Federal Court of Australia

Mpinda v Fair Work Commission (No 3) [2024] FCA 1179

ORDERS

THE COURT NOTES THAT:

A.    The first respondent filed a submitting notice pursuant to r 12.01 of the Federal Court Rules 2011 (Cth) on 13 February 2023.

THE COURT ORDERS THAT:

1.    The stay of the proceeding against the first respondent in paragraph 1 of the orders of 19 September 2022 be lifted.

2.    There be a declaration to the effect that the applicant’s application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) against the second respondent and lodged with the first respondent on 23 September 2016 has not been discontinued or dismissed and the first respondent has not otherwise exercised power pursuant to s 397 of the Fair Work Act to conduct a conference or hearing to determine the merits of that application.

3.    Pursuant to r 30.02 of the Rules, the proceeding against the third respondent be dismissed.

4.    There be no order as to the costs of the proceeding up to the judgment on the separate questions determined on 28 June 2024.

5.    Paragraphs 1, 2, 6 and 7 of the amended originating application be stood over for further directions or orders at a case management hearing.

6.    The case management hearing be adjourned to 9.15am (AWST) on 5 February 2025.

7.    The parties have liberty to apply to re-list the amended originating application or the case management hearing on short notice.

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

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

FEUTRILL J:

1    The first four orders are orders that are made on the Court’s own initiative under r 30.02 of the Federal Court Rules 2011 (Cth) following the determination of the separate questions and having heard the parties’ submissions on them this morning, whereby the first and second respondents made written and oral submissions with respect to orders the Court contemplated making, of which notice was given to the parties by a letter dated 31 July 2024.

2    Pursuant to r 1.40 of the Rules, the Court may, at any stage of a proceeding, exercise a power mentioned in the Rules in the proceeding on its own initiative. Pursuant to r 30.02 of the Rules, if a decision on a separate question substantially disposes of the proceedings or renders any further trial of the proceeding unnecessary, a party may apply to the Court for judgment or an order dismissing the whole or any part of the proceeding.

3    On 29 June of this year, I delivered judgment on three separate questions. For the reasons given at that time, I determined the separate questions as follows.

(1)    Upon the issue of whether the applicant and the second respondent made a binding and enforceable agreement to settle the applicant's application for an unfair dismissal remedy made under s 394 of the Fair Work Act 2009 (Cth) and lodged with the first respondent on 23 September 2016 (settlement agreement), there was no such settlement agreement.

(2)    Upon the issue of whether the third respondent is liable to the applicant for negligence in making a settlement agreement, as the applicant's agent, without the applicant's authority or instruction, the third respondent is not so liable.

(3)    Having found that there was no settlement agreement, it was unnecessary to determine the third issue.

4    The consequence of deciding that there was not a settlement agreement is that the Fair Work Commission proceedings have not been finally resolved. In those circumstances, it is appropriate that the Court should make a declaration to the effect that there was no such settlement agreement in these proceedings as it will bind the Fair Work Commission and the second respondent, Western Areas, who is the applicant's former employer.

5    At an earlier point in the proceedings, when dealing with earlier applications to dismiss the proceeding against, amongst others, the first respondent, an order was made to the effect that the proceeding as against the first respondent be stayed. That order was made because the extent to which any relief against the first respondent may have been necessary depended upon resolving the question of whether there had been a settlement agreement. That question has now been resolved in the applicant's favour and it is appropriate that the stay of proceedings against the first respondent be lifted.

6    The applicant's proceeding is founded upon an amended originating application filed 8 December 2022. Under the heading Details of Claim, the applicant sets out seven items of relief sought in the proceeding. In paragraph 1, the applicant seeks a declaration against the first respondent for an alleged failure to exercise power under the Fair Work Act. In paragraph 2, he requests the Court issue a writ of mandamus against the first respondent to compel it to exercise power under the Fair Work Act to conduct a conference or hold a hearing, and determine the merits of his application for an unfair dismissal remedy.

7    The first respondent has filed written submissions, and made oral submissions today, to the effect that if a declaration were made of the kind the Court contemplates making, the Fair Work Commission would assign the applicant's unfair dismissal application to a Fair Work Commission member, who would then be required by s 397 of the Fair Work Act to list the matter for a conference or hearing to the extent that the matter involves facts the existence of which are in dispute.  Put another way, the Fair Work Commission submits that it will give effect to the Court's declaration and perform its statutory function under the Fair Work Act as required.

8    I have every confidence the Fair Work Commission will do as it says it will do, and that would thereby render paragraphs 1 and 2 of the originating application inutile.  However, as those steps have not yet been taken, the Court is not in a position to deal with paragraphs 1 and 2 of the originating process finally at this time.  Therefore, I am not satisfied that the Court can make any order in respect of paragraphs 1 and 2 of the originating application under r 30.02 of the Rules. 

9    In the alternative to the relief sought in paragraphs 1 and 2 of the originating application, the applicant claimed damages against the third respondent, his former lawyer, for negligence in making an agreement to settle his Fair Work Commission application. As I determined on the trial of separate questions that the third respondent was not so liable, it is appropriate that the Court make an order dismissing paragraph 3 of the originating application. 

10    In paragraph 4 of the originating application, the applicant sought relief, further and in the alternative to paragraphs 1 and 2, of a sum in debt or damages against the second respondent, his former employer, for breach of the settlement agreement for failing to pay him an amount due under that agreement.  As I determined on the separate questions, there was no such settlement agreement, paragraph 4 of the originating application falls away.

11    In paragraph 5 of the originating application, the applicant claimed damages to be calculated in a particular way, and again, as I determined that the third respondent was not liable in negligence, and there was not a settlement agreement that could have been breached, paragraph 5 also falls away.

12    In paragraph 6 of the originating application, the applicant sought an order that the respondents pay his costs of and incidental to the proceedings.  On the trial of the separate questions, there was a degree of mixed success as between the second respondent, third respondent and the applicant.  In short, the applicant was successful as against the second respondent and unsuccessful as against the third respondent, and in the exercise of my discretion to order costs, I consider it appropriate in those circumstances that there be no order as to the costs of the proceedings determined on the separate questions.

Associate:

Dated:    9 October 2024