Bennett v Minister Administering the State Service Act 2000
[2009] TASSC 95
•19 October 2009
[2009] TASSC 95
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Bennett v Minister Administering the State Service Act 2000 [2009] TASSC 95
PARTIES: BENNETT, Stephen (Dr)
v
BARTLETT, David (the Hon)
MINISTER ADMINISTERING
THE STATE SERVICE ACT 2000
FILE NO/S: 394/2009
JUDGMENT
APPEALED FROM: Minister Administering the State Service Act 2000
v Leary [2009] TASSC 24
DELIVERED ON: 19 October 2009
DELIVERED AT: Hobart
HEARING DATE: 13 October 2009
JUDGMENT OF: Crawford CJ, Evans and Tennent JJ
CATCHWORDS:
Industrial Law – Tasmania – Industrial Commission – Appeals to Full Bench – Hearings in respect of industrial disputes relating to termination of employment – Commissioner may order that things be done or action be taken for the purpose of preventing or settling an industrial dispute – Appeal to Full Bench from orders made under that provision – Hearing of dispute as to unfair dismissal – Findings that valid reasons for termination and the dismissal not unfair – Commissioner "dismissed application" – Whether appeal to Full Bench incompetent.
Industrial Relations Act 1984 (Tas), ss31(1), 70(1)(b).
Aust Dig Industrial Law [1130]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: T J Ellis SC
Solicitors:
Appellant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 95
Number of paragraphs: 23
Serial No 95/2009
File No 394/2009
DR STEPHEN BENNETT v THE HONOURABLE DAVID BARTLETT,
MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
EVANS J
TENNENT J
19 October 2009
Order of the Court
Appeal dismissed.
Serial No 95/2009
File No 394/2009
DR STEPHEN BENNETT v THE HONOURABLE DAVID BARTLETT,
MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
19 October 2009
The appellant was employed by a State-operated general medical practice. His employment was terminated on 19 March 2007. Under the Industrial Relations Act 1984 ("the Act"), s29(1A), he applied to the President of the Tasmanian Industrial Commission for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of his employment, which he claimed to have been unfair. The President allocated the matter to a Commissioner for hearing.
The hearing occupied several days. The Commissioner reserved his decision. Lengthy reasons for decision were later delivered, the Commissioner concluding that the appellant had failed to prove the termination was unfair, as required by the Act, s30(6). The Commissioner found that the appellant was not unfairly dismissed and concluded his reasons with the statement that, "the application is dismissed, and I so Order".
The appellant appealed to a Full Bench of the Commission. Section 70(1)(b) enabled an appeal to be made to the Full Bench by the party who applied for the hearing, against "an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement".
As the respondent to the appeal, the Minister sought and was granted a preliminary hearing before the Full Bench as to the competency of the appeal. It was argued on the Minister's behalf that s70(1)(b) did not enable an appeal against an order of dismissal following a hearing in respect of an industrial dispute relating to the termination of employment, because an order of dismissal was not an order made under s31(1). The Full Bench ruled that the order of the Commissioner was one made pursuant to s31(1), and therefore it was capable of being appealed. Clear reasons for the ruling are not apparent from what the Full Bench published.
Under s72(2), the Minister obtained an order nisi calling on the Full Bench to show cause why the decision should not be quashed in whole or in part. The return of the order nisi was heard by a judge of the Court. Two main issues were considered by the judge.
The first issue was whether the decision of the Full Bench was "a decision of a Full Bench in respect of an appeal" as required by s72(2). The learned judge held that it was.
The second issue was whether the Commissioner's order of dismissal was an order made under s31(1) as required by s70(1)(b). The learned judge held that it was not, because s31(1) makes no provision for an order that simply dismisses a matter. The learned judge held that for that reason, the Commissioner's order of dismissal was "not capable of being the subject of an appeal to the Full Bench pursuant to s72(2)". The reference to s72(2) was erroneous. The argument before the learned judge concerned s70(1)(b) and it is clear that was the statutory provision the learned judge had in mind. The error in expression can have no affect on the outcome of the case.
The learned judge made the order nisi absolute, ordering that the ruling of the Full Bench made on 17 December 2008 that the order of the Commissioner was one made pursuant to s31(1) and therefore capable of being appealed, be quashed.
The appeal to this Court
The appellant appealed to this Court. Only two grounds of appeal were maintained by him. The first was that the learned judge erred in holding that the decision of the Full Bench as to the competency of the appeal before it was a "decision with respect to an appeal" as required by s72(2). The second ground was that the learned judge erred by holding that the Commissioner's order dismissing the application was not an order under s31(1) and accordingly not capable of being the subject of an appeal to the Full Bench pursuant to s70(1)(b).
Was the decision of the Full Bench a decision with respect to an appeal?
It was common ground at the hearing of the appeal that the answer to this question is that the decision was one with respect to an appeal. Direct authority for that is Commissioner of Corrective Services v Walker [2007] NSWCA 213 where, at par31, Santow JA (Mason P and McColl JA agreeing) said:
"This was a decision of a Tribunal as to whether it should or should not entertain the appellant’s appeal, by reference to whether the appeal to the Tribunal was competent. Though it was essentially a decision as to jurisdiction, that to my mind is no less a decision of the Tribunal 'in respect of an appeal' as would be a merits decision in relation to that appeal once jurisdiction was assumed."
What was argued by the appellant, without making it a ground of appeal, was that a court should not entertain appeals from decisions or rulings made in the course of proceedings, but should require that the proceedings run their course until a final order is made determining the ultimate outcome of the proceedings, following which a losing party may appeal against the final order and complain of any material decisions or rulings made along the way.
The appellant particularly referred to my statements, and those of Evans J, in Port of Devonport Corporation Pty Ltd v Abey (2005) 15 Tas R 158 at pars35 and 47 – 49, to the effect that on an application under the Judicial Review Act 2000 to review a decision, it will usually, but not always, be desirable for the Court to exercise its discretion under that Act to stay or dismiss an application to review a decision given in the course of ongoing proceedings which have not been finally determined, and that only applications to review the final outcome of the proceedings should be entertained.
However, this is not a case that concerns the provisions of the Judicial Review Act, nor is it suggested that the Act gave the learned judge a discretion whether or not to entertain the Minister's appeal. In any event, the learned judge entertained and determined the appeal without opposition from the appellant, who, I understand, chose to sit in the public area of the Court and listen, but take no active part. In the circumstances, it would be inappropriate for this Court to hold that the learned judge should have exercised a discretion not to hear the appeal, when the appellant did not seek to have such a discretion exercised by the learned judge.
Was the appellant entitled to appeal from the order of dismissal?
The appellant submitted that as a matter of fairness and equity, his entitlement to appeal from the decision of the Commissioner should be upheld. However, the submission ignores that a right of appeal is a statutory remedy and not a common law or equitable right, or one awarded out of fairness. Commissioner of Railways v Cavanough (1935) 53 CLR 220 at 225.
What is concerned here is a question of statutory construction. While, if there be doubt, a consideration of fairness and justice might influence an interpretation of the Act, the Court's principal task is to have regard to the provisions of the Act itself.
The only right of appeal relied upon by the appellant is that given by s70(1)(b). It permits an appeal to the Full Bench against "an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of … any termination of employment … by … the party who applied for the hearing …". The question that arises is whether the order of dismissal that was made by the Commissioner was an order under s31(1). It is in the following terms:
"(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken."
That provision authorises, for the purpose of preventing or settling an industrial dispute in respect of which a hearing is convened, the making of an order directing that anything required to be done, be done, or that any action required to be taken, be taken. No order of that nature was made by the Commissioner. The language used in s31(1) cannot be extended to include an order of dismissal. To extend it in that way would be to abuse the language used.
By virtue of s30(6), the appellant bore the onus of proving to the Commissioner that his employment was unfairly terminated. If he failed to persuade the Commissioner of that, the Commissioner was authorised by s21(2)(c)(iv) to dismiss the matter. That is what occurred here. There is nothing in s70(1)(b) authorising an appeal from a dismissal.
For these reasons, I respectfully concur with the learned judge when he expressed the view that "no amount of generosity in the approach can result in a construction of s31(1) which is wide enough to include what it is that the Commissioner did in this case".
The appeal should be dismissed.
File No 394/2009
DR STEPHEN BENNETT v THE HONOURABLE DAVID BARTLETT,
MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
REASONS FOR JUDGMENT FULL COURT
EVANS J
19 October 2009
I agree with the reasons for judgment prepared by the Chief Justice, and would also dismiss this appeal.
I add that the effect given to the words "an order made by a Commissioner under section 31(1)" in the Industrial Relations Act 1984 ("the Act"), s70(1)(b), by the decision that is upheld by this appeal is not novel and accords with some past decisions of the Full Bench of the Tasmanian Industrial Commission. Those words are crucial to the jurisdiction of the Full Bench to hear the appeal in question. They were introduced into s70 by the Industrial Relations Amendment (Enterprise Agreements and Workplace Freedom) Act 1992 which came into effect on 1 March 1993. In Tasmanian Chamber of Commerce and Industry Ltd (T4774 of 1993), the Full Bench dealt with a number of threshold points raised on an appeal from proceedings that involved a dispute between Harriett Gunn and Fahan School in relation to Ms Gunn's employment. Deputy President Robinson, who had heard those proceedings, found that Ms Gunn had been unfairly dismissed, and ordered Fahan School to pay her a sum of money. In reasons for decision dated 24 March 1994, the Full Bench said that as the appeal provisions dealing with s31(1) orders were relatively new, it was necessary to provide some guidance on them for the future. The effect of the Full Bench's decision was to recognise that for presently relevant purposes, the right of appeal was confined to orders of a Commissioner under s31(1), and note that there was no provision for an appeal against a decision of a Commissioner in relation to an interlocutory matter, such as the adjournment of a hearing, and there was no provision for an appeal against a finding that a person had been unfairly dismissed. The Full Bench did, however, conclude that where an order based on a finding that a person had been unfairly dismissed had been made pursuant to s31(1), an appeal would lie against that order. The obverse of this decision is that a finding that a person had not been unfairly dismissed could not be the subject of an appeal as no order pursuant to s31(1) could be made arising from that finding. The outcome of Australian Mines and Metals Association (Inc) for Tasmanian Electro Metallurgical Company Pty Ltd v Paul John Rundle (T8454 of 1999), a decision dated 18 August 1999, was to the same effect. In that case, an endeavour was made to appeal the decision on an application for an extension of time within which to bring proceedings seeking an order under s31(1). The Full Bench held that until an order under s31(1) had in fact been made, it had no jurisdiction to hear an appeal.
File No 394/2009
DR STEPHEN BENNETT v THE HONOURABLE DAVID BARTLETT,
MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
REASONS FOR JUDGMENT FULL COURT
TENNENT J
19 October 2009
I have had the opportunity to read the draft reasons of the Chief Justice in this matter. I agree with those reasons and would also dismiss the appeal
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