Hargreaves v National Safety Council of Australia

[1995] IRCA 597

CATCHWORDS

INDUSTRIAL LAW - PRACTICE AND PROCEDURE - application for SUMMARY DISMISSAL - principles to be applied

Industrial Relations Act 1988 ss 170CD, 170EA
Trade Practices Act s52

Webster and another v Lampard (1993) 177 CLR 598, 602-603

Ian Anderson and Geraldine Anderson v Commonwealth Bank of Australia, Federal Court of Australia NG559 of 1993, Lindgren J, 29 September 1995, as yet unreported, p.15

Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Western Australian Speciality Alloys Pty Ltd, Industrial Relations Court of Australia, No WI550 of 1994, Madgwick J, 12 October 1995, as yet unreported, p.9

Jupp v Computer Power Group Limited and another (1994) 1 IRCR 296

No. VI 2870 of 1995

HARGREAVES v NATIONAL SAFETY COUNCIL OF AUSTRALIA

Marshall J
Melbourne
1 November 1995

IN THE INDUSTRIAL RELATIONS )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY               )   No. VI 2870 of 1995

BETWEEN:  HARGREAVES

Applicant

AND:                NATIONAL SAFETY COUNCIL
  OF AUSTRALIA
  Respondent

JUDGE:          Marshall J

PLACE:          Melbourne

DATE:            1 November 1995

ORDER

THE COURT ORDERS THAT:

1.The respondent’s motion brought by notice of motion filed on 23 August 1995 be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS            )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY               )  No. VI 2870 of 1995                  

BETWEEN:  HARGREAVES                  
  Applicant

AND:                NATIONAL SAFETY COUNCIL
  OF AUSTRALIA      
  Respondent

JUDGE:          Marshall J

PLACE:          Melbourne

DATE:            1 November 1995

EX-TEMPORE REASONS FOR JUDGMENT
AND REVISED FROM TRANSCRIPT

By notice of motion dated 23 August 1995 the Respondent moved the Court for orders, including an order that the application made by the applicant pursuant to s170EA of the Industrial Relations Act 1988 (“the Act”) be dismissed.

The first basis for the motion for summary dismissal of the proceedings was that the “relevant wages” of the applicant exceeded the applicable amount provided for in s170CD(2) of the Act. Having regard to the fact that in my view there is a real issue to be tried as to whether certain elements of the salary package of the applicant were capable of being part of his “relevant wages” for the purposes of section 170CD(2) of the Act, I find that the matter should not be summarily dismissed.

I do so having regard to the principles referred to in Webster and another v Lampard (1993) 177 CLR 598, 602-603 in the joint judgment of Mason CJ and Deane and Dawson JJ, where their Honours said:

“It is important to note at the outset that the issue before the learned Master on the application for summary judgment was not whether Mr. and Mrs. Webster would probably succeed in their action against Sergeant Lampard.  It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail.  The power to order summary judgment must be exercised with ‘exceptional caution’ [General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, at p. 129] and ‘should never be exercised unless it is clear that there is no real question to be tried’ [Fancourt v. Mercantile Credits Ltd. (1983) 154 CLR 87, at p. 99]. As Dixon J commented in Dey v Victorian Railways Commissioners [(1949) 78 CLR 62, at p. 91]:

‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.  The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.  In such a case it is essential that: ‘...great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed Tribunal.’ [General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR, at p. 130; see also, Church of Scientology Inc. v. Woodward (1982) 154 CLR 25, at p. 31]

I agree, with respect, with the following approach set out in the recent decision of Lindgren J in Ian Anderson and Geraldine Anderson v Commonwealth Bank of Australia, Federal Court of Australia, NG559 of 1993, 29 September 1995, as yet unreported, where his Honour said, at 15:

“The motion is for summary dismissal and so it must be very clear in the face of judicial caution that there is no issue deserving of a hearing.”

I refer additionally to the recent decision of Madgwick J in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Western Australian Speciality Alloys Pty Ltd, Industrial Relations Court of Australia, No WI 550 of 1994, 12 October 1995, as yet unreported, where his Honour said, at 9:

“As Speciality submitted, the principles to be applied by a court in an application to strike out a claim either for lack of jurisdiction or upon the basis that the claim discloses no reasonable cause of action are well travelled and not really in doubt.  As Dixon J, as he then was, said in Dey -v- Victorian Railways Commissioners 78 CLR 62, 91

‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court. ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then, it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’

“Barwick CJ spoke to like effect in General Steel Industries Inc. -v- Commissioner for Railways NSW 112 CLR, 125, 129 - 130. His Honour said that, at times, the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the Statement of Claim, even if proved, cannot succeed; or ‘...that it is a case that does not admit of reasonable argument ...so to speak, apparent at a glance’.

For myself, I am happy to adopt a test which is as high as that, as indeed I understand was Barwick CJ.  At page 130 he said:

‘... in my opinion great care must be exercised to ensure under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.’

Also, as the Union submits,

‘A court at first instance should be particularly astute not to risk stifling the development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie.  The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real.  One cannot predict with firm assurance what the future holds as a final formulation of the new development.’: HCF v Hunt 1982, 44 ALR 365, 373 - 4.

The second point to be noticed however is the other one made by Barwick CJ, loc. cit:

‘On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim.  Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possible (sic) succeed.’.”

I draw particular comfort in the instant circumstances from the citation by Madgwick J of the passage from HCF v Hunt, particularly in the circumstances of the Court being an embryonic Court dealing with embryonic legislation.

That second basis for the notice of motion concerned the issue as to whether the application was out of time, having regard to s170EA(3) of the Act.

Whilst the submissions of the respondent on this issue are not without force, it is not clear to me that the applicant’s submissions regarding the requirement for written notice in advance of the termination, before the time limit applies, are necessarily bound to fail, in the sense described in Webster v Lampard.  I cannot at this stage, in good conscience, dismiss the application on that basis.

The third basis for the notice of motion was of a limited nature.  It sought to strike out the applicant's claim under s52 Trade Practices Act (1974) Cth.  It was conceded by the applicant that his claim in this respect could not succeed having regard to the decision of this Court in Jupp v Computer Power Group Limited and another (1994) 1 IRCR 296. That part of the application will be withdrawn and the applicant will accordingly amend his application. I now propose to hear submissions on the question of further directions that the Court should make for the progressing of the matter.

ORDER:

The order of the Court will be:

1.The respondent’s motion brought by notice of motion filed on 23 August 1995 be dismissed.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  1 November 1995

Counsel for the Applicant:  Mr B.D. Lawrence

Solicitor for the Applicant:  Holding Redlich

Counsel for the Respondent:  Mr P.J. Ginnane

Solicitor for the Respondent:  Arthur Robinson and Hedderwicks

Date of hearing:  1 November 1995

Date of judgment:  1 November 1995