Moody v Great Ocean Road Real Estate Pty Ltd [2009] FMCA 119 (11 February 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOODY v GREAT OCEAN ROAD REAL ESTATE PTY LTD

[2009] FMCA 119

INDUSTRIAL LAW – Application to reinstate application dismissed for non-attendance – whether reasonable excuse for non-attendance – whether prima facie case – whether applicant lodged election to proceed in a Court.

Workplace Relations Act 2006, ss.651, 663

Applicant:

MEGAN MOODY

Respondent:

GREAT OCEAN ROAD REAL ESTATE PTY LTD

File Number:

MLG 1092 of 2008

Judgment of:

Turner FM

Hearing date:

11 February 2009

Date of Last Submission:

11 February 2009

Delivered at:

Melbourne

Delivered on:

11 February 2009

REPRESENTATION

The Applicant:

Appearing on her own behalf

Counsel for the Respondent:

Mr.Rutherford

Solicitors for the Respondent:

Harwood Andrew Lawyers

ORDERS

(1) The application filed 8 September 2008 be reinstated.
(2) The applicant file and serve an affidavit in support of her claim within 14 days of today stating the facts relied on and the facts relating to when the applicant made and lodged her election under section 651 of the Workplace Relations Act 1996.
(3) The respondent file and serve a response within 28 days of today.
(4) The matter is referred to a Registrar for mediation pursuant to Part 27 of the Federal Magistrates Court Rules 2001 (Cth), to occur before 15 May 2009.
(5) The matter is fixed for hearing on 28 May 2008 at 10.15 am with an estimated hearing time of 1 day.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1092 of 2008

MEGAN MOODY

Applicant

And

GREAT OCEAN ROAD REAL ESTATE PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex tempore and revised from transcript)

1. The applicant made application to the Court for orders relating to her alleged unlawful termination. That application was dismissed by the Court on 3 November 2008 when the applicant failed to appear at the hearing. The applicant now seeks to have that matter reinstated.
2. Section 663(5) of the Workplace Relations Act 2006 (the “Act”) provides relevantly that:
   • “An application under sections 659, 660 and 661 may not be made to a court unless the applicant (a) has received a certificate under section 652 regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and (b) has elected under section 651 to bring the proceedings in that court for an order under section 665 in respect to the alleged contravention.”
3. Section 651(6)(a) provides that the election must be in writing.
4. Section 651(6)(b) provides that the election must be lodged with the Commission no later than 28 days after the day of issue of the Certificate.
5. Section 651(7) provides:
   • “If an applicant fails to lodge with the Commission an election under subsection (1), (2), (3), (4) or (5) within the period required under subsection (6), the application concerned is taken to have been discontinued by the applicant at the end of that period.”
6. The applicant appears to have received a Certificate from the Commission on or before 8 September 2008. The applicant is unable to state whether she has elected under s.651 to begin proceedings in this Court. If she did make that election, she is unable to state the date on which the election was made. She is unable to say whether she lodged her election with the Commission.
7. To reinstate an application that has been dismissed due to the non–appearance of the applicant, the applicant must file an application in a case. That has not been done. The application filed does not make application to reinstate.
8. The applicant must provide a reasonable explanation for the non–attendance. The explanation is that the applicant went to the wrong Court, even though the stamp on the document filed and taken away by her from the Registry states the Court’s address to be the “Federal Magistrates Court, 350 William Street”. The Court accepts with hesitancy that the excuse provided is reasonable.
9. The applicant must also show an arguable case. The respondent questions whether the applicant lodged an election pursuant to s.651(6)(b). The Court is unable to determine whether an election was filed within 28 days of the issue of the Certificate. It is unable to do so on material before it, as the applicant has not provided the appropriate material. Whether or not that has been done is a matter for argument. The respondent also questions whether s.663(6) has been complied with. The matter is set down for hearing on 28 May 2009.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 11 February 2009