Giancaspro v SHRM (Australia) Pty Ltd

Case [2005] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

GIANCASPRO v SHRM (AUSTRALIA) PTY LTD

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)

8 September 2005

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS

Application from lay advocate seeking leave to appear for the appellant - Factors relevant to exercise of court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant - Power of court to regulate proceedings - Leave refused - Lay advocate allowed to assist unrepresented appellant in the presentation of appeal.

Legal Practitioners Act 1981 (SA) s 21, s 51; Supreme Court Rules r 32, r 33, referred to.
Damjanovic v Maley (2002) 195 ALR 256; O'Toole v Scott [1965] AC 939, applied.
Galladin Pty Ltd v Aimworth Pty Ltd (1993) 60 SASR 145, distinguished.

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - OTHER MATTERS

PROCEDURAL FAIRNESS

Appeal against decision of Full Court of the Industrial Relations Court - Claim against employer for unpaid annual leave entitlements and locality allowance - Magistrate did not determine principal factual issue of whether appellant had resigned from employment in 1990 - Magistrate's decision based on a different issue not raised by appellant and no submissions heard - Point not raised on appeal to single Judge - Single Judge made further findings upon which parties had no opportunity to lead evidence - Full Court made further finding on an issue not previously argued at trial or on appeal - Appellant represented by lay advocate at all stages - Whether Magistrate and appeal courts failed to afford procedural fairness to appellant - Findings based on factual issues on which no evidence led - Denial of procedural fairness at every level in Industrial Relations Court - Whether failure properly to consider ability to extend period of limitation - Consideration of issues relevant to frustration of contract of employment - Decision of the Full Court of the Industrial Relations Court set aside and matter remitted to that court for further consideration - Appeal allowed.

Industrial and Employee Relations Act 1994 s 154, s 167 (now Fair Work Act 1994); Workers Rehabilitation and Compensation Act 1986 s 58b(3) (now s 58C); Long Service Leave Act 1987 s 6(1), s 6(2); Limitation of Actions Act 1936 s 167(1), referred to.
Finch v Sayers [1976] 2 NSWLR 540, discussed.
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Kohn v Apcel Pty Ltd (1989) 56 SAIR 45; Cachia v State Authorities Superannuation Board (1993) 47 IR 254; Craig v Workers Compensation Tribunal (2004) 90 SASR 490; Jones v National Coal Board [1957] 2 QB 55; Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR…

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AGLC
Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340
Case
[2005] SASC 340
Decision Date

CaseChat Overview and Summary

The appeal in Giancaspro v SHRM (Australia) Pty Ltd concerns the dismissal of an employee's claim for unpaid annual leave, long service leave, and other allowances by the Full Court of the Industrial Relations Court of South Australia. The appellant, Giancaspro, had made a claim for these entitlements, which he alleged were owed to him during his employment from 1987 to 2002. The dispute centres on the validity of the termination of his employment and the application of the doctrine of frustration of contract. The Full Industrial Court dismissed Giancaspro's appeal, concluding that the employment contract had been frustrated due to his prolonged absence and unfitness for work.

The legal issues before the court were whether the Full Industrial Court's failure to afford the parties natural justice required the appeal to be allowed and the matter to be remitted, or whether this failure made no difference to its decision. Additionally, there was a question regarding the power of the Industrial Relations Court to extend the time within which an application could be brought, which was not granted leave to appeal. The court was also required to consider whether the Full Industrial Court had correctly applied the doctrine of frustration to terminate the employment contract.

The court held that the Full Industrial Court's failure to afford natural justice did not require the appeal to be allowed and the matter to be remitted. The court found that the Full Industrial Court's conclusion on the frustration of the contract was correct, despite the lack of prior notice to the parties. The court further noted that the issue of extending the time to bring an application was not considered because leave to appeal had not been granted. The court allowed the appeal and remitted the matter to the Full Court of the Industrial Relations Court for further consideration, observing that further factual findings might be necessary if other issues are to be pursued. The court urged the appellant to reconsider his decision not to engage a lawyer, as a lawyer with experience in employment law would greatly assist both the appellant and the court.

The final orders of the court were that the appeal should be allowed, and the matter should be remitted to the Full Court of the Industrial Relations Court for further determination. The court made no order as to the costs of the appeal, noting that Giancaspro's inaction had contributed to the prolongation of the matter.

Orders

Orders of the court

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Background

Background to the litigation

Although these were the grounds upon which this Court would consider the appeal, it became apparent at the hearing of the appeal that there was a fundamental problem with the process followed by the Full Industrial Court. The respondent accepted that such a problem existed. Accordingly, as will become apparent below, it became unnecessary for this Court to consider the grounds of appeal as framed in the notice of appeal.Background On 13 January 2003, the appellant made a claim for unpaid annual leave, long service leave and other allowances in the Industrial Relations Court. During the period from 1987 to 2002, the period of time in respect of which he claimed these entitlements, the appellant had received compensation payments pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA). An Industrial Magistrate found that the appellant’s employment had come to an end in March 1991. The employer had provided a separation certificate after a conversation in which the employer alleged that the appellant had resigned. The appellant did not challenge the existence of such a conversation but denied any suggestion of resignation. The magistrate held that the separation certificate brought the contract of employment to an end, without making a finding as to the alleged resignation. The appellant appealed the magistrate’s decision to a single judge of the Industrial Relations Court, which found that the termination of employment was unlawful having regard to the provision of section 58B(3) of the Workers Rehabilitation and Compensation Act. However, notwithstanding the conclusion of unlawfulness, the Court held that the termination of the employment relationship was effectual. The appellant then appealed this decision to the Full Industrial Court. On 10 September 2004, the Full Industrial Court dismissed the appeal. The Full Industrial Court found that the issuing of the separation certificate by the employer was not sufficient to support the finding that the contract of employment had been terminated. However, the Court further held that, as the appellant had not presented himself for work since 6 February 1990, and had been unfit for work since that time, the contract of employment was frustrated. The Full Industrial Court concluded:[O]n the facts in this case, the inescapable conclusion is that by 13 January 1997, the claimant’s contract of employment … had come to an end … The Full Industrial Court reached this conclusion despite the fact that neither party pleaded frustration, nor raised frustration in argument, nor made frustration the subject of any submission at any stage, either at trial or on appeal. The parties were not on notice that the Full Industrial Court would consider the question of frustration, let alone on notice that it may be determinative of the appeal.The Appeal On the hearing of the appeal, the primary question debated was whether the Full Industrial Court’s failure to afford the parties natural justice required that the appeal be allowed and the matter be remitted to the Full Industrial Court, or whether the failure made no difference to its decision, leaving no reason to interfere with the decision.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Thus far, the Industrial Relations Court, at every level, has determined that the Court has no power to extend the time within which the application may be brought. Upon a proper consideration of the factual issues which have been or which may be raised, the Court may well conclude, for one reason or another, that the contract of employment was terminated before 13 January 1997. If the Court’s conclusion as to its inability to extend time is correct, that may well defeat the appellant’s claim. One of the grounds of appeal to this Court for which leave to appeal was not granted concerned the power of the Court to extend the time within which an application could be brought. As leave was not granted, this question has not been considered by this Court, although had it been necessary to do so, I would have been inclined to extend the leave to appeal to enable that point to be argued. There is a question as to whether s 167(2) of the Act, in referring to “this” power is referring to the power to extend a limitation of time conferred by s 167(1), or whether it also refers to the power conferred by s 48 of the Limitation of Actions Act. It also seems that the Industrial Relations Court’s attention was not drawn to an earlier decision of the Full Court of the Industrial Court in R v Prince Alfred College[22] which might require the point to be decided differently. That decision also seems not to have been drawn to the attention of the single Judge who decided the case of Kohn v Apcel Pty Ltd[23], being the decision on which the single Judge of the Industrial Relations Court in this case relied. As we have not heard argument on the point it is not appropriate to decide it. However, as the matter must be remitted to the Industrial Relations Court, the question of the Court’s power to extend time may well need to be reconsidered by that Court.[22] (1979) 46 SAIR 771.[23] (1989) 56 SAIR 45.Conclusion In my opinion the appeal should be allowed and the matter remitted to the Full Court of the Industrial Relations Court. It will be for that Court to determine whether it decides the issues for itself or remits it to a Judge or an Industrial Magistrate for determination. I would merely observe that, if issues other than the appellant’s alleged resignation are to be pursued, it appears fairly clear that further factual findings will be necessary. To some extent the appellant, by not responding appropriately to the problems as they have arisen, has allowed this unfortunate situation to develop for longer than it should. For that reason I would make no order as to the costs of the appeal. I would strongly urge the appellant, before the matter resumes in the Industrial Relations Court, to reconsider his decision not to engage a lawyer. This case presents a number of complex legal issues. The appellant and the Court would be greatly assisted by a lawyer with some experience in employment law.GRAY J: This is an appeal against a decision of the Full Court of the Industrial Relations Court of South Australia (“Full Industrial Court”) pursuant to section 191 of the Industrial and Employee Relations Act 1994 (SA).

Ratio Decidendi

Legal Principle Established

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