David Charles Campbell and DDB Needham Melbourne Pty Ltd

[1994] IRCA 48

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

VICTORIA DISTRICT REGISTRY  No VI 281 of 1994

B E T W E E N :

KERRY ANN KEATING
  Applicant

A N D :

TEICO INVESTMENTS PTY LTD
  Respondent

COURT:     NORTHROP J

PLACE:     MELBOURNE

DATE: 14 SEPTEMBER 1994

REASONS FOR JUDGMENT

The matter before the Court is a motion filed by the respondent yesterday, 13 September 1994.  By the motion, the respondent is seeking orders:

1. That the decision of Judicial Registrar Tomlinson made 13 September 1994 by which an application to adjourn the hearing of the proceeding was refused, be reviewed pursuant to ss377(1) of the Industrial Relations Act 1988;

1. That the Court order that the delegated power to hear and determine the application be exercised by a Judge pursuant to ss378(2) of the Act;

1. That pending the hearing of the application in 2 above, the Court order that the further hearing of the application before Judicial Registrar Tomlinson do not proceed in terms of ss378(4) of the Act.

During the course of argument discussions ranged over a wide area as to the nature of the powers conferred by the Industrial Relations Act, the nature of the function of a Judicial Registrar and the nature of the power of the Court to review an exercise of a power delegated to a Judicial Registrar under s376 of the Act.  In the event, the matter before the Court is now limited to one issue only, namely a review of the decision by a Judicial Registrar to refuse to grant the adjournment sought yesterday, or, adopting the wording of the Act, what is being sought is a review of the exercise of a power delegated to a Judicial Registrar under s376 of the Act.

Subsection 377(1) of the Act provides:

"377(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 section 376.

... "

Subsection 377(2) is as follows:

"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."

These provisions are almost identical with provisions contained in s31A of the Bankruptcy Act 1966. Under that section certain powers of the Federal Court in identified matters may be exercised by Registrars of the Federal Court. Subsections 31A(6) and (7) are, for present purposes, identical with the provisions of ss377(1) and (2) of the Industrial Relations Act. Authorities have made it clear that a review under ss31A(6) of the Bankruptcy Act is by way of a re-hearing de novo on material put to the Court at that hearing.  This is made clear by a reference to one of a number of cases on this issue, see Re Kwiatek  Ex parte Big J Ltd v Pattison (1989) 21 FCR 374.

My tentative view is that a similar approach should be adopted in relation to reviews under s377 of the Industrial Relations Act with the result that when a final order is made by a Judicial Registrar in a proceeding of the kind which I will describe in a moment, a party can seek a review of that final decision.  That review is as of right.  The Court is under a duty to hear and determine that review in conformity with the views expressed in Re Kwiatek.

The use of the word "may" in ss377(2) of the Industrial Relations Act does not confer a discretion on the Court.  It confers a power on the Court.  This is made clear by a number of authorities, one of which is Bowling v General-Motors Holden's Pty Ltd (1989) 50 FLR 79. See also what was said by the then Chief Justice of the High Court Sir Owen Dixon in R v Kelly  Ex parte Berman (1953) 89 CLR 608 at 620-621 where his Honour considered a similar provision in the Conciliation and Arbitration Act 1904-52 and said there that the word "may" is not discretionary but is the source of power. On review, the Court is required to look into the whole matter as part of its original jurisdiction.

The problem in the present case arises because of the provisions of s378 of the Industrial Relations Act.  Subsection 378(1) empowers a Judicial Registrar to refer any matter before that Registrar to the Court.  Subsections (2), (3) and (4) are relevant for present purposes.  They provide:

"(2)If a Judicial Registrar proposes to exercise in a particular case a power delegated under section 376 but has not begun to exercise the power in that case, a Judge may order that the power be exercised in that case by a Judge.

(3)An order under subsection (2) may only be made on application by a person who would be a party to the proceedings before the Judicial Registrar in relation to the proposed exercise of the power.

(4)If an application is made under subsection (3), the Judicial Registrar must not exercise the power in that case until the application has been determined."

On their face, these three subsections appear to be part of a procedural policy to enable a party to apply to the Court to have a proceeding, which is due to come on for hearing at some time in the future before a Judicial Registrar, to be heard by a Judge.  This is illustrated very clearly by subsection (3) which limits the range of persons who can make such an application.  Subsection (2) imposes a limitation on the exercise of the power in the sense that once a Judicial Registrar has begun to exercise the power delegated to that Registrar under s376, a Judge cannot exercise the power to direct the proceeding be heard by Judge.  In the present case, there is some confusion as to what the facts are but, fortunately, I do not have to decide those matters in any final form.

In the present case, the applicant commenced proceedings under s170EA of the Industrial Relations Act seeking a remedy for the unlawful termination of her employment.  The termination is said to have occurred on 2 May 1994.  The application was issued on 4 May 1994.  On 30 May 1994, the Court directed the matter be referred to the Industrial Relations Commission for conciliation, that order being made pursuant to the provisions of s170EC of the Act.  A conciliation conference was held on 20 June 1994 and on 29 June 1994 the Commission gave a certificate certifying that no settlement was reached.  On 15 July 1994, at a directions hearing, directions were given as to future interlocutory steps to be taken before the hearing of the application.  At a further directions hearing, held on 29 August 1994, the hearing was fixed to commence on Tuesday, 13 September 1994, at 10.15 am.  Between 29 August and 13 September there were some discussions between the parties as to a possible adjournment of the hearing.  Although there was, apparently, general agreement as to some adjournment, there was no final agreement as to the period of an adjournment.  On 13 September 1994 at the appointed time, the matter was listed for hearing and legal advisers appeared for both the applicant and the respondent.

An issue of fact may well arise as to whether there was an appearance in the matter or an appearance only for the purpose of an application for an adjournment but at a time before any step in the hearing of the proceeding itself commenced.  After appearances and, presumably, after the matter was called on for hearing, the respondent sought an adjournment for reason which, I will assume, could justify the granting of an adjournment.  The Judicial Registrar refused to grant the adjournment and stood the matter down until 2.15 pm, at which time she continued with the hearing of the application in the absence of the respondent.  In the meantime, the respondent sought to have the matter brought before a Judge pursuant to the motion which I mentioned earlier in these reasons.  The motion came on for hearing before me earlier this morning.  There was no objection to the short service of the notice of motion.

In this context questions arose as to whether the Court could proceed with the hearing of the motion insofar as the main proceeding was concerned.  The doubt was to whether subsections 378(2), (3) and (4) of the Act had the effect of preventing the Judge from exercising the power of review since the Judicial Registrar had begun to exercise the particular power delegated to her under s376.  As I understand it, counsel for the respondent is not pursuing that matter further but, as a result of what occurred during the course of the hearing of the motion, is now seeking to review the exercise of power conferred upon the Judicial Registrar by another provision of the Act.  I turn to consider that matter now.

The powers that can be delegated to a Judicial Registrar, for relevant purposes, are contained in s376 of the Act.  The relevant parts of ss376(1) are:

1. The Rules of Court may delegate to the Judicial Registrars ... all or any of the Court's powers in relation to proceedings in the Court insofar as the proceedings relate to:

(a)  ...

(b)a claim that the termination of an employee's employment was unlawful, ..."

The Rules of Court of the Industrial Relations Court, by O74, provide for the delegation of powers to Judicial Registrars.  For relevant purposes r2 provides as follows:

"2.In relation to any proceeding in the Court, in so far as that proceeding relates to:

(a)  ...

(b)a claim that the termination of an employee's employment was unlawful ...

all the powers of the Court and all the powers that may be delegated to a Registrar under section 466 of the Act are delegated to each Judicial Registrar."

On one view, the proceeding before the Judicial Registrar was a proceeding to hear and determine the claim for a remedy under section 170EA of the Act. Section 466 of the Industrial Relations Act is a more specific power which refers to powers that may be delegated to Registrars of the Court. A distinction must be noted between Registrars in this section and Judicial Registrars. The relevant power conferred by s466 is as follows:

1. Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:

(a)  ...

(e)the power, in proceedings in the Court, to make an order adjourning the hearing of the proceedings;

(f)  ... "

It was argued on behalf of the respondent that what occurred before the Judicial Registrar yesterday morning was the exercise of the power contained in paragraph 466(1)(e) of the Industrial Relations Act, the power to adjourn the hearing of a proceeding and that this was a power which could be reviewed under s377 of the Industrial Relations Act.

Counsel for the applicant disputed that submission on the basis that there was no substance in it and that in truth, the application for the adjournment was part of, or arose out of, and was incidental to, the hearing of the proceeding in relation to the remedy claimed by the applicant under section 170EA of the Act. In support of that submission counsel for the applicant referred to the provisions of O10 r2(b) of the Rules of Court which provide:

"On the directions hearing the Court may:

(a)  ...

(b)  fix a date for trial;

(c)  ... "

That had been done in this case at the directions hearing on 29 August 1994.  Order 30 r7 of the Rules of Court provides:

"7.A date for trial fixed by the Court may be vacated only by order of the Court."

It was argued that having regard to these rules, any application for an adjournment, strictly speaking, should be done by way of motion before the hearing date which had been fixed.  In the absence of any such order vacating the date fixed for hearing, the matter was due to proceed on that date and, therefore, before the application for adjournment was made, the Judicial Registrar must have begun to exercise the power to hear the claim.  In the present case there was no notice of a motion to have the hearing date vacated.  There was an oral application made at the beginning of the hearing of the matter before the Judicial Registrar to have the hearing adjourned.  Any person who is a party to litigation in which a date has been fixed for the hearing of the trial of that litigation always faces a dilemma.  If that person waits until the morning of the trial date and then seeks an adjournment and the application is refused, that person must be in a position to proceed with the hearing of the trial.  The only safe course is to make an earlier application by way of motion to have that hearing date vacated.  If that motion is refused, it may well be an exercise of a power which can be reviewed, in appropriate circumstances, by the Court.  That did not happen here.  What occurred was that on the morning of the hearing of the proceeding for the remedy under the Industrial Relations Act, the application for the adjournment was made and was refused.

In all the circumstances, in my opinion, reliance cannot be had on the exercise of a power conferred by paragraph 466(1)(e) of the Industrial Relations Act. That refers to some different proceeding, for argument's sake, a motion for vacation of a hearing date. Here, the application for the adjournment was merely incidental to the hearing of the application then listed for hearing before the Judicial Registrar. It was in no different position from a case where during the hearing of the application and after some time, some new event comes to light and a party seeks an adjournment in order to answer that new event. In the circumstances, in my opinion, there can be no doubt that that decision to either grant or refuse the adjournment is incidental to the hearing of the proceeding itself. In either case, the order could have been made without having any specific power conferred in the form of paragraph 466(1)(e).

Accordingly, in my opinion, in this case it is not appropriate, and in fact is not correct, to rely upon that provision in s466 to found a review under s377 of the Industrial Relations Act. The only way such a review can be taken is at the completion of the hearing of the matter before the Judicial Registrar. Once a final order has been made, review can be had under s377. There should be no review of every procedural decision made by a Judicial Registrar during the course of hearing a matter.

Finally without deciding the point, in my opinion, it is arguable that here the proceeding had commenced, but that would not prevent a review taking place once a final order is made. This follows even though a respondent may not be present at that hearing. This supports the view that the respondent cannot rely upon the separate exercise of power conferred by paragraph 466(1)(e) to justify a review of the exercise of that power under s377.

Therefore insofar as the motion seeks a review of that exercise of power the motion is refused.

The orders sought in the notice of motion based upon s378 of the Act are withdrawn. In these circumstances there is nothing further before the Court. The formal orders will be:

(1)That the motion for review of the exercise of power to refuse to grant an adjournment insofar as it is based on paragraph 466(1)(e) of the Industrial Relations Act 1988 and section 377 of the Industrial Relations Act is refused;

(2)Otherwise the orders sought in the motion dated 13 September 1994 are withdrawn.

I  certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of The Honourable Mr Justice R.M. Northrop.

Associate:

Date: