Janice Shakley v Australian Croatian Club Ltd
[1996] IRCA 14
•06 February 1996
DECISION NO: 14/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - COSTS - whether a review is a separate proceeding - "proceeding".
Industrial Relations Act 1988 - ss170EA, 170EHA, 347 and 377.
Foxcroft v The Ink Group Pty Ltd (1994) 57 IR 65.
Andrews v Uniting Church in Australia Frontier Services, 19 September 1995, not yet reported, Gray J
Grant v Gunnedah Shire Council (1995) 129 ALR 372
Bailey v Marinoff (1971) 125 CLR 529
Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
No. AI 136R of 1994
JANICE SHACKLEY v AUSTRALIAN CROATIAN CLUB LTD
MOORE J
SYDNEY
6 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. AI 136R of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: JANICE SHACKLEY
Applicant
AND: AUSTRALIAN CROATIAN CLUB LTD
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 6 February 1996
REASONS FOR JUDGMENT
On 6 September 1995 I gave judgment in a review that had been sought by the Australian Croatian Club Ltd ("the Club") under s377 of the Industrial Relations Act 1988 ("the Act"). The review was of the determination by a Judicial Registrar of an application by Ms Janice Shackley under s170EA of the Act. The Judicial Registrar had concluded that the termination of Ms Shackley's employment with the Club was in contravention of provisions of Division 3 of Part VIA of the Act and ordered the Club to pay Ms Shackley $11,500 compensation. In the review I concluded also that the termination contravened provisions of the Act and ordered that compensation in the sum of $12,100 be paid by the Club.
I reserved on the question of costs and the parties have since made submissions on that question. They included lengthy and detailed written submissions by counsel for Ms Shackley. Two issues arise and concern the operation of s347 of the Act which provides:
"347.(1) A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
In subsection (1):
"costs" includes all legal and professional costs and disbursements and expenses of witnesses."
The two issues are whether, for the purposes of s347, the review is a separate proceeding from the proceeding before the Judicial Registrar and, if so, whether the applicant in that separate proceeding, the Club, instituted the proceeding vexatiously or without reasonable cause.
The first issue is a difficult one and is now the subject of two conflicting judgments of Judges of the Court: see Foxcroft v The Ink Group Pty Ltd (1994) 57 IR 65 at 68, Wilcox CJ, and Andrews v Uniting Church in Australia Frontier Services 19 September 1995, not yet reported, Gray J.
When confronted in this matter with the question of whether the review is a separate proceeding my initial view was that it was. That was principally because the orders made by a Judicial Registrar in exercise of delegated powers would finally dispose of a matter unless and until a review was undertaken of the exercise of that delegated power. Further, at least ordinarily, the review would be undertaken as the result of an application being made by a party aggrieved by the Judicial Registrar's determination. A review was, in practice, much the same as an appeal which might be treated as a separate proceeding. It would have followed that a costs order could be made against the applicant for the review if the preconditions imposed by s347 were satisfied.
However having given the matter further consideration and having had the benefit of the reasons for judgment of Gray J in Andrews (supra), I have concluded that the review does not constitute a separate proceeding though my reasons differ slightly from those of Gray J at least in emphasis.
I have comparatively recently considered what is the meaning of the expression "a proceeding" in s347 though in the context of whether a claim brought in the Court's accrued jurisdiction is a proceeding separate from the statutory application in association with which it is brought: see Grout v Gunnedah Shire Council (1995) 129 ALR 372 at 382-384. I draw upon what I said there without repeating it. As I note at 383.9, there are sections in the Act where the words "proceeding" and "proceedings" are plainly used interchangeably. The reference I there make to s220(3)(a) should be to s221(3)(a). It is not material, in my opinion, that s347 speaks of "a proceeding" and s376 and 377 speak of "proceedings".
The term "proceeding" is defined in s360 and the definition is said to be for the purposes of Part XIV which includes sections 376 and 377. The definition provides:
"In this Part, unless the contrary intention appears:
"proceeding" means a proceeding in a court, whether or not between parties, and includes:
a)an incidental proceeding in the course of, or in connection with, a proceeding; and
b)an appeal;
"suit" includes any action or original proceeding between parties."
The definition is prefaced by the words "means" and "includes" which suggest that paragraphs (c) and (b) are intended to give the word an extended meaning: see R v Gray: Ex parte Marsh (1985) 157 CLR 351 at 364. I refer to the definition only to indicate that it does not, in my opinion, assist in determining whether a review is part of the proceeding arising from the original application under s170EA for the purpose of s347. The definition, in terms, does not apply to s347 as that section is not in Part XIV of the Act. The word "proceedings" in ss376 and 377 is a reference to the principal proceeding arising from the making of an application that might be dealt with by a Judicial Registrar in exercise of delegated powers. So much, in my opinion, is apparent from the context. The fact that "proceeding" or "proceedings" might elsewhere have the defined and extended meaning in paragraph (a) or (b) of the definition is, for present purposes, immaterial.
The meaning and scope of the word "proceeding" in s347 in relation to a review is ultimately a question of construction and of central importance are ss 376 and 377 which provide:
"(1)The Rules of the Court may delegate to the Judicial Registrars, either generally or as otherwise provided in the Rules, all or any of the Court's powers in relation to proceedings in the Court, in so far as the proceedings relate to:
(a)a claim for an amount of not more than the amount specified in the Rules; or
(b)a claim that the termination of an employee's employment was unlawful, or that the proposed termination of an employee's employment would be unlawful, whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory.
For the purposes of paragraph (1)(a), the Rules may specify an amount of not more than:
(a)$10,000; or
(b)such greater amount as the regulations prescribe.
Without limiting subsection (1), Rules of Court made because of that subsection:
(a)may delegate to the Judicial Registrars powers that could be delegated to the Registrar of the Court; and
(b)may so delegate powers by reference to powers that have been delegated to the Registrar of the Court under section 466.
A power delegated to the Judicial Registrars is, when exercised by a Judicial Registrar, taken to have been exercised by the Court or a Judge, as the case requires.
The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge.
The provisions of this Act, the regulations and the Rules of Court, and of other laws of the Commonwealth, that relate to the exercise of a power by the Court apply, in relation to an exercise of the power by a Judicial Registrar under a delegation under subsection (1), as if a reference to the Court or a Judge, or to a court exercising jurisdiction under this Act, were a reference to a Judicial Registrar.
As well as the powers delegated under subsection (1), the Judicial Registrars have such other powers as are conferred on them by this Act, the regulations or the Rules of the Court.
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. an application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules.
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.
On the application of a party or of its own motion, the Court may refer to a Full Court of the Court an application under subsection (1)."
The proper construction of s377 depends, in large measure, on constitutional questions: see Association of Professional Engineers, Scientists and Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418.
However s377, when read in conjunction with s376, is drafted in terms that identifies the status of a person who may make application under s377(1) as "a party to proceedings" and the language and structure of s377(1) is such, in my opinion, as to suggest that this is the status of the applicant at the time the application is made. That is, at the time the application is made the person is still a party to proceedings. Moreover the subject matter of the application and what the review will deal with is the exercise "in the proceedings of a power delegated under section 376" (emphasis added). It thus appears that 377 is drafted on the premise that the proceeding in which a Judicial Registrar has exercised delegated powers has a continuing existence which becomes one of substance if a review is undertaken by a Judge either on application or of the Court's own motion. The Act does not limit the time within which a review might be undertaken by a Judge of his or her own motion. The fact that a Judge may undertake a review of his or her own motion notwithstanding that orders have been made and entered disposing of an application is contrary to the general principle that a court has exhausted its jurisdiction in proceedings after orders are made and entered: see Bailey v Marinoff (1971) 125 CLR 529 as to exceptions to this principle: see Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224. That a Judge may undertakes a review of his or her own motion and is not limited as to time in which it can be done indicates that the application and the proceeding it gives rise to has a continuing existence even after orders are made by a Judicial Registrar.
It might be thought that the expression "a party to proceedings" in s377(1) simply identifies a person by reference to a status subsisting till the Judicial Registrar exercised powers and it is no more than a means of identifying who has standing to make an application under s377(1). However such an approach sits, in my opinion, less comfortably with the language, structure and purpose of s376 and 377 than the construction I prefer. As Gray J points out in Andrews (supra) the review is of delegated powers, the effective final exercise of which is undertaken by a Judge.
Indeed s376(1) provides further support for the notion that the review is part of the one proceeding. The powers delegated to a Judicial Registrar are the "Court's powers in relation to proceedings in the Court". As relevant here, they are powers that are delegable "insofar as the proceedings relate to: ... (b) a claim that the termination of an employee's employment was unlawful...": see s376(1). The Court is constituted by the Judges: see s361. It is in proceedings in the Court that the delegated powers are exercised by Judicial Registrars. It is consistent with the terms of s376 to view the claim that a termination was unlawful as giving rise to a proceeding in the Court that is finally concluded when the claim is adjudicated upon by a Judge: see s376(5) or by a delegate of the Court's powers but subject to a review under s377. If a review occurs then the proceeding concludes when the claim is adjudicated upon by a Judge.
To this point I have concentrated on the language of s376 and 377. However that language reflects what, in my view, is the approach, in principle, adopted by Gray J in Andrews (supra). It leads to the same conclusion.
The review forms part of the proceeding arising from the application made under s170EA. Accordingly an order for costs could only be made against Ms Shackley and only then if the application under s170EA had been made vexatiously or without reasonable cause. No order for costs can be made against the Club.
There are, in my opinion, reasonably compelling arguments that an employee in the position of Ms Shackley should not have to bear the burden of legal representation in a review after having succeeded before a Judicial Registrar. This may have been addressed by Parliament by the recent inclusion into the Act of s170EHA introduced by the Industrial Relations and Legislation Amendment Act 1995 though the scope of that section has not yet been considered by the Court. Section 170EHA provides:
"(1)If, in relation to a matter referred to the Court under section 170ED, the Court is satisfied that a party to the proceeding has caused any other party to the proceeding to incur costs because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding following the referral, the Court may order the first-mentioned party to pay all or a part of the costs incurred by that other party."
However s170EHA has no application in this matter and, in the present case, for the reasons I have given, I am precluded by s347 from making any costs order against the Club.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ........ ........ ......
Dated: ..../..../....
APPEARANCES
Counsel for the Applicant: Mr Sheils QC of Scott Sheils & Glover
Counsel for the Respondent: Mr B Collaery of Bernard Collaery & Associates
Dates of Hearing: 10 November 1995
Date of Judgment: 6 February 1996
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