Hiskey v Minister for Employment, Workplace Relations and Small Business

[1999] FCA 1835

FEDERAL COURT OF AUSTRALIA

Hiskey v Minister for Employment, Workplace Relations & Small Business [1999] FCA 1835

ELIZABETH HISKEY v MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS
S 68 of 1999

FINN J
ADELAIDE
15 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 68 OF 1999

BETWEEN:	ELIZABETH HISKEY Applicant
AND:	MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS Respondent
JUDGE:	FINN J
DATE OF ORDER:	15 DECEMBER 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        the application be struck out;

2.the respondent have liberty to apply for an order for costs within three months of the date of these orders;

3.orders 1 and 2 be suspended until the date upon which these reasons become available to the parties at the South Australia District Registry.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 68 OF 1999

BETWEEN:	ELIZABETH HISKEY Applicant
AND:	MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS Respondent

JUDGE:	FINN J
DATE:	15 DECEMBER 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant, Elizabeth Hiskey, has sought a declaration that the declaration required to be made by Form R18 of the Australian Industrial Relations Commission Rules 1998 ("the Rules") is invalid or else the Form itself is invalid. Form R18 is required to be used by a person making application under s 170CE(1) of the Workplace Relations Act 1996 (Cth) ("the Act") on account of termination of employment: see r 37(1)(a)(i) of the Rules. Its operative parts are in the following terms:

   "I declare that no proceedings in respect of the termination that is the subject of this claim have been commenced (other than proceedings that have since been discontinued or failed for want of jurisdiction) by me or on my behalf under any other provision of the Workplace Relations Act 1996 or under any other law of the Commonwealth or of a State or Territory.

   I further declare that all the facts in this application are correct and complete to the best my knowledge and belief."

   For its part, s 170CE(1) provides:

   "170CE          (1)       [Application to deal with termination]  Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

   (a)on the ground that the termination was harsh, unjust or unreasonable;  or

   (b)on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN;  or

   (c)on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a)."

   It will be necessary to refer below to the scheme of Part VIA Division 3 of the Act in which this section is located.

2. The respondent to the application, the Minister for Employment, Workplace Relations and Small Business has brought on a notice of motion seeking that Ms Hiskey's application be struck out under O 20 r 2 of the Federal Court Rules as disclosing no reasonable cause of action, and as being frivolous and vexatious and an abuse of process.  The strike-out procedure laid down in that rule is one in which an order will only be made in a very clear case.  The applicable principle is uncontroversial.  I need only draw attention in this to the well-known decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

3. Ms Hiskey is an unrepresented litigant.  I have in consequence found it necessary both to provide some level of assistance to her as also to attempt to ascertain the legal character of her complaint from the materials she has filed:  on unrepresented litigants see Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445-447.

4. In substance Ms Hiskey's primary claim is to have delegated legislation (ie Form R18 or its declaration) declared invalid. Given the view I take of the claim it is unnecessary to venture upon whether such an application could be maintained under the Administrative Decisions (Judicial Review) Act 1977 (Cth): see Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211; Pearce and Argument, Delegated Legislation in Australia (2^nd Ed), para 26.5. I will for present purposes treat the matter as an attempt to invoke the Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth).

5. The bases of Ms Hiskey's attack on the Form, as best I understand it, are encapsulated in the following three paragraphs of her application:

   "1.That the declaration required in Form R18 … restricts access to justice in the Australian Industrial Relations Commission for applicants seeking relief in respect of termination of employment … ;

   2.That the declaration required in Form R18 … discriminates particularly against academic/intellectual work & workers in respect of legitimate entitlements upon termination of employment, prejudicially;

   3.That the declaration required in Form R18 … fails to provide for copyright/intellectual property issues & other complexities of academic/intellectual work arising upon termination of employment."

6. The burden of the above would seem to be this. As to para 1, the declaration is said to have the effect of precluding a person in Ms Hiskey's position from taking proceedings in another court that relate in some way to the termination. As to para 2, the claim seems to be that the character of University academic employment is in some fashion insufficiently recognised in the s 170CE(1) related procedures of the Act and Form R18 is a manifestation of this. As to para 3, termination of University academic employment can raise other issues (eg as to intellectual property rights) not allowed for by the declaration.

7. I should add that the application seeks as well that "appropriate multiple applications for legitimate legal redress be facilitated" and damages.

8. Ms Hiskey has put on affidavit material in support of her application.  The genesis of her complaint would seem to lie in the termination of her services as an academic lecturer with the University of Adelaide in June of 1994.  For present purposes it is unnecessary for me to inquire into the circumstances of that termination other than (i) to say that a significant period of time has passed since it occurred;  and (ii) to note that where an application is to be brought under s 170CE, it must be brought within 21 days of the date of the termination although s 170CE(8) and r 37(4) allow for an application out of time if it includes a statement of the reasons why it would be unfair for the Commission not to accept the application.

9. The affidavits later filed apparently in response to the present motion do little to illuminate the burden of Ms Hiskey's application. Apart from observing in one affidavit that the nature of academic work is not provided for by the Act, almost all of the matters she raises relate to events subsequent to the termination of which she complains or else they refer to the influence she alleges is exercised by the University of Adelaide within the city of Adelaide and to the alleged perception of her by others as a whistleblower.

10. Taking a benign view of Ms Hiskey's evidence it does appear to advert to some number of possible claims that she may consider she has against others. She refers to a possible tort claim against officers associated with the Australian Industrial Registry in respect of events occurring well after her termination. She seems as well to claim some intellectual property entitlements against her former employer. What is clear is that, assuming she has such claims (ie in tort or for copyright), proceedings to vindicate those claims would be quite unrelated to "proceedings in respect of the termination" of her employment - to use the Form R18 formula to which she objects: on intellectual property in Australian Universities see Monotti, "Allocating the Rights in Intellectual Property in Australian Universities" (1999) 27 Fed L Rev 421.

11. As best I can discern it, Ms Hiskey's objection to the declaration in Form R18 is that by signing it she will thereby be precluded from taking proceedings in other fora to vindicate rights of hers that she perceives to have been affected by or as a result of the termination. As I have indicated above, those rights suggested by her material are quite distinct from and/or are unrelated to the termination.

12. More importantly, though, Ms Hiskey in her objection quite misunderstands the thrust of s 170CE(1) of the Act and, in consequence, of Form R18.

13. The object of Division 3 of the Act is stated in s 170CA(1). It includes:

    "(a)     to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances;  and
    (b)      to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought;  and
    (c)       to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable;  and
    (d)      provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; …"

    The Division in turn is so structured so as to effectuate this object. Insofar as an employee whose employment has been terminated is concerned, a s 170CE(1) application provides the means of access to the regime of conciliation (s 170CF) and otherwise (s 170CFA) that may incidentally lead in certain instances to this Court (s 170CP).

14. What needs to be emphasised is that Division 3 provides only one possible avenue that may be availed of by an employee to vindicate such rights as he or she may have in consequence of the termination. The Act expressly acknowledges this. But it also imposes conditions upon employees who avail of the s 170CE procedure.

15. Section 170HA provides:

    "170HA          Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment."

    Section 170HB in turn provides (insofar as presently relevant):

    "170HB          (1)       [Application must not be made if prior proceedings commenced]  An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the "prior proceedings") for a remedy in respect of that termination have been commenced by or on behalf of that employee:

    (a)       under another provision of this Act;  or
               (b)       under another law of the Commonwealth;  or
               (c)       under a law of a State or Territory;

    alleging that the termination was:

    (d)       harsh, unjust or unreasonable (however described);  or
               (e)       unlawful;

    for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.

    (2)       [Exceptions]    Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:

    (a)       have been discontinued by the party who began the proceedings;  or
               (b)       have failed for want of jurisdiction.

    …

    (4)       [Entitlement to proceed for any other remedy]  If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:

    (a)       is discontinued by the applicant;  or
               (b)       fails for want of jurisdiction."

    Section 170HC is to like effect in relation to s 170CE applications alleging termination in contravention of s 170CK on a ground set out in s 170CK(2).

16. As is apparent on the face of s 170HB and s 170HC there is a clear legislative intent that the regime of the Division is to be an alternative to, and not cumulative upon, such other rights that an employee may possess.  This intent is adverted to directly in paras 7.99 - 7.102 of the Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996.

17. Against the background of the prohibitions contained in s 170HB(1) and (4) (and the like prohibitions in s 170HC(1) and (3)), the very feature of Form R18 objected to by Ms Hiskey is in fact positively imposed by the Act itself, and the Form R18 declaration provides no more than a practical means of alerting the Commission to whether other "prior proceedings" (s 170HB(1)) are on foot so as to preclude the making of a s 170CE application.

18. The terms of the declaration are by no means relevantly unreasonable for judicial review purposes given the requirements of the Act to which I have referred. On the material before me I can discern no possible legally available ground that could suggest that the Form itself constitutes an invalid exercise of the power to make delegated legislation conferred by s 48 of the Act.

19. I should add that Ms Hiskey regrettably has misunderstood the purpose of Division 3 of Part VIA of the Act as also the scope of the prohibitions on bringing other proceedings imposed by s 170HB and s 170HC. What is clear is that particular claims she apparently considers to be related to her termination are not properly so to be regarded (eg the alleged copyright and negligence claims).

20. I will allow the motion.  The application disclosing no reasonable cause of action, I order it be struck out.  I give the respondent liberty to apply for an order for costs within three months of the date of these orders.  I will also suspend these orders until the date upon which these reasons become available to the parties at the South Australia District Registry.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:           23 December 1999

The Applicant appeared in person
Counsel for the Respondent:	Mr P C Walsh
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 1999
Date of Judgment:	15 December 1999