Construction, Forestry, Mining and Energy Union v BHP Refractories Pty Limited
[1995] IRCA 261
•17 March 1995
INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination.
PRACTICE AND PROCEDURE - Hearing by Judicial Registrar - Ruling on some issues - Application for review of decision - Whether application was premature - Costs order - Power of Court to award costs.
Industrial Relation Act 1988, ss.347, 376, 377, 412, 417 and 419.
Rules of Industrial Relations Court, Order 74, rr.2 and 3.
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v. BHP REFRACTORIES PTY LIMITED
No. NI. 0288R of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 17 MARCH 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 0288R of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN:CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND:BHP REFRACTORIES PTY LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 17 MARCH 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The notice of motion filed on 6 February 1995 be dismissed.
BHP Refractories Pty Limited pay the costs incurred by Construction, Forestry, Mining and Energy Union of Australia in respect of that notice of motion.
Failing agreement on the quantum of the costs, the costs be taxed in accordance with the Federal Court scale.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 0288R of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN:CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND:BHP REFRACTORIES PTY LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 17 MARCH 1995
EXTEMPORE REASONS FOR JUDGMENT
WILCOX CJ: The matter before the Court is a notice of motion filed on 6 February 1995 by BHP Refractories Pty Limited, the respondent in a proceeding brought by the Construction, Forestry, Mining and Energy Union of Australia, alleging the unlawful termination by BHP Refractories of the employment of Raymond Drury. The unlawful termination claim came to Judicial Registrar Walker. BHP Refractories contended that there was no jurisdiction because the case fell within the terms of regulation 30B(1)(a) or regulation 30B(1)(b) of the Industrial Relations Regulations.
The respondent also contended that the circumstances of the termination did not amount to a breach of Division 3 of Part 6A of the Industrial Relations Act, even if those provisions applied to the case. Judicial Registrar Walker was persuaded to deal with those issues in advance of considering the question of remedy. On 8 December 1994, he completed the hearing of the matter on those issues, and, on 17 January 1995, he handed down a document entitled "Reasons for Judgment" in which he dealt with those issues, rejecting the case made by BHP Refractories in respect of each of them.
The last paragraph of that document was in these terms:
"Having determined this matter in favour of the applicant the question of remedy as discussed at the hearing on 8 December 1994 will be dealt with on a date as arranged by the applicant convenient to both parties."
The notice of motion seeks review of this decision. The subject matter of the application for review is described in the notice of motion as being "the judgment of Judicial Registrar Walker on 17 December 1995". No orders have yet been made by Judicial Registrar Walker, whether a declaration of right or an order for reinstatement or an order for payment of compensation.
In my opinion, the application for review is premature. I do not think that there is yet proper subject matter for the application.
In order to demonstrate the validity of this view, it is necessary to start with s.377 of the Industrial Relations Act. Subsection (1) of that section provides for review in these terms:
"A party to proceedings may apply to the Court to review a Judicial Registrar's exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the rules of the Court for such further period as is allowed in accordance with the rules."
It will be noted that the subsection speaks about review of a Judicial Registrar's exercise of a power delegated under s.376. When one goes to s.376(1), one finds that it provides that the rules of Court may delegate to Judicial Registrars, either generally or as otherwise provided in the rules, "all or any of the Court's powers in relation to proceedings in the Court" in so far as the proceedings relate, inter alia, to a claim that the termination of an employee's employment was unlawful.
The relevant rules of Court are to be found in Order 74 of the Court Rules. Rule 2 delegates to Judicial Registrars "all the powers of the Court" in relation, inter alia, to a claim that the termination of an employee's employment was unlawful. Rule 3 prescribes the time for an application for review of the exercise of a power by a Judicial Registrar, namely, 21 days or such further time as is allowed by the Court or a judge for special reasons upon application at any time.
It will be noted that the scheme of both the statutory provisions and the rules is for review of the exercise of a power by the Judicial Registrar, that is to say, the exercise of one of the powers of the Court. There is no provision for review of conclusions reached by a Judicial Registrar. Those conclusions have no operation until they are translated into an order by which the Judicial Registrar exercises the Court's power.
In considering what is meant by an exercise of the Court's powers, it is useful to look at Division 5 of Part 14 of the Act relating to the jurisdiction of the Court. Section 412(1)(a) gives to the Court jurisdiction with respect to unlawful termination claims. Section 417 provides for the making of declarations of right. Section 419 provides:
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."
It seems to me that when ss.376 and 377 speak of the exercise of the power of the Court, they refer to provisions such as s.419, and perhaps s.417. They do not have in mind steps along the way, whereby a decision-maker reaches a conclusion in favour of a particular party in respect of a particular issue. The point is an important one. It would be highly undesirable if an announcement by a Judicial Registrar of conclusions on preliminary matters was thought to require a party against whom the conclusions are reached to protect its position by seeking review. This would lead to a fragmentation of the review process, and unnecessary costs and delay. That has happened in the present case. In my opinion, the application is misconceived. Judicial Registrar Walker has not yet exercised the power of the Court. There is nothing to review. Accordingly, I propose to dismiss the notice of motion.
Mr Crawshaw, on behalf of the union, has sought an order for costs. Reference has been made from the bar table to the history of the matter. There is some disagreement between counsel in that connection. I do not propose to act on any particular view of that history. The relevant question is whether this case falls within the exception in s.347 of the Industrial Relations Act. Section 347(1) provides:
"A party to a proceeding (including an appeal) in a matter arising under this act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceedings vexatiously or without reasonable cause."
There is a distinction between a proceeding - referred to in the subsection - and the underlying matter out of which the proceeding arises. In the present case the underlying matter is the claim the union that Mr Drury's employment was unlawfully terminated; the relevant proceeding is the notice of motion seeking review of the Judicial Registrar's decision. BHP Refractories is the applicant in respect of that proceeding. Accordingly, the question is whether it instituted that proceeding - that is to say, filed the notice of motion - vexatiously or without reasonable cause. I do not think that it can be said that the step was taken vexatiously. No doubt, BHP Refractories genuinely felt aggrieved at the conclusion reached by the Judicial Registrar in respect of its claim that the case was covered by one or other of the provisions of the regulations and that there was no unlawful termination. However, I think that the notice of motion was filed without reasonable cause. A practical test is to ask oneself whether, on the facts known to the person instituting the proceeding, the relief sought was something which it was fairly arguable could be obtained. As I have indicated, any proper analysis of the situation shows that there was not an exercise of power in relation to which review could be obtained at this stage. Accordingly, I think that the notice of motion was filed without reasonable cause and that the matter falls within the exception in subs.(1). It is appropriate to make an order for the costs of the notice of motion incurred by the union.
I mentioned to counsel that this seems to be a case where, even at this stage, a further mediation conference may be useful. Both parties are prepared to cooperate in that regard. I understand that one of the Judicial Registrars of the Court - other than Mr Walker who is, of course, part-heard - is immediately available to conduct a mediation conference. If the conference is successful, it will be open to the parties to make such agreement as they wish in respect, inter alia, of costs; but I will make the costs order that that will apply unless there is an agreement to the contrary. If there is no agreement today, then the matter should be listed as soon as possible before Judicial Registrar Walker for completion of the hearing and the making of formal orders by him. If any party wishes to seek review of those formal orders when they are eventually made, then that party has that right.
The order that I make is as follows: I dismiss the notice of motion for review filed on 6 February 1995. I order BHP Refractories Pty Limited to pay the costs incurred by Construction, Forestry, Mining and Energy Union of Australia in respect of that notice of motion. Failing agreement on the quantum of those costs, they are to be taxed in accordance with the Federal Court scale. The reason for that is that the Industrial Relations Court does not have a separate scale, but the rules permit taxation according to the Federal Court scale where that is ordered.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of his Honour Chief Justice Wilcox.
Associate:
Dated: 17 March 1995
APPEARANCES
Counsel for the Applicant: S Crawshaw
Solicitor for the Applicant: D Reiss of the Construction, Forestry, Mining and Energy Union
Counsel for the Respondent: P C Coleman
Solicitor for the Respondent: Blake Dawson Waldron
Date of hearing: 17 March 1995
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