Laginha, Eduardo v Family Court of Australia
[1998] FCA 987
•6 JULY 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - termination of employment - preliminary issues - whether employee a “continuing employee” under s 82AD(9) of the Public Service Act 1922 (Cth) - whether reg 30B of the Workplace Relations Regulations applied to employee’s circumstances - opportunity to present full case and submissions - denial of procedural fairness.
Federal Court of Australia Act 1976 (Cth) s 28
Industrial Relations Act 1988 (Cth) s 170EA
Public Service Act 1922 (Cth) Div 8C; ss 82AD, 82AD(9)
Workplace Relations Act 1996 (Cth) ss 170EA, 347(1), 377
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)
Workplace Relations Regulations reg 30B
EDUARDO LAGINHA v FAMILY COURT OF AUSTRALIA
NG 60 OF 1998
LEE, MOORE, MARSHALL JJ
SYDNEY
6 JULY 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 60 of 1998
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN:
EDUARDO LAGINHA
AppellantAND:
FAMILY COURT OF AUSTRALIA
RespondentJUDGES:
LEE, MOORE, MARSHALL JJ
DATE OF ORDER:
6 JULY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The order made by his Honour on 10 December 1997 be varied to provide that the application by the appellant for a declaration that the appellant was a “continuing employee” under s 82AD(9) of the Public Service Act 1922 (Cth) be dismissed.
The appeal be allowed in part by setting aside his Honour’s order that the application for relief under s 170EA of the Workplace Relations Act 1996 (Cth) be dismissed.
In lieu thereof it be ordered that that application be submitted to a Judge of this Court for hearing.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 60 of 1998
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN:
EDUARDO LAGINHA
AppellantAND:
FAMILY COURT OF AUSTRALIA
Respondent
JUDGES:
LEE, MOORE, MARSHALL JJ
DATE:
6 JULY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
The appellant is a solicitor who appeared on his own behalf on the hearing of this appeal and on the hearing of the matter before Wilcox J, whose judgment therein is the subject of the appeal. From August 1995 to September of 1996 the appellant was employed by the Family Court of Australia (“the Family Court”) on temporary status, principally as a Deputy Registrar (Mediation). The employment consisted of separate engagements for fixed periods, some as short as one or two days. For most of the period of employment the appellant was engaged for full-time duties but some engagements were for part-time duties of one or two days a week.
After September 1996 the appellant received no further appointments. The appellant submitted to the Family Court that as his "employment" had been for a period in excess of one year, he was an employee to whom Div 8C of the Public Service Act 1922 (Cth) applied, being a “continuing employee” under s 82AD(9) of that Act. That Division imposed procedures to be followed if the services of an employee were to be terminated. The Family Court did not agree with the appellant’s submission.
In October 1996 the appellant lodged an application with the Industrial Relations Court of Australia (“the Industrial Relations Court”) under s 170EA of the Industrial Relations Act 1988 (Cth), as it then was, now the Workplace Relations Act 1996 (Cth) (“the Act”), seeking relief in respect of a termination of employment in contravention of the Act. The application was heard by a Judicial Registrar of the Industrial Relations Court. The Judicial Registrar dismissed the application. The reasons for that decision were delivered in June 1997. In determining that the application should be dismissed, the Judicial Registrar found, contrary to the case presented by the appellant, that the appellant was not a continuing employee under s 82AD(9) of the Public Service Act.
In July 1997 the appellant applied to the Industrial Relations Court under s 377 of the Act for review of the decision of the Judicial Registrar. Pursuant to the terms of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) that application was transferred to this Court for hearing and determination. The application came on for hearing before Wilcox J in August 1997. Upon hearing the application it became apparent to his Honour that there were two threshold issues to be determined: first, was the appellant a “continuing employee” under s 82AD(9) of the Public Service Act, and second, did reg 30B of the Workplace Relations Regulations (“the Regulations”) apply to the appellant's circumstances. If the appellant was a “continuing employee”, a declaration could be made that Div 8C of the Act applied to the employer/employee relationship and the application under s 170EA of the Act would fall away. If the appellant was not such an employee and reg 30B of the Regulations applied to his circumstances, he was unable to make an application under s 170EA of the Act. Each of these questions was described as a "jurisdictional issue", using that expression in its broadest sense.
As the appellant's case developed before his Honour, the hearing was restricted to the two preliminary questions, the further hearing of the application for review to await determination of those questions.
The first of those questions was whether a declaration should be made that the appellant was a continuing employee under s 82AD(9) of the Public Service Act. Obviously that was a mixed question of fact and law to be determined on the evidence put before the Court by the parties. This must have been clear to the appellant in the course of the hearing when his Honour raised with the appellant questions which went to the state of the evidence. In response the appellant said that he might adduce further evidence but he did not do so and made no application to his Honour in that regard. His Honour properly assumed that the appellant's case on the first preliminary question was as presented.
The second question for his Honour to determine was whether, on the facts of the case, reg 30B of the Regulations applied to the appellant's circumstances, denying the appellant the right to bring an application under s 170EA of the Act. Again, this was a mixed question of fact and law.
In December 1997 his Honour delivered reasons for judgment in which he found that the appellant was not a “continuing employee” under s 82AD(9) of the Public Service Act and that reg 30B of the Regulations did not apply to the appellant. However, his Honour also determined on the merits the appellant's application under s 170EA of the Act and made an order that the application for review of the Judicial Registrar's decision be dismissed. The order made did not include an order that the appellant's application for a declaration that he was a “continuing employee” under s 82AD of the Public Service Act be dismissed. In presenting his case on the appeal the appellant assumed that such an order had been made by his Honour.
The appellant appealed from his Honour's judgment by contending that his Honour's finding that the appellant was not a “continuing employee” under s 82AD(9) of the Public Service Act was made without procedural fairness to the appellant in that the finding was made without the appellant being given the opportunity to present his “full case and submissions".
We have no doubt that in the hearing before his Honour it was plain to the appellant and the respondent that the preliminary question to be determined involved the question of fact whether the appellant was a continuing employee within the meaning of s 82AD(9) of the Public Service Act. The question for determination was, was the application of s 82AD(9) to facts as found by his Honour not solely the determination of the proper construction of s 82AD(9)? The evidence placed before the Judicial Registrar on that issue was taken to be the evidence before his Honour. It would have been obvious to a legal practitioner that if other evidence was to be relied upon it would have to be put before his Honour. The exchange between his Honour and the appellant made that very clear. In truth, the appellant elected not to put any additional material before his Honour for consideration and to rely on his case as presented. The appellant is bound by the election and the claim that he was denied procedural fairness in the conduct of the hearing is untenable. The appellant does not challenge the finding made by his Honour on the evidence presented.
A further ground of appeal from his Honour's judgment was that the dismissal of the claim for relief under s 170EA of the Act denied the appellant procedural fairness. The appellant contended that the hearing of his claim under the Act was limited to determining whether reg 30B of the Regulations applied to the appellant and if that question was decided in his favour the appellant was to have been given further opportunity to present his case on the merits. That ground was conceded by the respondent shortly before the appeal came on for hearing. The respondent did not appeal from his Honour's finding on the preliminary question that reg 30B did not apply to the appellant.
We therefore propose to make the following orders. Under s 28 of the Federal Court of Australia Act 1976 (Cth), the orders made by his Honour will be varied to record that the appellant's application for a declaration that he was a continuing employee under s 82AD(9) of the Public Service Act is dismissed; the appeal will be allowed in part by setting aside his Honour's order that the application for relief under s l70EA of the Act be dismissed, and in lieu thereof it will be ordered that the application be remitted to a Judge of this Court for hearing.
There will be no order as to costs. The respondent has not sought costs in respect of that part of the appeal sought to set aside his Honour's order that the appellant’s application for a declaration as to the operation of the Public Service Act be dismissed. The appellant has sought costs in respect of the remainder of the appeal on which the appellant has succeeded. Section 347(1) of the Act provides that ordinarily costs are not payable on such an appeal.
The circumstances of this case are circumstances to which the provisions of s 347(1) apply.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated:
The Appellant appeared in person. Counsel for the Respondent: B D Hodgkinson
Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 July 1998
Date of Judgment: 6 July 1998
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