Liquor Hospitality and Miscellaneous Union v Jacklyn Gae Fillios

[2005] NSWSC 537

CITATION:	Liquor Hospitality and Miscellaneous Union v Jacklyn Gae Fillios [2005] NSWSC 537
HEARING DATE(S):	3 June 2005
JUDGMENT DATE :	10 June 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The judgment and orders made by the Magistrate on 2 March 2004 are set aside; the matter is remitted to the Local Court for determination in accordance with law; the costs in the proceedings before the Local Court are to be determined by the Local Court; the defendant is to pay the costs of summons; if so entitled, the defendant is to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS:	Plaintiff not a party to Board of reference and reveiw proceedings - negligence of union in conduct of those proceedings - the possibility of damage - failure to address submissions - numerous errors - powers of the Court in determining an appeal.
LEGISLATION CITED:	Hotels, Resorts and Hospitality Industry Award 1995 Local Courts (Civil Claims) Act 1970, s69(4) Workplace Relations Act 1996, s131
PARTIES:	Liquor Hospitality and Miscellaneous Union (formerly Australian Liquor Hospitality and Miscellaneous Workers Union) (Plaintiff) Jacklyn Gae Fillios (Defendant)
FILE NUMBER(S):	SC 11339/04
COUNSEL:	Mr A Rogers (Plaintiff) Mr K E Roser (Defendant)
SOLICITORS:	Harmers Workplace Lawyers (Plaintiff) Stephen Pratt (Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	232 of 2002
LOWER COURT JUDICIAL OFFICER :	Jacobs LCM

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

10 June 2005

11339 of 2004 Liquor Hospitality and Miscellaneous Workers Union v Jacklyn Gae Fillios

JUDGMENT

1 Master: The plaintiff is a union. The defendant was a member of it.

2 During 1996, the defendant was employed at a hotel at South West Rocks on a casual basis. She says that in about March 1996, she told her employer that she was a member of the union. Thereafter, she was advised by her employer that she was redundant. Her employment was terminated. She approached the plaintiff for advice. She wanted to be reinstated.

3 A board of reference (the Board) was convened. The plaintiff was the appellant (the defendant was not a party). She was not given notice of the date of its meeting. The plaintiff did not attend until after it had been notified by the chairman of the board.

4 The question before the Board was one of award breach (it concerned a matter of preference). The matter of the employee’s prior knowledge of her membership was not put in issue. By majority, it was determined that the employer had not failed to comply with the award.

5 Although the defendant had been told that a review of the decision (the review) would be sought before the Australian Industrial Relations Commission (the Commission), no such review proceeded (the plaintiff changed its mind about the making of an application, but did not advise the defendant of that decision).

6 The defendant brought proceedings in the Local Court against the plaintiff. It was a claim for damages. It appears to have been founded on both breach of contract and negligence. The claim concerned the conduct of the plaintiff in and about what took place in respect of the Board and the review.

7 The claim was defended and came on for hearing in the Local Court. It was heard by Jacobs LCM. Judgment was given on 2 March 2004.

8 The defendant was successful in those proceedings. She obtained, inter alia, a judgment in the sum of $17,580.00.

9 On 13 March 2004, a summons was filed in this court. It both propounds an appeal and seeks leave in the event that there is a finding that grounds of appeal involve a question of mixed fact and law. The defendant has filed a notice of contention.

10 The appeal was heard on 3 June 2005. Both parties relied on written submissions supplemented by oral argument.

11 During the course of submissions, it became obvious that it was inevitable that the appeal should succeed and that the orders made by the Magistrate should be set aside. The only matter that remained in dispute was what should happen thereafter.

12 In these circumstances, it suffices if brief reasons only are given. Before turning to those reasons, I should first refer to what was done by the Magistrate.

13 The Magistrate rejected that part of the claim which concerned what happened before the Board (she came to the view that she could not make a finding of negligence). The Magistrate found in favour of the defendant in respect of that part of the case that concerned the review. She did not deal with that part of the claim that was founded on contract (there is dispute between the parties as to whether or not submissions were made in support of it).

14 The judgment contains, inter alia, the following:-

The review did not go ahead and the plaintiff’s case is that she lost opportunity through their failure to notify her of their decision not to review the board of reference hearing decision. The defendant’s argument is that she has no standing under section 149(1)(a), 149(1)(b) and 149(1)(c) of the Industrial Relations Act in that she was not a party to the proceedings and the award and not entitled therefore to lodge an appeal against the decision of the board of reference.
I accept this. However, under section 149(1)(e) of the Industrial Relations Act she is a person bound by the award, that is by definition in that section, a person on whom the award is binding and is therefore entitled on her own without the assistance of the union to take the dispute further and as if she was not represented by a union to the Industrial Relations Commission on her own bat.
I am satisfied that she would have done this had she been told that the union was not seeking a review of the board of reference hearing and she could have done this in the relevant time periods. As a result of the union’s failure to take the necessary steps to review the matter after being fully advised of the relevant facts and their failure to advise her of their decision to pursue the review the plaintiff lost her opportunity to engage someone else or to get advice or to do something different.
The union is negligent in that it made her position worse in this sense by closing the door on those other opportunities pursuant to her standing under the said relevant Act. With respect to the damages I award the plaintiff the sum of $10,080 being a years lost wages at $180 per week and together with the sum of $7500 for pain and suffering in relocation costs together with the interest. The defendant is to pay the plaintiff’s costs as assessed.

15 It was conceded by the defendant that the judgment had imperfections in expression and was not a model of the judicial art.

16 This may be thought to be understatement. It may be described as a judgment infected by error. As a consequence, there was no alternative but to disturb the decision.

17 The submissions that were made to the Magistrate were detailed and supported by much authority. The judgment of the Magistrate does not reflect that advantage was had from that material. A consequence was that many matters in issue were left undecided.

18 Before proceeding further, I should mention certain relevant background matters.

19 The Board is a body set up by the Commission. It has the powers given to it by s131 of the Workplace Relations Act 1996 (which was at the time called the Industrial Relations Act 1988).

20 The relevant award is the Hotels, Resorts and Hospitality Industry Award 1995 (the Award). The plaintiff is a party to the Award. Clause 13.5 of the Award provides that “Decisions of the Board may be reviewed and altered by the Commission on application of any party to this Award”. The defendant was not a party to the Award. She was bound by it prior to the termination of her employment.

21 The defendant was not a party to the proceedings before the Board. She did not have locus standi to be a party before either the Board or the review.

22 The plaintiff was a party in its own right and was not her agent or servant in the proceedings. As her employment had been terminated, she was not bound by the award. Even if the award had been binding on her, it would not have given her locus standi to proceed “on her own bat”. At best, she could have negotiated with the plaintiff in the hope of convincing it to change its mind about not proceeding with the review.

23 One of the issues raised before the Magistrate was the question of the capacity of both the Board and the review to order reinstatement. It was a question that the Magistrate did not address. There is authority that supports the proposition that neither have power to make a binding order that a person be reinstated. The defendant did not take issue with this matter on the appeal. Rather, it takes the stance that she was deprived of the opportunity to pursue settlement prospects.

24 The Magistrate also misdirected herself in her approach to the questions of negligence. The tort of negligence is constituted by three separate elements. Firstly, there must be an examination of the relevant facts and a determination as to whether or not there is a duty of care owed in the circumstances and, if so, the nature of that duty has to be defined. Secondly, the question of breach of that duty has to be addressed. Thirdly, it has to be established that damage flowed from that breach of duty.

25 The plaintiff sees itself as being in the position of a volunteer and being only liable for damage if the position of the other party is made worse by what the plaintiff has done. Whilst the defendant does not accept that this is the case, it presents the view that this is not an issue that is essential to the determination of her claim.

26 There were real questions before the Magistrate as to duty of care and breach, as well as whether any damage could flow from the conduct of the plaintiff (which was conceded as falling short of what it should have done).

27 The Magistrate does not appear to have fully addressed these matters. How she came to her finding of negligence may be unclear but it appears to have been reached in some confusion. Whatever approach was taken, it was not that which is required by law.

28 There were also problems in the approach to the assessment of damages.

29 The claim that had been brought in the Local Court was one for economic loss. It was a relatively modest claim, that sought damages for the loss of a chance.

30 The Magistrate did not approach the task of the awarding of damages on this basis. Instead, she awarded damages for the loss of wages at the rate of $180.00 per week for a year. How she came to this result is also unclear. Unfortunately, the sum allowed was also infected by mathematical error (damages were in fact allowed for a period of 56 weeks).

31 Although the plaintiff made no claim for general damages, the Magistrate awarded the defendant the sum of $7,500.00 for pain and suffering in relocation costs. How she came to make this award is also unclear. It was a finding that was not supported by evidence.

32 I shall now move on to the question of what should now be done with the proceedings. This was a matter upon which counsel sought and were given the opportunity to make further written submissions.

33 I have read the further written submissions provided by counsel. These submissions present conflicting views as to what should now be done with the matter.

34 One question that is thrown up concerns the power had by the Court pursuant to s69 of the Local Courts (Civil Claims) Act 1970. Subsection (4) thereof is in the following terms:-

(4) The Supreme Court may determine an appeal made
under this section:
(a) by setting the judgment or order aside, or
(b) by varying the terms of the judgement or order, or
(c) by setting the judgment or order aside and remitting the matter to the court for determination in accordance with the Supreme Court’s directions, or
(d) by dismissing the appeal.

35 This provision sets out four courses of action that may be taken in the determining of an appeal under the section. There is little guidance as to its proper construction

36 It seems to me that this is a case in which it is unnecessary to further pursue that question. There are many matters that either have not been addressed, or not properly addressed, by the Magistrate. I consider that the proceedings should be remitted to the Local Court so that it can deal with these matters.

37 The judgment and orders made by the Magistrate on 2 March 2004 are set aside. The matter is remitted to the Local Court for determination in accordance with law. The costs in the proceedings before the Local Court are to be determined by the Local Court. The defendant is to pay the costs of summons. If so entitled, the defendant is to have a certificate under the Suitors’ Fund Act 1951.

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