Fonua v Broken Hill Prop Co Ltd

[2000] HCATrans 394

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S94 of 1999

B e t w e e n -

LIUFAU FONUA

Applicant

and

THE BROKEN HILL PROPRIETARY COMPANY LIMITED

First Respondent

JOHN REGINALD HALL

Second Respondent

ALLAN GOLDING

Third Respondent

ALLEN KEMP

Fourth Respondent

TERRENCE COLLITS

Fifth Respondent

LEWIS DOWNEY

Sixth Respondent

PETER WALSH

Seventh Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 12.43 AM

Copyright in the High Court of Australia

__________________

MR L. FONUA appeared in person.

MR N.R. CARSON:  If the Court pleases, I appear for BHP and the other respondents.  (instructed by Blake Dawson Waldron)

GAUDRON J:  Yes, Mr Fonua.

MR FONUA:   Yes, your Honour, the problem with the primary – Justice Bell.  He had some shares in BHP ‑ ‑ ‑

GAUDRON J:   We will deal with the question of what is wrong with the decision of the Court of Appeal because it is that decision that you are appealing against.  This does not seem to have been a matter you raised before that Court.

MR FONUA:   All right.  Your Honour, I was wrongfully dismissed by the respondent, BHP.

GAUDRON J:   Yes, we know that.

KIRBY J:   We know the background, we have read ‑ ‑ ‑

MR FONUA:   You have read the background.  But the Tribunal has no jurisdiction under the Anti-Discrimination Act to tell with wrongful dismissal.  It is a matter for a court to determine because the Tribunal only deal with racial dismissal, or something like that.  But I think now ‑ ‑ ‑

GAUDRON J:   Now, I think you have been to the Industrial Commission as well, Mr Fonua.

MR FONUA:   I had a right to go to the Industrial Commission because the matter before the Anti-Discrimination Board was unsatisfactory and because I wrote a complaint with the Industrial Relations Commission, it was out of time.  So there was no merit review of my case and I like to go on with the Anti-Discrimination Board and the Tribunal.

KIRBY J:   But you took your application, first of all, to the President of the Tribunal, and then he said that he would dismiss them and you were given the opportunity to go to the Tribunal, and you did, and you did so on the basis that your dismissal was based upon discrimination against you on racial and gender basis.  That is correct, is it not?

MR FONUA:   Yes, your Honour.  I asked your Honour to look at the time.  I lodged a complaint that I was dismissed and the President did not do anything for some months.

KIRBY J:   I am not talking about that.  I am talking about why you went to the Tribunal because your complaint was that you were dismissed because of discrimination.  That is why you went, first, to the President, and then to the Tribunal - the President of the Anti-Discrimination Board, and then he said that he thought your complaints had no substance, and then he agreed that you could refer them to the Tribunal, as you did, and it was heard by the Tribunal, and they gave you a very full hearing and they gave very long reasons and they found that there was no substance in your allegation.

MR FONUA:   That is what the President – I think the President entitled to say that but he was wrong.  After a few months ‑ ‑ ‑

KIRBY J:   I know you say that but you have had your chance ‑ ‑ ‑

MR FONUA:   Your Honour, after a few months of my dismissal, the President then made his recommendations that my complaint has no substance.  The period of time – why he not act quickly and tell me that, “Your dismissal was not against the ‑ ‑ ‑

KIRBY J:   I do not know about that, but he might have had lots of other applications before him.

GAUDRON J:   In any event, the question is whether there is error in the decision of the Court of Appeal.  We cannot go investigating the Tribunal’s decision.  You have already once been to this Court on that matter.

MR FONUA:   Your Honour, there is an error of law in the decision of the Court of Appeal.

GAUDRON J:   Yes.

MR FONUA:   Everything is before this honourable Court.  I cannot repeal it.  It is up to this Court to allow me to appeal to a higher court, to appeal ‑ ‑ ‑

GAUDRON J:   No, you have to identify the error in the decision of the Court of Appeal.

MR FONUA:   All right.  The Court of Appeal failed, completely failed to take into account of my suspension by the respondent on 14 July 1993.  The other failure, errors of no one, the applicant was dismissed by the respondent without any warning or inquiry based on the contract of employment under BHP Employee’s Award of 1993, was harsh and wrongful.  The other failure of the Court of Appeal, I was denied natural justice in connection with my suspension and dismissal by the respondents.  The Court of Appeal did not say one word about my claim on that denial natural justice.  The Court of Appeal failed to follow dispute settlement procedure.

GAUDRON J:   No, it is not for the Court of Appeal to follow dispute settlement procedures.  If there was an award entitlement, that was a matter to be dealt with in the Industrial Commission where you had already been.

MR FONUA:   They did not know ‑ ‑ ‑

GAUDRON J:   You were suing on the basis of something else.  If you were suing in the Supreme Court, you would be suing on the basis of something else because those are matters that go to the Industrial Commission, not the Supreme Court.

MR FONUA:   Your Honour, he has some connection with my dismissal.

GAUDRON J:   Well, everything is connected with this and you seem not to have appreciated that once a decision is given against you and there is no appeal allowed from it, you are bound by it.  You have to live with it.  That is what you do not seem to have appreciated.

MR FONUA:   On 27 July 1993, Peter Walsh told Kay Jackson, I was resigned from the Union and because I was not in Union, I was not covered by any Award.

GAUDRON J:   That was a matter for the Commission to determine.

MR FONUA:   Your Honour, I was reject because it was out of time, and that is it.  The only alternative for me to go to the Supreme Court and my appeal to the Supreme Court on that issue was proper, and that is what is wrong with the decision of the appeal court.  John Hall - I know what your conclusion, because you not to appreciate, you come up with the tactic to deny me of my application to appeal because BHP is one of the richest companies in Australia, they have the money.

KIRBY J:   That has nothing to do with the matter at all.

MR FONUA:   Yes, as long as the Court is aware.

KIRBY J:   It has nothing to do with my decision in the matter at all, or the Court’s decision, and it is wrong for you to say that.  We work all the time with cases which concern the most powerful companies and people in this country, and they have rights.

GAUDRON J:   At the same time, we deal with individuals who are powerless.

MR FONUA:   Finally, your Honour, I ask you to take the case I already mentioned in here, the case of Minister for Immigration, a denial of natural justice.  A decision of the High Court of this land that the immigration decision was wrong in that regard.  Denied to allow him natural justice and that is my argue right through the Court of Appeal and they did not take notice.  That is an error of law.  It is up to a higher court, like this honourable Court, to have a look at, not based on some report that you will be already aware and not successful.  After that I was dismissed by BHP, wrongfully, and I am still unemployable. 

There is no work because at my age at the time, 55, if you dismissed, you nothing.  They look and you are bad man.  But that matter has never been rectified by any court.  That is why I ask this honourable Court to allow me a special leave to appeal against that issue because there are heaps of of them.  I have to prove beyond reasonable doubt to the highest Court of this land if they allow me leave to appeal to present my case.  BHP already closed and what happen now?  They still pay few - lots of money to the solicitor to fight their case, and that is it, your Honour.

GAUDRON J:   Yes, thank you, Mr Fonua.  Yes, Mr Carson.  Justice Kirby, I think, has a question of you.

KIRBY J:   Mr Carson, paragraph 9 of the grounds of appeal which were filed from Acting Justice Bell’s decision – this is on page 18 – complains that the appellant was totally denied natural justice in connection with his

suspension and dismissal.  Now, where was that dealt with by the Court of Appeal, because that, I gather, is what the applicant is complaining about?

MR CARSON:   Your Honour, that relates to a claim for conspiracy and if your Honour goes to the judgment of Acting Justice Bell, which is at page ‑ ‑ ‑

GAUDRON J:   Page 12, are we?

MR CARSON:   Page 4, your Honour, I am sorry, yes.  On ‑ ‑ ‑

KIRBY J:   Yes, it looks to be in paragraph (b), “The Plaintiff claims”:

(b)  The Defendants had unfairly dismissed the Plaintiff…..without any inquiry…..unfair and a denial of natural justice.

How did Acting Justice Bell deal with that?

MR CARSON:   What happened was that the appellant withdrew the claims of conspiracy.

GAUDRON J:   I think it starts at page 7, line 50.

KIRBY J:   It says on page 5 at line 30:

He stated that he relies, not on the tort of conspiracy, but on the tort of “wrongful dismissal” – wrongful, because of racial discrimination and breach of contract.

MR CARSON:   There was an express ‑ ‑ ‑

GAUDRON J:   Then you say – did you not say, well, according to the judgment, that any claim in that regard is maintainable, if at all, in the Industrial Relations Commission, because his only right to some other procedure for dismissal was an award right.

MR CARSON:   Yes, your Honour, and that ‑ ‑ ‑

GAUDRON J:   And that there was no contractual provision which would entitle him to rely on that.  That appears at page 8.  His Honour Acting Justice Bell says that “submission would seem to be correct”.

MR CARSON:   Yes, your Honour.  The authorities are stated there.  The Act provides that if, in fact, the plaintiff has taken proceedings in another jurisdiction, which he had an equal opportunity to do, then it cannot come to the Industrial Commission as well and so there was a decision against him in the Industrial Commission on that basis.  I am sorry, your Honour, I read this two days ago and there is a statement by his Honour that the claims in conspiracy were abandoned by the plaintiff.

KIRBY J:   A claim that an employer had dismissed an employee without giving that employee an opportunity to be heard is known to the common law.  There are such cases where employers who do not give employees, especially long term employees, an opportunity to be heard before they are peremptorily dismissed, will be held to be in breach of the implied obligations of the contract of employment.  I understand that in maze and haze of Mr Fonua’s submissions he is trying to get to the point where he is asserting that your client did not accord him what he calls natural justice, but what might by law be categorised as the implied obligation of the contract of employment to give him an opportunity to be heard before he is given peremptory dismissal.

As I understand the facts of this case, there might have been a misunderstanding between the parties.  He refused to obey an order and walked out, and was dismissed for refusing to obey a lawful order, but his refusal, as I understand he contends, was because he thought it was on the basis of his race or gender and not on any other basis.  All I want to know is that the ground that was raised was dealt with by the Court of Appeal.  If it was, then that is it, as far as I am concerned.

MR CARSON:   Yes, your Honour, in the sense that – except it relates to what your Honour is saying, it was caught up in the res judicata point and that the bringing of this action was – the applicant had litigated before the Equal Opportunity Tribunal the question of the circumstances of the termination of his employment and he had lost there.  Justice Bell found that a res judicata applied in favour of BHP which was a party to that proceedings, found that the Equal Opportunity Tribunal was a court for the purpose of res judicata and found against the present applicant on that ground, and that was supported by the Court of Appeal ‑ ‑ ‑

KIRBY J:   Can I just tell you what is troubling me?  What is troubling me is this, that that proceeding dealt with the substantive complaint that he was dismissed because of discrimination on the basis of gender or race.  But he is now, as I understand it, asserting that he had a different claim which is not necessarily legally the same as that claim, which was that he was not – leave aside entirely issues of discrimination – he still was a human being and a worker and a person entitled to contractual rights who was not given a chance before he was dismissed to be ‑ ‑ ‑

GAUDRON J:   But that matter had already, had it not, been the subject of proceedings in the Industrial Relations Commission.

MR CARSON:   And in the Equal Opportunity Tribunal.

GAUDRON J:   And the Industrial Relations Commission said, “No, we cannot deal with your complaint of unfair dismissal, you should deal with that ‑ ‑ ‑

KIRBY J:   In the general courts of law, as I understand it.

GAUDRON J:   No, under the Anti-Discrimination Act.

MR CARSON:   Yes, but the circumstances of that, and the findings of that, were that he had not been unfairly dismissed.  There were some 22 grounds which he alleged he had been unfairly suspended and unfairly dismissed and all of those were found and the judgment of the Equal Opportunity Tribunal is there, and I understand the Court has had the opportunity of reading it.

KIRBY J:   I do not think we have the Equal – we only have the Supreme Court proceeding of Justice Bell and the Court of Appeal.  I do not doubt that it was very difficult for the Court of Appeal to understand all of the issues and without all of the material it is not that easy for us but his complaint before us, as I understand it, is he was asserting a separate and different objection not bound up in the discrimination claim, that he had not been accorded the contractual entitlement to a fair procedure ‑ ‑ ‑

MR CARSON:   I am sorry, your Honour, I have now found the passage that I wanted which is at page 5 of the bundle ‑ ‑ ‑

KIRBY J:   Page 5 of the application book or ‑ ‑ ‑

MR CARSON:   The application bundle, yes, your Honour, which is page 2 of the judgment of Acting Justice Bell:

Two of the “grounds” pleaded –

this is at line 20 –

namely (f) and (g), alleged conspiracy between certain of the individual defendants.  The Plaintiff has withdrawn these two grounds and has asked that they be deleted from his summons.  There being no objection this was done.

KIRBY J:   But if you go to page 4, paragraph (b), which is not (f) and (g), is:

The Defendants had unfairly dismissed the Plaintiff…..without any inquiry were unfair and a denial of natural justice.

Which was not withdrawn.

MR CARSON:   No, your Honour, but the ground of appeal in front of the Court of Appeal, to which your Honour directed me a few minutes ago, alleged the conspiracy, and the conspiracy grounds were all withdrawn before Justice Bell.  That left outstanding (b), which was the dismissal without an “inquiry were unfair and a denial of natural justice”, and in our submission, that was dealt with by the Equal Opportunity Tribunal and was the subject of the res judicata in respect of the first respondent and amounted to an abuse of process in respect of the other respondents.

GAUDRON J:   In any event, a proceeding for wrongful dismissal where there is an award has to be before the Commission, does it not?

MR CARSON:   If the only contract of employment is under the award, yes, your Honour.  But if there was contractual employment outside the award, then the ordinary rights of common law would still ‑ ‑ ‑

GAUDRON J:   Yes, but Mr Fonua was relying on the award provisions, was he not?

MR CARSON:   He did, and the judge held that he could not do so in the common law jurisdiction.

KIRBY J:   Presumably, the award contained provisions relating to unjust dismissal.

MR CARSON:   Presumably, your Honour, yes.

GAUDRON J:   And contained provisions, at least, relating to the procedures for dismissal.

MR CARSON:   Yes, your Honour, and the plaintiff, in effect, under the Industrial Act, has to go to the Industrial Commission, which he did, but he had already gone to the Equal Opportunity Tribunal and the Industrial Arbitration Act says that he cannot do both, he has to elect, and his election was to go to the Equal Opportunity Tribunal.  Now, whether or not he would have been better served in the industrial sphere, we will never know, but the Act just says he cannot do both.

KIRBY J:   And that election is final, is it, under the Industrial Relations Act of New South Wales?

MR CARSON:   Yes, your Honour.

GAUDRON J:   Yes, thank you, Mr Carson.  Yes, Mr Fonua, you may reply to what Mr Carson has said but you are limited to five minutes.

MR FONUA:   Yes, your Honour.  I refer this honourable Court to page 7 of my bundle of documents.

GAUDRON J:   This is the additional documents.

MR FONUA:   Yes, additional documents, yes, your Honour.  Then I will go on to page 10, “Denial of Natural Justice”.  That is my specific claim before the primary judge and before the Court of Appeal.  But they never mentioned in their judgment what happened to that claim.

KIRBY J:   Well, the suggestion is that that is because the place for you to litigate that, by your election, was in the Equal Opportunity Tribunal.  You could have gone to the Industrial Relations Commission and complained about the denial of natural justice and all the other complaints you had of your dismissal, but you elected to go to the Equal Opportunity Tribunal, which heard you in full, and disposed of the matter within the terms of its statute against you.  In that sense, you had forfeited the entitlement, and I am told by Mr Carson who knows these things, that that was an election you were entitled to make and you did make.

MR FONUA:   Your Honour, my claim of dismissal on the basis of race, that is the only thing considered by the Tribunal.  I did not have any choice to go elsewhere ‑ ‑ ‑

KIRBY J:   That may be so, but that might have been a reason for you to have pursued your entitlements before the Industrial Relations Commission, not before the Equal Opportunity Tribunal.  But you, apparently, elected to proceed before the Tribunal instead of the Commission.

MR FONUA:   Under the Anti-Discrimination Act, you have a right to complain to the President and then the Tribunal ‑ ‑ ‑

KIRBY J:   Yes, we know that.

MR FONUA:   - - - if you are dismissed on the basis of race, but because the other respondent did not investigate my complaint, that is why I did not have an opportunity to raise the wrongful dismissal at the Tribunal and the racial tribunal.  Your Honour, I will come to the conclusion.  The application does not meet - the obligation does meet the criteria for a grant of special leave to appeal.  The judgment to which the application involves a question of law.  That is of public interest.  The other point, the interest of

the administration of justice does require consideration by this honourable Court of the judgment to which the application relates, which is the Court of Appeal, and the decision of the Court of Appeal refusing to appeal from a decision of Justice Bell was incorrect and it involves some errors of law.  Nothing further to say, your Honour.

GAUDRON J:   Thank you, Mr Fonua.

We are of the view that the proposed appeal in this matter enjoys no prospect of success.  Accordingly, the special leave application must be refused and the parties having had an opportunity to deal with the matter in writing, it is refused with costs.  The Court will now adjourn, thank you.

AT 1.07 PM THE MATTER WAS CONCLUDED