

Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends. And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.

43    Here, it is established, indeed, it is common ground, that a certificate under s 368(3)(a) was issued by the Industrial Commission in relation to a dispute in respect of which the applicants were entitled under s 365 of the FWA to apply to the Industrial Commission. It is also established, indeed, it is again common ground, that no application was made within 14 days after the day on which the certificate was issued. I have concluded that as formulated either as filed or as foreshadowed in Exhibit A, the application is a general protections court application. There is presently no extension of time.

44    It seems to me that these statutory conditions are not mere limitations, but rather conditions of the kind to which Dixon J referred in the passage quoted from Parisienne Basket Shoes. They are conditions in respect of the Court’s jurisdiction. They are conditions which govern whether a person is entitled to invoke the Court’s jurisdiction.

45    As I have earlier indicated, I do not doubt that it would be possible to grant an extension of time nunc pro tunc, but unless and until that is done, the conditions governing the invocation of the Court’s jurisdiction by the applicants in this case as provided for by s 370(a) of the Act are not met. That being so, it seems to me it necessarily follows that, absent an invocation of the Court’s jurisdiction, there is no jurisdiction to entertain the common law breach of contract claim.

46    The question then becomes whether or not an extension of time should be granted? As is highlighted in Note 2 to s 370, the root authority in relation to the granting of an extension of time is a judgment of Marshall J, given in the Industrial Relations Court of Australia in relation to an analogous predecessor provision in the Industrial Relations Act 1988 (Cth), namely, Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns). In that case, his Honour identified by reference to earlier authority the following principles:

Principles for extension of time

The relevant principles which should govern the Court's discretion to extend the time within which an application under s 170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd (No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.

I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter.

Briefly stated the principles are:

“1.    Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2.    Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3.    Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4.    The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5.    The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6.    Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”

47    It is important to remember when considering whether or not to grant an extension of time under s 370(a)(ii) that an applicant need not show special circumstances. All that an applicant need do is provide an adequate explanation as to why an extension should be granted. Parliament has, in s 370, deliberately chosen two jurisdictional preconditions: one, that found in paragraph (a)(i), reflects a deliberate value judgment by parliament that there should at least be an endeavour before this Court’s jurisdiction is invoked to reach a consensual outcome by conciliation within the Industrial Commission; the other reflecting the nature of employer/employee relations is to specify within paragraph (a)(ii) a very short period, indeed, a fortnight, within which, if conciliation has or is unlikely to be successful, to institute a proceeding in the court or alternatively the Federal Circuit and Family Court. That 14 day period may be seen to reflect a need for certainty within the workplace as to the finalisation of any controversy as between employer and employee with respect to a particular dispute in relation to which a person is entitled to apply under s 365 of the FWA to the Industrial Commission.

48    In this case, that question of finalisation of the controversy is an important one given, that the dismissals occurred on 15 December 2021. The applicants are not, of course, responsible for the length of time it took for proceedings within the Industrial Commission to reach the point where the Commission came to be of the settled view that a certificate under s 368(3)(a) should be issued. Nonetheless, by the time that certificate did issue, almost six months had elapsed since the dismissals. That being so, one might expect that, in the ordinary course of events, the applicants would move with dispatch to file proceedings in the Court.

49    Recollections of events are necessarily influenced even with the best of witnesses by the passage of time. Relations within a workplace are not static. An employer who has dismissed particular employees in circumstances other than redundancies will in all probability move to try to fill positions made vacant by dismissals.

50    Here, the applicants were not without the benefit of legal advice. Further, they apparently did wish to pursue proceedings in the Court, notwithstanding unsuccessful conciliation. As it happens, the view which was conveyed to them as to the inapplicability of a time limitation was not, for reasons which I have given, correct. However that may be, for slightly in excess of the period after which the ordained time condition had expired, the Diocese was left in the position of a case where there had been no consequential court proceeding. The applicants have not by evidence pointed to any particular personal circumstance which intruded in respect of their ability to make an informed decision within the particular time condition period about instituting a proceeding. Indeed, there is no evidence directly from any of them. All that I have is the evidence from their solicitor with respect to advice and their instructions.

51    Unlike in Brodie-Hanns, this is not a case where the position as to the evidence which would be led in relation to the proposed claim is entirely neutral. There is evidence offered for the Diocese by way of an affidavit of Ms Tammy Lloyd, Group Manager, Children & Families, which, if accepted, goes to the occasion for the formulation of the Diocese’s vaccination policy. The occasion for that is said by her to have been found in her understanding, and that within the Diocese of the meaning and effect of a public health direction issued under s 362B (since expired) of the Public Health Act 2005 (Qld), namely, the Workers in a healthcare setting (COVID-19 – Vaccination Requirements) Directive (No).

52    It is not the case that the applicants need to demonstrate that in relation to an extension of time that they must succeed. It is only relevant to take into account is there, prospectively, a reasonable cause or causes of action. I assume in the applicants’ favour that discrimination in terms of s 351 of the FWA may embrace indirect discrimination. That may well be a large assumption, having regard to the terminology found within s 342(1)(d), discrimination between the employee and other employees of the employer, and the reference to discrimination in s 351(1): see as to that Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd [2014] FCA 239, at [17] and [18]. Even so, there has to be a causal connection between adverse action and discrimination.

53    It is by no means easy to discern even from the proposed further amended statement of claim in Exhibit A an alleged causal connection. Even assuming that that be so, one only gets to a requirement to have the benefit of a deemed position for which s 361 of the FWA provides if foundational elements are alleged. But even if one can view the proposed further amended statement of claim as doing this, the Diocese has already laid out in evidence what its evidence would be with respect to satisfying s 361 as to the reason for any conduct, including any conduct constituted by the dismissals.

54    So I do not regard the subject of prospects as completely neutral. It is possible to discern an evidentiary foundation for a defence if that evidence were accepted. Quite what might contradict that is unknown, because none of the applicants have given evidence on the subject.

55    Putting that to one side, it seems to me that the applicants made a considered decision not to institute within the 14 day period. Not having done that does visit prejudice on the Diocese; prejudice, in the sense of the applicants now seeking to disturb a position that the Diocese was otherwise entitled to regard as settled with respect to relations between it and the applicants.

56    I do not regard it as determinative to take into account the time that has elapsed since 13 July 2022 when the applications were filed. True it is the applicants were on notice, but the real problem is that, even before 13 July, nothing was done for over three weeks after the expiry date. And nothing was done deliberately.

57    Of course, there can be cases where a position reached on legal advice should not count against applicants. But I do not regard the present as such a case. The FWA is not easy to construe with respect to the institution of a general protections court application, but a methodical, step-by-step analysis ought to have revealed, in my view, that the note appended to the certificate issued by the Commission was not in error. That note sounds an alarm bell to those who would take a proceeding in the Court.

58    I have highlighted what seemed to me to be particular facts in the circumstances of this case pertinent to the principles enunciated by Marshall J in Brodie-Hanns. Considering them collectively, my view is that this is not a case where an extension of time should be granted. That being so, the jurisdiction of the Court has not been invoked by the applicants.

59    The Court exercises jurisdiction in respect of matters, justiciable controversies. One element of the justiciable controversy is the common law breach of contract claim, but that breach of contract claim by itself does not fall within the court’s jurisdiction even having regard to s 39B(1C) of the Judiciary Act. For the Court to exercise jurisdiction in respect of that claim, it must have a federal element. The federal element here is the general protections court application. That jurisdiction not having been invoked, there is no jurisdiction to entertain the common law breach of contract claim.

60    That breach of contract claim does contain within it, having regard to the proposed further amended statement of claim, an allegation that one reason why the directive to comply with the Diocese vaccination policy was neither lawful nor reasonable was a contravention of an enterprise agreement requirement for consultation in respect of change in the workplace. But there is no proceeding, as was confirmed by Mr Grealy for the applicants, by which separately this Court’s jurisdiction to impose a civil penalty in respect of a contravention of an enterprise agreement has been invoked. The invocation of federal jurisdiction is wholly and solely referable to a general protections court application.

61    It is unnecessary for present purposes to decide whether the common law breach of contract claim if initiated in a state court in circumstances where an element of the alleged unlawfulness of the workplace vaccination directive illegality was an alleged contravention of a federal enterprise agreement would mean that the state court was exercising federal jurisdiction. That is because the only source of federal jurisdiction invoked in the present case is the general protection court application.

62    What follows from the foregoing is that it is unnecessary further to analyse the proposed further statement of claim for the purpose of deciding whether or not to grant leave further to amend the statement of claim. It is unnecessary to decide that because there is no point to it, because, even assuming that the proceeding were amended as proposed, there is just no jurisdiction because there is no extension of time.

63    What follows then is that the proceeding must be dismissed.

Associate:    

Dated:    21 July 2023

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