Johnson v Halsmoree Pty Ltd and Robinson and George v Halsmoree Pty Ltd and Robinson

[1995] IRCA 73

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
DARWIN REGISTRY

NO.DI 104/94 ANNETTE LOUISE JOHNSON V HALSMOREE PTY & PATRICIA JEAN ROBINSON AND

NO. DI 105/94 BRYANT GEORGE V HALSMOREE PTY LTD & PATRICIA JEAN ROBINSON

REASONS FOR DECISION

The respondents in proceedings No. DI 104/94 (Annette Louise Johnson v Halsmoree Pty Ltd & Patricia Jean Robinson) filed a notice of motion on the 23 January 1995 seeking an order to have that action heard at the same time as No. DI 105/94 (Bryant George v Halsmoree Pty Ltd & Patricia Jean Robinson), alternatively, to have action No. DI 104/94 tried immediately after No DI 105/94.  The two actions involve different applicants but the respondents are the same in each action.  The applicants, (Patricia Johnson and Bryant George) oppose the orders sought in the notice of motion. Both applicants allege breaches of PART VIA, Division 3 of the Australian Industrial Relations Act (1988).

During the course of argument it became necessary to canvass a number of issues concerning how the parties were proposing to conduct the trials. Mr Clift, counsel for both respondents, indicated that the would be objecting to a Judicial Registrar hearing the trials. The outcome of such an objection has certain practical consequences for listing cases for trial in this registry and may be a factor influencing the Court’s decision on how the matters should proceed. Mr Clift argued that the monetary amount being claimed by both applicants exceeded the monetary limits for matters which may be heard by the Court when the proceedings are heard by a Judicial Registrar. In the case of the applicant Patricia Robinson, the original application claimed $330, 000 compensation consequent upon alleged breaches of SS 170EA, 170DE, 170EE and 170DB Industrial Relations Act.  In the case of the applicant Bryant George, $585,000 compensation was sought alleging breaches of the same sections.  It should be noted that the applications in both cases were filed before the statutory limits were imposed on the amount of compensation which could be claimed: (S 170EE, which commenced on 30 June 1994).

I sought argument from counsel on the extent of powers of Court delegated to Judicial Registrars and also on the question of whether or not the applicants in this case were affected by the statutory limits as set out in S 170EE. At the later hearing of the notice of motion, Mr Spazzapan (for both applicants) stated to the Court that his clients were bound by the formula for the calculation of compensation as set out in S 170EE(3)&(4) and that their claims were bound by the formula for the calculation of compensation as set out in S 170EE(3) & (4) and that their claims would be amended accordingly. It has become unnecessary to rule on that point, however I note that by virtue of S 170EE(8), the section in a sense operated retrospectively. For the purpose of S 170EE, “termination of employment” means “ a termination that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application under S 170EA was made to the Court before that commencement if the court pronounced final judgment in respect of the application before that commencement”. This same definition is incorporated in other parts of Division 3. No final judgment has been pronounced in this case and consequently the Court has been advised that the claims will be amended.

Mr Clift still objects to a Judicial Registrar hearing the matters as he says that in no case can a Judicial Registrar hear a claim which is over $10,000. The applicant’s proposed amended claim will still exceed $10,000. He relies upon S 376:

“SECTION 376 POWERS OF JUDICIAL REGISTRARS

376(1) The rules of Court may delegate to the Judicial Registrars, either generally or as other wise 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 employer’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.

376(2) 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.”

In their present form, the Industrial Relations Court Rules mirror S 376: (Order 72, rule 2).

Mr Clift argued that a claim of $10,000 is the limit of powers delegated to Judicial Registrars. He argues this is so even when the claim concerns the unlawful termination of employment. His case is that S 376(1)(b) is directed only to declaratory and similar relief concerning unlawful dismissal. Mr Spazzapan argues that the Judicial Registrars’ powers are not limited in such a way and that the monetary limitation imposed by S 376(2)(a) relates only to claims other than unlawful terminations.

I agree with Mr Spazzapan on this point. A plain reading of S 376(1)(a) and (b) indicates that (a) and (b) are alternatives. Read in context, S 376 (1)(a) and S 376(2)(a) relate to claims other than those concerning unlawful dismissal. In relation to claims concerning unlawful dismissal, S 376(1) makes it clear that Judicial Registrars have been delegated the powers of the Court. The powers of the Court in such cases involve the granting of remedies as set out in S170EE which include awards of compensation. It would be bordering on the absurd if the remedies associated with claims for unlawful dismissal were to be separated in the way suggested by the respondents. That would mean that in some cases Judicial Registrars could head the trial of the issues, decline to award reinstatement but be prevented from assessing compensation in the alternatives if the claim exceeded $10,000. The interpretation urged by Mr Clift would render S 376 inconsistent with the scheme of Part VIA Div 3. Additionally, awards of compensation over $10, 000 for unlawful dismissal are regularly made by Judicial Registrars in all registries of this Court. The interpretation adopted here is consistent with the national approach.

The respondents in action DI 105/94 have included a cross claim against the applicant Bryant George in their answering documents. Neither counsel consider that the cross claim (which is based purely in the law of contract and concerns loss suffered as a result of the applicant’s alleged failure to give appropriate notice), should prevent a Judicial Registrar from hearing the trial. I disagree The powers of the Court delegated to Judicial Registrars in S 376(1) are “all or any of the Court’s powers in relation to proceedings in the Court, in so far as the proceedings relate to .......(a).....(b)....”. The powers delegated to Judicial Registrars are tied to the powers of Court which are specified in the relevant parts of the Industrial Relations Act1988. Section 376 specifically refers to the “powers” of Court rather than to the “jurisdiction” of the Court. The cross-claim, which Mr Clift has confirmed will be pursued in the trial, is not for any ground of relief expressly provided for in the Industrial Relations Act (1988).

A number of commentators treat issues of jurisdiction concerning the Industrial Relations Court of Australia in the same way as jurisdictional issues have been dealt with by the Federal Court: (“Australian Labour Law Reporter, CCH 4-675 - 4-685; Creighton & Stewart, Labour Law, An Introduction, the Federation Press, 1994, 87-88).  A number of authorities indicate the Federal Court possesses not only jurisdiction over the subject matter expressly within its statutory mandate, but in some circumstances has jurisdiction over matters which have arisen in conjunction with those matters expressly provided for.  First, the Federal Court has jurisdiction over matters of federal jurisdiction associated with a primary claim expressly within jurisdiction: (Phillip Morris Inc. V Adam Brown male Fashions Pty Ltd (1981) 55 ALJR 120): secondly the federal court may have accrued jurisdiction in matters of state law or common law: (Adamson v West Perth Football Court (1979) 27 ALR 475: Gregory v Phillip Morris Ltd (1988) 80 ALR 455: Byrne v Australian Airlines Ltd (1994) 120 ALR 274) and thirdly, the Federal Court possesses jurisdiction in other matters by virtue of the cross-vesting legislation: (Jurisdiction of Courts (Cross-Vesting) Act 1987: West Australian Psychiatric Nurses Association Airlines Ltd (1994) 120 ALR 274). Assuming the theory of accrued jurisdiction is applied in the same way in the Industrial Court of Australia, the cross-claim, for the sake of argument, may be within the jurisdiction of the Industrial Relations Court, if there is a common sub-stratum of facts between the cross-claim and the application: (Kennedy v Australasian Coal & Shale Employers (1983) 50 ALR 735: Fencott v Muller (1983) 152 CLR 570: Hughes v Western Australian Cricket Association (1986) 69 ALR 660). Further, the Industrial Relations Court of Australia should as far as possible, determine all matters in controversy between the parties: Industrial Relations Act S 418.  I note Mr Spazzapan for the applicants has foreshadowed raising an argument at trial that the particular type of cross-claim cannot be brought in any case under the rules: (Industrial Relations Court Rules: Order 5, rule 1).

Even if the cross-claim is correctly brought in this Court, it still does not mean that Judicial Registrars have been delegated the power to deal with claims and cross-claims in matters which can only come before the Court by virtue of the Court’s accrued jurisdiction. It would be otherwise if S 376 Industrial Relations Act (1988) were more specific on this point and included matters within the Court’s “jurisdiction”, whether or not that jurisdiction is acquired expressly or pursuant to one of the relevant theories of accrued jurisdiction which is accepted in the Federal Court. it would also be clearer if S 37691)(a) related to cross-claims and associated relief. It does not. This leads me to the conclusion that a Judicial Registrar cannot hear and determine matter DI 105/94 Bryant George v Halsmoree and Robinson. If I am wrong on this point, then I consider in any case, that it is inappropriate for me to hear to determine the matter given the variety of jurisdictional issues which may require authoritative ruling. Pursuant to S 378(1)(b) Industrial Relations Act I propose to make appropriate arrangements for the Court to hear the application.

In relation to the notice of motion to have the two matters tried together, I note that ordinarily a Judicial Register would deal with action D104//94 (“Johnson v Halsmoree”).  Having heard extensive argument concerning whether or not the matters should be tried at the same time, I have reached the conclusion that they should be.  There are common factors between the two actions.  The place of employment is the same in the two actions, the respondents are the same in the two actions, the relief for which the applicants apply is substantially the same.  The alleged dismissals occurred at the same time.   The periods of employment were the same.  To a degree, the relief sought by the applicant Johnson is dependent upon the establishment of facts in the applicant’s case in D105/94(“George v Halsmoree”).  The witnesses will be substantially the same, save for some witnesses called exclusively in Johnson v Halsmoree to establish the employment relationship (which in that particular action is disputed).

Both applicants now reside in Perth and will need to travel to Darwin for trial. Even if Mrs Johnson is not called in Mr Bryant’s case, Mr Spazzapan has indicated that Mr Bryant will need to be called for the applicant Johnson to establish her case.  The respondents and the witnesses for both sides reside in Katherine and will need to travel to Darwin.  Mr Clift also raises the fact that the applicants are in a de-facto relationship.  I have not considered this to be a relevant factor in this decision as nothing relevant to the action can be assumed from that point.

In opposing the orders sought in the notice of motion, Mr Spazzapan has pointed out that the issues raised in the respective defences are different in the two causes of action.  That is a factor I have considered but it is not determinative in this matter.  In Johnson v Halsmoree the respondents deny an employment relationship, in George v Halsmoree the respondents claim the applicant was not dismissed.  Those two issues can, it seems, be dealt with in the one trial.  Mr Spazzapan also said that the issues of fact to be determined in George v Halsmoree are so crucial to the matter of the applicant’s case in Johnson v Halsmoree that those factual issues, once determined, might be considered res judicato.  I am not certain that would be the case, however it may be undesirable for that reason to have separate hearings.  Mr Spazzapan had considered the issue of res judicata would assist in the settlement of Johnson v Halsmoree if that action could lie until after George v Halsmoree.

Mr Spazzapan argued that the applicant Johnson has her own separate rights to enforce and notwithstanding the commonality of factors between the two actions, she is entitled to her own hearing.  I fully recognise that the applicant Johnson has her own separate rights to enforce along with particular facts to establish which  are not all contingent upon the resolution of issues in George v Halsmoree.  However, I did indicate to Mr Spazzapan that if I decided it was appropriate for me to hear George v Halsmoree I would be inclined to list Johnson v Halsmoree as soon as possible for its own hearing.  Mr Spazzapan disagreed with this approach, indicating either a preference for the Johnson action to follow the George action or for the two matters to be consolidated in some way.

Mr Spazzapan had also raised the concern that in hearing both matters together, the credibility of the two applicants may adversely affect the case of the other.  I do not consider that to be a factor militating against hearing the two matters together.  The fact Mr Spazzapan acts as solicitor for both applicants is a factor I can take into account as favouring the joint hearing, although he has informed the Court that a barrister will conduct the case for one applicant and that eh (Mr Spazzapan) will most probably represent the other.  I note there may be some difficulties with representation of the applicants given the nature of the retainer to a barrister which Mr Spazzapan has described.  That issue cannot however sway the decision given the other factors militating in favour of a joint hearing.  I do urge the parties and their representatives to refine the issues as much as possible before trial to lessen some of the cost burdens which may occur in lengthy trials.

All parties have been concerned about costs.  Mr Clift points out that his clients would have to fund two separate actions with substantially the same witnesses if the matters were not heard together.  Mr Spazzapan says that his firm is funding the actions of the applicants and that while one joint hearing would be cheaper to fund than two separate actions, once the issues in George v Halsmoree have been resolved, Johnson v Halsmoree may settle, being a cost advantage to all parties.  At this stage of proceedings, such an optimistic outcome is speculative.  The actions have been filed for almost one year and settlement has not been achieved.  I cannot risk having Johnson v Halsmoree lie until the outcome of George v Halsmoree given the length of time both matters have been unresolved.

Initially I was against granting the orders sought in the notice of motion because George v Halsmoree had been given a trial date and it would not have been possible to hear the two matters together in that time which was set aside for the trial.  Both counsel however indicated to me that the George v Halsmoree case by itself would not be completed in the time allocated.  Further, it appears it was initially set down with a view to a Judicial Registrar hearing the matter. When the various jurisdictional issues were indicated by counsel, I vacated the original hearing date of George v Halsmoree as there was a real risk that the parties and various witnesses would travel to Darwin and not be able to commence the trial.  Even though the notice of motion was filed so close to the trial date as to involve practical difficulties, Mr Spazzapan properly advised the Court that he had asked the respondent to refrain from filing any such application at an earlier date due to Mr Spazzapan’s absence from Darwin.  In those circumstances it is not appropriate to decline the application on account of its poor timing.

Hearing the two matters at the same time appears to be a more expedient way of dealing with these actions which have a substantial history.  Too much time has passed in respect of both actions to adopt a “wait and see approach” with the second matter.  Taking all the arguments into account, I propose to order that the two matters be tried at the same time pursuant to Order 29, rule 5 Industrial Relations Court Rules.

I am advised that a Judge of the Court is available to hear these actions commencing the 22nd May 1995.  The full week has been set aside for the trial and if necessary the time allocated can be extended.  The trial must proceed at this time until it is completed.

ORDERS AS FOLLOWS:

(1)ACTIONS NO DI 104 OF 1994 AND DI 105 OF 1995, JOHNSON AND GEORGE V HALSMOREE AND ROBINSON BE TRIED AT THE SAME TIME.

(2) BOTH ACTIONS ARE SET DOWN FOR TRIAL COMMENCING THE 22 MAY 1995 FOR 5 (FIVE) DAYS OR SUCH FURTHER TIME AS THE COURT AT TRIAL DIRECTS.

Hearing Dates of Notice of Motion: 8, 16 February 1995.
Decision on Notice of Motion: 6 March 1995.

I certify that this page and the preceding eight (8) pages are a true copy of the Reasons for Decision of Judicial Registrar Blokland given 6 March 1995.

Judicial Registrar Jenny Blockland: