Kim Louise Dyer and Australian Defence Industries Limited
[1994] IRCA 115
•4 Nov 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY DISTRICT REGISTRY NO. NI 864 OF 1994
BETWEEN
KIM LOUISE DYER
Applicant
AND
AUSTRALIAN DEFENCE INDUSTRIES LIMITED
Respondent
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE)
4 November 1994
PATCH JR
The matter is before the court to hear a notice of motion filed by the respondent. The notice of motion seeks the following orders:
1. That the proceedings be dismissed;
2. That the applicant pay the respondent’s costs.
Before I commenced to hear the argument on the notice of motion itself, counsel for the applicant (the respondent to the notice of motion) submitted that I should adjourn the hearing of the notice of motion. He said that the matter should not proceed today for two reasons.
The first reason was, counsel for the respondent submitted, that Judicial Registrar Tomlinson on 27 October 1994 had already ruled, in effect, that the notice of motion should not proceed until the hearing of the matter, if and when the matter comes back before the Court after a failed conciliation in the Australian Industrial Relations Commission.
That submission was based on something that Judicial Registrar Tomlinson had said when the matter was before her on that earlier date. She said, at point 27 of the transcript of the proceedings of that date:
“I would like to set this matter down for conciliation. I think the issues raised by the respondent are questions of fact which should properly be dealt with by way of defence. I make an order that this matter be referred to conciliation as soon as possible.”
For his first submission, counsel for the applicant relied in particular, on the sentence:
“I think the issues raised by the respondent are questions of fact which should properly be dealt with by way of defence.”
In my view, that statement by Judicial Registrar Tomlinson was not intended to be a final ruling on the matter and was merely a preliminary statement of opinion by way of preface to the order that the matter be referred to conciliation. In this regard I note that the notice of motion was not formally before her, although a copy of it and a copy of the affidavit in support had been handed up to her. She directed that the notice of motion be filed in the registry and refused to allow it to be filed in court. It follows from the fact that the notice of motion was not formally before her that she did not consider the merits of it. I therefore do not uphold the first submission of the applicant.
The second submission of the applicant was this: that the Court has no power to consider the notice of motion until the matter is returned from the Commission after a failed conciliation. In support of this submission counsel for the applicant referred me to section 170EC of the Industrial Relations Act 1988. That section is as follows:
“The Court is not to consider the merits of an application under section 170EA unless:
(a) the Court has referred the matter to the Commission for conciliation and the Commission has certified that it has been unable to the matter; or
(b) the Court is satisfied that it is not appropriate so to refer the matter.”
Counsel for the respondent (the mover of the notice of motion) submitted that the notice of motion raises a jurisdictional point. That is to say, if there was no termination of employment within the meaning of the Act, there is no jurisdiction for the Court to hear the matter. He submitted that the material before the Court is sufficient for me to decide that there has in fact been no termination of employment within the meaning of the Industrial Relations Act and I need no further evidence. Counsel for the respondent tendered the affidavit in support of the notice of motion, which became Exhibit A on the notice of motion.
That affidavit is sworn by Mr Andrew McGibbin, and includes the following:
“1. I am the employed legal counsel of the respondent. I am authorised to swear this affidavit.
` 2. The applicant has been in continuous employment with the respondent since 5 July 1993 ........ ....”
Counsel for the applicant tendered the applicant’s affidavit in these proceedings - that is the affidavit filed in accordance with the previously existing Order 75. That affidavit, exhibit B on the notice of motion, includes the following:
“(d) The date the employee started work with the respondent was 5 July 1993.
(e) The date of proposed termination of the employee’s employment with the respondent is 10 October 1994.
(f) The reason given by the respondent for the proposed dismissal of the employee was poor work performance and attitudes.
(g) The day on which the employee received written notice of the termination was 12 September 1994.”
In my view, the notice of motion should not be heard by me today and I agree with counsel for the applicant that the hearing of the notice of motion should be adjourned.
Section 170EC is, in effect, a legislative directive to the Court. It says, in part, with emphasis added by me:
“The Court is not to consider the merits of an application under Section 170EA unless:
(a) the Court has referred the matter to the Commissioner for conciliation and the Commission is satisfied that it has been unable to settle the matter.”
The Commission has not yet certified that it has been unable to settle the matter. Therefore, the real question to be decided before I embark upon the hearing of the notice of motion is whether or not, in order to determine the notice of motion, I would have to:
“consider the merits of the application”
There are competing statements of fact. On the one hand, the affidavit in support of the notice of motion, exhibit A on this notice of motion, says that the applicant is in continuous employment and is still in continuous employment with the respondent.
On the other hand, the respondent says in her affidavit, exhibit B on the notice of motion, that her employment has, in effect, been terminated and that that termination, as of the date of the affidavit, namely, 29 September 1994, was to take effect on 10 October 1994, about three weeks ago.
I would have to resolve these competing issues of fact in order to determine the notice of motion. I would therefore have to embark upon a “consideration of the merits of the application” itself, the primary application in these proceedings. In order to do that I would have to breach the directive in section 170EC that:
“The Court is not to consider the merits of an application...unless the Commission has certified that it has been unable to settle the matter.”
I therefore decline to hear the notice of motion today. I adjourn the hearing of the notice of motion until the further hearing of the principal application in these proceedings, whenever and if ever that matter is listed for hearing before the Court.
Costs
Counsel for the applicant, the respondent to the notice of motion, submits that the question of the applicant’s costs only should be reserved until the final hearing of the application.
Counsel for the respondent, the mover of the notice of motion, submits that the entire question of costs, that is to say, costs for both parties, be reserved until the further hearing of the matter.
In my view, the respondent should not get costs of today at all. The attempt to have the notice of motion heard today was without reasonable foundation because there was no proper basis in law for it and it was clearly doomed to fail. Therefore, only the question of the applicant’s costs is reserved and I so order.
The notice of motion is adjourned, as I said, for further hearing on the date at which the principle application under section 170EA of the Industrial Relations Act is to be heard, if and when the matter is sent back from the Australian Industrial Relations Commission.
COURT: D Patch, Judicial Registrar
PLACE: Sydney
DATE: 4 November 1994
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.
Associate : Julianne Taverner
____________________
Date : 28 November 1994
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