Australian Nursing Federation v Numurkah

[1998] FCA 453

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1334  of   1997

BETWEEN:	AUSTRALIAN NURSING FEDERATION APPLICANT
AND:	NUMURKAH AND DISTRICT WAR MEMORIAL HOSPITAL RESPONDENT
JUDGE(S):		PARKINSON JR
DATE OF ORDER:		28 APRIL 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. This matter be referred to the Listing Master for referral to a Judge for hearing at the earliest time.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1334 of 1997

BETWEEN:	AUSTRALIAN NURSING FEDERATION APPLICANT
AND:	NUMURKAH AND DISTRICT WAR MEMORIAL HOSPITAL RESPONDENT

JUDICIAL REGISTRAR:	PARKINSON
DATE:	28 APRIL 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is my decision in relation to a jurisdictional application made by the respondent in respect of these proceedings. This is a proceeding brought pursuant to s 178 of the Workplace Relations Act 1996 (Cth).  The proceeding is brought by Application accompanied by a Statement of Claim.  In this proceeding application is made for various orders.  Those orders include orders (1) and (2), which seeks the imposition of a penalty for an alleged breach of the relevant award, and orders (3) to (12), which seek that the respondent pay to the relevant employee alleged underpayments. 

In relation to the employees referred to in paragraphs 3 to 6, the amount of underpayments alleged exceeds the sum of $10,000.  The respondent contends that such a claim is beyond the jurisdiction of a Judicial Registrar to hear and determine, as a consequence of the operation of ss 18A(b)(1) and 18A(b)(2) of the Federal Court Act 1976 and Order 79 of the Federal Court Rules.  I accept the respondent's counsel's submission as to the appropriate interpretation of these provisions as they operate upon the jurisdiction of a Judicial Registrar.  The point at which the applicant's counsel takes issue with the respondent is in relation to whether there is a claim for an amount in excess of $10,000.

It is submitted that the proceeding before the Court arises of s 178 and is a claim for a breach of award and an imposition of penalty.  It is submitted that the contents of paragraphs 3 to 12 of the application are merely foreshadowing orders which might be sought, or are seeking ancillary relief.  I can see no basis, on an ordinary reading of the application, to characterise the matters contained in paragraphs 3 to 12, as anything other than claims made by the applicant in the proceedings.  This is apparent from the outset of the form used in compliance with Order 4 Rule 2 of the Rules of Court, where it is stated:

"On the grounds appearing in the accompanying statement of claim, the applicant claims."

The accompanying Statement of Claim also claims the relief specified in the application. I accept the applicant's submission that the proceeding is principally that for a penalty arising pursuant to s 178(1) of the act and that the power arising from s 178(6), and indeed s 178(7), is an ancillary power. However this characterisation does not prevent the matters referred to in subsection 6 from being the subject of a claim, as in my view they expressly are, in paragraphs 3 to 6 of the application, and supported by the Statement of Claim, paragraphs 6 to 41. Further, it is clear that the ancillary power, as it is described by counsel for the applicant, contained in section 179(6), arises under the Workplace Relations Act 1996, not under some other legislation such as the Federal Court Act 1976 or Rules, where the limitations of Order 79 Rule 2 may not be applicable.

In this regard I am satisfied that the contents of paragraphs 3 to 6 of the application, seeking as they do orders in respect of amounts of underpayments, constitute the proceeding, to use the language of the Act and the Rules, as a proceeding involving a claim under that act for an amount of more than $10,000.  I am satisfied that I do not have jurisdiction to hear and determine the application insofar as the application contains the claims for orders set out in paragraphs 3 to 6 of the application filed on 14 April 1997.  That is my decision in relation to that matter. 

I will now hear from counsel in relation to the progression of this case.

I propose to refer this matter to the listings officer with a copy of my decision in relation to the jurisdiction of this matter, and a recommendation that this matter be referred to the judge for trial as soon as possible.  I will make inquiries to ascertain whether steps can be taken to progress this matter in a speedy fashion, given the circumstances of today's ruling.

Yes, thank you.  Having regard to my decision earlier in these proceedings, the order of the Court will be that this matter be referred to the listing master for referral to a judge for hearing at the earliest time.  These proceedings, in those circumstances, are adjourned.  The parties will be advised of the listing date.

I certify that this and the preceding
two (2) pages are a true copy of
the reasons for judgment of
Judicial Registrar Parkinson.

Associate:     KAREN HALSE
Dated:            28 APRIL 1998

APPEARANCES Counsel for the Applicant:	Mr R Niall
Solicitors for Applicant:	Ryan Carlisle Thomas
Counsel for the Respondent:	Mr S Wood
Solicitors for Respondent:	Victoria Hospitals Industrial Association
Date of Hearing:	28 April 1998
Date of Judgment:	28 April 1998