Kenna v I.A.E IndustriesPpty Limited

[1996] IRCA 289

DECISION NO:   289/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - COURT -JURISDICTION - ACCRUED JURISDICTION - JUDICIAL REGISTRAR

Industrial Relations Act 1988: Ss. 170EA 179 376 378(1)
Industrial Relations Court Rules:  Order 74 Rule 2

Coulson v. Thomas Cook Limited, unreported, Judgment 66/1996, 5 March 1996

JOHN KENNA  V  I.A.E. INDUSTRIES PTY LIMITED (A.C.N. 005 101 075)
JEAN KENNA V  I.A.E. INDUSTRIES PTY LIMITED (A.C.N. 005 101 075)

No.     NI      4992 of 1996  and
           NI      4993 of 1996

CORAM:     LINKENBAGH JR
PLACE:       SYDNEY
DATE:          2 JULY   1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 4992 of 1995

BETWEEN:

John KENNA
Applicant

AND

I.A.E. INDUSTRIES PTY LIMITED (A.C.N. 005 101 075)
Respondent

CORAM:     Judicial Registrar Linkenbagh
PLACE:       Sydney
DATE:          24 June 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The matter is to be heard together with  NI95/4993 of 1995.

2. In respect of the subpoena to Insolvency Trustee Services Australia I         grant leave to both parties to inspect the documents produced.

3. In respect of the subpoena to the Principal Registrar of the Licensing          Court of New South Wales I note that there is no response to that      subpoena. 

4. The name of the respondent is amended by consent to I.A.E. Industries      Pty Limited (A.C.N.005 101 075)

5. I direct that pursuant to the provisions of Section 378(1) of the Act I shall make arrangements for the Court to hear this application.

6. I direct the Registrar to notify the parties of the arrangements made pursuant to Order 5. 

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
NEW SOUTH WALES DISTRICT REGISTRY

NI 4993 of 1995

BETWEEN:

Jean KENNA
Applicant

AND

I.A.E. INDUSTRIES PTY LIMITED (A.C.N. 005 101 075)
Respondent

CORAM:     Judicial Registrar Linkenbagh
PLACE:       Sydney
DATE:          24 June 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. That the matter is to be heard  with NI95/4992.

2. That the name of the respondent be amended by consent to I.A.E.     Industries Pty Limited (A.C.N. 005 101 075).

3. I direct that pursuant to the provisions of Section 378(1) of the Act I shall make arrangements for the Court to hear this application.

4. I direct the Registrar to notify the parties of the arrangements made pursuant to paragraph 3.

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
NEW SOUTH WALES DISTRICT REGISTRY

NI 4992 and 4993 of 1995

BETWEEN:

John KENNA
Jean KENNA
Applicants

AND

I.A.E. INDUSTRIES PTY LIMITED (A.C.N.005 101 075)
Respondent

CORAM:     Judicial Registrar Linkenbagh
PLACE:       Sydney
DATE:          24 June 1996

REASONS FOR DECISION
Delivered extempore and revised from the transcript

The Orders that I make today in proceedings NI95/4992 are as follows: 

1. The matter is to be heard together with  NI95/4993 of 1995.

2. In respect of the subpoena to Insolvency Trustee Services Australia I grant leave to both parties to inspect the documents produced.

3. In respect of the subpoena to the Principal Registrar of the Licensing Court of New South Wales I note that there is no response to that subpoena. 

4. The name of the respondent is amended by consent to I.A.E. Industries Pty Limited (A.C.N.005 101 075).

5. I direct that pursuant to the provisions of Section 378(1) of the Act I shall make arrangements for the Court to hear this application.

6. I direct the Registrar to notify the parties of the arrangements made pursuant to Order 5. 

The Orders that I make in proceedings NI95/4993 are:

1. That the matter is to be heard  with NI95/4992.

2. That the name of the respondent be amended by consent to I.A.E. Industries Pty Limited (A.C.N. 005 101 075).

3. I direct that pursuant to the provisions of Section 378(1) of the Act I shall make arrangements for the Court to hear this application.

4. I direct the Registrar to notify the parties of the arrangements made pursuant to paragraph 3.

I propose to deliver oral reasons for the Orders that I have made today and those reasons are as follows. The same reasons will apply to both of the applications NI95/4992 and NI95/4993. These are proceedings in which I am part heard. They were commenced by Applications pursuant to the provisions of Section 170EA of the Act on 20 December 1995.

On 12 April 1996, the applicants each filed a Statement of Claim in identical terms pursuant to which monies are claimed in respect of unpaid wages and entitlements on termination in the sum of $8456.50 and there would be no difficulty, in my view, in that claim being heard by me concurrently with the claim pursuant to Section 170EA. The Statement of Claim, however, goes on to claim the sum of $73,757.28 under two alternative causes of action.

Firstly, a claim for monies payable under an Award, which claim can be made pursuant to the provisions of Section 179 of the Act, and secondly, those same monies are claimed in the alternative on the basis of what is described in the statement of claim as a "quantum meruit".  The questions relating to the capacity of the Court to entertain the quantum meruit claim generally and the capacity of a Judicial Registrar to hear that claim and the Section 179 claim were raised in the course of the hearing before me this morning. 

I note that the matter came before Judicial Registrar Tomlinson on 22 May 1996 for hearing of a Notice of Motion seeking to transfer the proceedings to a Judge and vacating the hearing date set for today and the next two days. The application to transfer the matter to a Judge was dismissed and the Judicial Registrar's reasons for so doing are not before me.

It is my view that in exercising my function, I must be satisfied that I have jurisdiction to hear the claims which are made by the parties. As I have said, there is no doubt that the claim under Section 170EA and the claim for the monies said to have not been paid at the time of termination are matters which I could hear. I am now of the view that I do not have the power to hear the claim under Section 179. The jurisdiction of Judicial Registrars is provided for in Section 376 of the Act as follows:

The Rules of 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, insofar 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; or
(c) ........ ... (c) does not apply.

The relevant Rules of Court are contained in Order 74 and Order 74 Rule 2 mirrors the wording of Section 376 and provides that the appropriate amount to be in effect read into Section 376(1)(a) is $10,000. 

The claim under Section 179 in these proceedings exceeds $10,000 and, quite clearly, does not arise out of the termination of the employment or relate to the termination of the employment but rather relates to the terms and conditions of the contract of employment whilst it subsisted and whilst it was being performed. When one looks at the decision of Madgwick J in Coulson v Thomas Cook Limited which is Decision Number 66 of 1996 delivered on 5 March 1996 that view is confirmed.  At page 6 of the judgment his Honour says:

Examples not within Section 376(1)(b) would be ... a claim for short paid wages during a part of the period of the employment long before the employment was terminated

What is claimed in the Statement of Claim in these proceedings falls, in my view, quite clearly within that description by his Honour and cannot be said to be, therefore, within the ambit of Section 376(1)(b).  The claim under Section 179 is, therefore, in excess of the amount under sub-paragraph (a) of 376 and is not within (b) and is therefore outside of the jurisdiction of a Judicial Registrar.

Turning to the claim which is has been described as a quantum meruit, that claim arises at common law.  It is for more than $10,000 and, but for the decision of Justice Madgwick in Coulson, it might have been said that as it arises at common law it comes within the provisions of Section 376(1)(b).  However, it is my view that sub-paragraph (b) requires the claim to arise from the termination of employment.  At the bottom of page 7 of his Judgment in Coulson, Justice Madgwick says this:

The conclusion from the foregoing seems to be inescapable that the Rules have validly delegated to Judicial Registrars unlimited jurisdiction, including jurisdiction for claims of amounts of money provided that "the proceedings relate to a claim that the termination of the employee's employment was unlawful because of an unwritten law (operating in Australia)"

The claim in this instance is a claim for short paid wages prior to the termination of the employment and, therefore falls outside the provisions of Section 376(1)(b) so that I could not hear it in any event.

Another and perhaps more essential argument has been raised this morning by Counsel for the respondent and that is that regardless of the extent of the jurisdiction of Judicial Registrars, the Court does not have the power to hear these claims.  Counsel for the respondent has assisted me with formulating questions for reference to a Judge at a time this morning when consideration was being given to the referral of the jurisdiction question to a Judge rather than referral of the entire proceedings to a Judge.One of the questions formulated is as follows:
Does the Court have jurisdiction under Section 430 of the Industrial Relations Act 1988 to determine and make Orders in respect of a claim for damages for breach of contract other than a breach of contract referable to the termination of the employee's employment, or a claim in quantum meruit in proceedings in which there is a claim that the termination of an employee's employment was unlawful or in proceedings in which there is a claim for moneys owing pursuant to the Award.

The argument was that claims of this kind are beyond the ambit of the Act altogether and that even a Judge of the Court could not entertain the Applications as they fall outside of the jurisdiction.  That will be a matter for the Court to determine.
The procedure which I adopt today is the procedure provided for in Section 378(1) of the Act which reads:

If:

(a)   an application for the exercise of a power delegated under Section 376 is to be or is being heard by a Judicial Registrar; and

(b)the Judicial Registrar considers that it is not appropriate for him or her to determine the application;

he or she must not hear, or continue to hear, the application, and must instead make appropriate arrangements for the Court to hear the application.

Because of the issues which have been raised in relation to not only my own jurisdiction but the jurisdiction of the Court generally, I am of the view that it is not appropriate for me to determine either of these Applications and I shall not continue to hear the applications further.  I shall make appropriate arrangements for the Court to hear the applications. 

I certify that this and the preceding  5 pages are a true copy of the reasons for decision of  Judicial Registrar Linkenbagh as recorded in the transcript
and revised by the Judicial Registrar.

Renee Cauchi
Associate
Dated: 2 July 1996

Counsel for the Applicant:	Mr. M.K. Minehan
Solicitors for the Applicant:	Kennedy and Cooke
Counsel for the Respondent:	Mr. A. Rogers
Solicitors for the Respondent:	Robinson Creais
Date of hearing:	24 June 1996