Bysouth v Tawlord Nominees Pty Ltd
[1995] IRCA 382
•27 June 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. VI 2473 of 1994
VICTORIA DISTRICT REGISTRY )
BETTINA BYSOUTH Applicant
and
TAWLORD NOMINEES PTY. LTD. Respondent
27 JUNE 1995 REASONS FOR JUDGMENT KEELY J.
In this matter the employee's application, filed 25 November 1994, named City Family Hotel as the employer. A Judicial Registrar on 28 February 1995 ordered "the respondent" to pay $6000 compensation to the applicant. A notice of employer's appearance filed on 1 March 1995, (i.e. after the Judicial Registrar's order was made) stated that the employer's name was Tawlord Nominees Pty. Ltd. ("the respondent employer"). A notice of motion by the respondent employer for a review of the order was filed, naming the company as the respondent employer. It will be noted that the name of the respondent appearing in the Judicial Registrar's reasons for judgment and in the documents filed in the court at that time was City Family Hotel.
The respondent employer's notice of a motion for an order of review also sought "so far as may be necessary" a stay of the order pending the hearing and determination of the review. On the hearing of the motion, counsel for the respondent employer relied upon a written submission, which included the following propositions:
"A.The orders of a Judicial Registrar made in the exercise of delegated powers, although of force and effect when made, are unenforceable for so long as they are subject to review by the Court under s.377 of the Act.
B.If, contrary to the first contention, orders of a Judicial Registrar are enforceable while they are subject to review under s.377 of the Act, it is contrary to equity, law and principle that a party to a proceeding which is to be the subject of a hearing de novo be ordered to make good the other party's relief before the issues between the parties are judicially determined by the Court in its original jurisdiction."
Section 377 of the Industrial Relations Act 1988 (the Act) relevantly provides as follows:
"(1)A party to proceedings may apply to the Court to review a Judicial Registrar's exercise in the proceedings of a power delegated under s.376 . . . .
(2)On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar's exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised."
Counsel for the respondent employer submitted that a review under s.377 must
be a hearing de novo. The question of what is the nature of such a review was dealt with by Moore J in Association of Professional Engineers, Scientists and Managers Australia on Behalf of Cross v. Deniliquin Council (1995) 129 ALR 418. I agree, with respect, with his Honour's conclusion (at 425) that s.377 must "be construed so as to treat the review as a hearing de novo".
The written submission of the respondent employer's counsel accepted that in Harris v. Caladine (1991) 172 CLR 84;
". . . the High Court by a majority held . . . that the orders made by the Registrar under the relevant provisions of that Act were valid orders, and not conditional only, `until set aside on review' per Mason CJ and Deane J (p.97); per Dawson J (p.127); and per Gaudron J (p.154)."
It was submitted that the statements by those members of the High Court were distinguishable because they were made in dealing with submissions as to "a specific question that had been raised in the High Court as to the nature of the proceedings that were before the full court of the Family Court on review". Counsel also sought to rely upon the fact that the Family Court rules expressly provided "that an application for review does not operate as a stay of the order [of the Judicial Registrar]".
The passages in the reasons for judgment in Harris v Caladine were as follows:
"In the result the delegation of powers to Judicial Registrars and Registrars (including Deputy Registrars) under 0.36A, r.2 and s.37A was valid. The order made by the Deputy Registrar was valid and effective (and not conditional only) until set aside on review under O.36A, r.7(4) or s.37A(10)" per Mason CJ and Deane J (at 96-97).
"I agree with Mason C.J. and Deane J., Brennan and Gaudron JJ. that the order made by the Registrar continues in force unless and until the Court, after undertaking a review, makes an order that it be set aside: Kinch v. Walcott [1929] AC 482; In re South American & Mexican Co.; Ex parte Bank of England [1895] 1 Ch. 37. "Indeed, O. 36A. r. 7(3) provides that an application for a review of an exercise of power by a Registrar shall not operate as a stay of the order under review." per Dawson J (at 126-127)
". . . . But, as is clear from the word 'review' and from the expression `exercise of power', it was also intended that a decision made in exercise of delegated power should have force and effect unless and until set aside in or in consequence of the review process. Thus, a decision is not one that is provisional or, as argued on behalf of the Appellant, one that is set at nought by the filing of an application for review, with the consequence that in the present case the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s.79 of the Act. Rather, the review process is one in which the Family Court must first determine whether the order should be set aside. That issue may be decided on the basis that, even though there is no discernible error in the decision in question, circumstances, including intervening circumstances, require a different result." per Gaudron J (at 154)
I am unable to uphold the submission by the respondent employer's counsel that Harris v Caladine is distinguishable because of "a specific question that had been raised in the High Court as to the nature of the proceedings before the full court of the Family Court on review." Nor can it be held that it is distinguishable by reason of the express provision in Order 36A Rule 7(3) of the Family Court rules that "an application for a review . . . shall not operate as a stay of the order under review" of the Judicial Registrar. In my opinion the passages quoted demonstrate that that provision in the rules was not the basis for their Honours' conclusions. The last sentence in the passage quoted from the reasons for judgment of Dawson J is expressed simply as confirmation of the conclusion already reached and expressed in the preceding sentence.
Nor am I able to uphold the submission by the respondent employer's counsel that the orders of the Judicial Registrar "although of force and effect when made, are unenforceable for so long as they are subject to review by the Court under s.377 of the Act". It was said in Harris v. Caladine (1) that the Judicial Registrar's order was "valid and effective" . . . until set aside on review" (2) "that the order . . . continues in force unless and until the Court, after undertaking a review, makes an order that it be set aside" and (3) that the decision "should have force and effect unless and until set aside in or in consequence of the review process".
The respondent employer's counsel submitted that the order of the Judicial Registrar "although of force and effect when made [is] unenforceable for so long as [it is] subject to review by the Court under s.377". He submitted that that proposition "is not inconsistent with the notion of validity of the order for all other purposes." He also submitted that the power conferred on the court by s.377 is:
". . . not a power to make orders in relation to the decision of the Judicial Registrar. Furthermore, the power conferred by s.377(2) of the Act is not to be exercised until the review has taken place: cf. Brandy v. Human Rights and Equal Opportunity Commission [(1995) 127 ALR 1] per Mason CJ, Brennan and Toohey JJ [at 10-13] and p.26 per Deane, Dawson, Gaudron and McHugh JJ [at 19]. Accordingly, it is the application to the Court in its original form, i.e. as an application under s.170EA of the Act, in respect of which the Court may make orders under s.377 of the Act."
In my opinion each of those submissions must be rejected.
In the course of elaborating orally on those submissions the respondent employer's counsel submitted that the order of the Judicial Registrar is unenforceable ". . . for so long as the order remains subject to review and that is 21 days under the rules or if an application is made within the 21 day period, for so long as that application is extant."
In answer to questions counsel said:
". . . it is unenforceable for the 21 day period . . . if there was no application for review and the 21 day period had expired, in my submission, the matter would be enforceable. But if an application subsequently made for a review after the 21 day period then the question of its enforceability might well depend upon what steps had been taken to enforce it, if any, and whether or not there are special reasons to grant . . . the extension of time for the review.
There are a number of imponderables in that particular point, your Honour, specifically as it says there must be special reasons and it must be on the basis of an application."
The last sentence of s.377 (2) confers power on the court to "make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised."
The respondent employer's counsel submitted that that sentence supported his contention that the court has no "power to make orders in relation to the decision of the Judicial Registrar" and that "the power conferred by s.377 (2) of the Act is not to be exercised until the review has taken place".
I am unable to uphold those submissions. In my opinion in s.377 (2) the words ". . . whatever order it considers appropriate in relation to the matter in relation to which the power was exercised" confer power on the court to make an order before the hearing of the review, staying the order made by the Judicial Registrar and if it considers it just to do so, ordering an amount be paid by the respondent employer to the Registrar pending the hearing and determination of the review.
The respondent employer's alternative contention (set out at the beginning of these reasons) was that it would be "contrary to equity, law and principle that [the employer should] be ordered to make good the other party's relief before the issues
between the parties are judicially determined by the Court in its original jurisdiction."
Having considered that submission together with those advanced by counsel for the applicant employee, in my opinion the proper course in all the circumstances is to order that the amount of $6,000, ordered by Judicial Registrar Fleming on 28 February 1995 to be paid to the applicant, be paid by the respondent employer, on or before 4 July 1995, to the Registrar of the court to be held in trust in an interest bearing account pending the hearing and determination of this matter or further order.
Having regard to the history of the matter, and the possibility of embarrassment, referred to by the applicant employee's counsel, I see much merit in the suggestion by him that the matter be referred for mediation. If the parties agree to that course I would so order (see Order 72 rule 1 of this court's rules). To enable that suggestion by the applicant to be replied to by the respondent employer, the matter will be adjourned to Friday 7 July 1995. However the costs of attending on that day can be avoided if the parties lodge, under Order 35 rule 10, a consent order complying with the terms of Order 72 as to mediation.
It should be added that the applicant employee's counsel submitted that an order for costs should be made against the respondent employer, saying that ". . . the respondent's proceedings might well be found to be instituted vexatiously." The respondent employer's counsel submitted that the application for review was not a "proceeding" within the meaning of s.347 of the Act. I reject that submission. I agree, with respect, with the following passage from the reasons for judgment of Wilcox CJ in Foxcroft v. The Ink Group Pty. Ltd. (1994) 57 IR 65 at 68 (1 IRCR 215 at 219):
"In applying this section, it is important to note that it refers to costs incurred by another party in `a proceeding . . . in a matter'. Within the one matter there may be a multiplicity of proceedings; for example, an appeal to a Full Court (see Marsh v Adamson (1985) 5 FCR 124; 11 IR 47), an application for leave to appeal (see Thompson v Hodder (1989) 21 FCR 467; 29 IR 339) or a motion for punishment for contempt (see Gregory v Philip Morris Ltd (1987) 20 IR 407). An application for review of a Judicial Registrar's decision is a proceeding in a matter. If an application is made vexatiously or without reasonable cause, the exception in s.347 operates to permit the Court to order the applicant for review
to pay the costs incurred by any other party in connection with that application."
As the review has not yet been heard by the court, there is of course no material before the court at this stage to show that the respondent employer's motion for an order of review was instituted "without reasonable cause". Any application by the applicant employee for an order for those costs to be paid by the employer to her could only be heard and decided after material supporting that application had been placed before the court.
I certify that this and the preceding six (6) pages are a true copy herein of the reasons for judgment of the Honourable Justice Keely.
Associate:
Date: 27 June 1995
Solicitor for the applicant employee : J.A. Middlemis
Counsel for the applicant employee : Mr. J. Ireland
Solicitor for the respondent employer : T.J. Mulvany & Co.
Counsel for the respondent employer : Mr. B. Lacy
Date of hearing : 3 April 1995
Date of judgment : 27 June 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - JUDICIAL REGISTAR'S ORDER - whether unenforceable whilst subject to review - whether automatically stayed by review application - whether COURT has POWER to STAY - whether to STAY or order payment to Registrar -whether review application is a "proceeding" within s. 347
Industrial Relations Act 1988 (Cth) ss. 347 & 377
Association of Professional Engineers, Scientists and Managers Australia v. Deniliquin Council (1995) 129 ALR 418 - applied
Brandy v. Human Rights and Equal Opportunity Commission
(1995) 127 ALR 1
Foxcroft v. The Ink Group Pty. Ltd. (1994) 57 IR 65; 1 IRCR 215 - applied
Harris v. Caladine (1991) 172 CLR 84
BYSOUTH v TAWLORD NOMINEES PTY LTD
NO: VI 2473 of 1994
KEELY J.
MELBOURNE
27 June 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) VI: 2473 of 1994
VICTORIA DISTRICT REGISTRY )
BETTINA BYSOUTH Applicant
and
TAWLORD NOMINEES PTY. LTD. Respondent
CORAM:Keely J.
PLACE:Melbourne
DATE:27 June 1995
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The amount of $6,000.00, ordered by Judicial Registrar Fleming on 28 February 1995 to be paid to the applicant by the respondent, be paid by 4 July 1995 to the Registrar of the court to be held in trust in an interest bearing account pending the hearing and determination of this matter or further order.
The matter be adjourned to a directions hearing on 7 July 1995 at 10.15 a.m.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Industrial Relations Court Rules.
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