Lynch, Theresa v Trustees of the Sisters of Charity of Australia

[1997] FCA 498

CATCHWORDS

INDUSTRIAL LAW - Complaint of unlawful termination - whether provisions of Industrial Relations Act 1988 which conferred rights on employees in respect of unlawful termination had retrospective operation - whether jurisdiction to entertain an application for unlawful termination in respect of termination which occurred in 1984

Workplace Relations and Other Legislation Amendment Act 1996, Act No 60 of 1996, Sch 16
Workplace Relations Act 1996 ss 170EA, 170ED

Association of Professional Engineers Scientists and Managers Australia v Skilled Engineering Pty Ltd (1994) 1 IRCR 106
Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212
Gunnedah Shire Council v Grout (1995) 134 ALR 156
Siagian v Sanel Pty Limited (1994) 1 IRCR 1
The Rochester Communications Group Pty Ltd v Adler (1996) 65 FCR 572
Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48

THERESA LYNCH v TRUSTEES OF THE SISTERS OF CHARITY OF AUSTRALIA
No. NI 97/1128

Moore, Marshall & North JJ
Sydney
4 June 1997

IN THE FULL COURT OF THE             )
FEDERAL COURT OF AUSTRALIA       )
NEW SOUTH WALES DISTRICT REGISTRY )      No. NI 97/1128

ON APPEAL FROM A SINGLE JUDGE OF THE
INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:              THERESA LYNCH
  Appellant

AND:        TRUSTEES OF THE SISTERS
  OF CHARITY OF AUSTRALIA   Respondent

CORAM:    Moore, Marshall & North JJ
PLACE:    Sydney
DATE:     4 June 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.The appeal is dismissed.

NOTE:Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

IN THE FULL COURT OF THE             )
FEDERAL COURT OF AUSTRALIA       )
NEW SOUTH WALES DISTRICT REGISTRY  )     No. NI 97/1128

ON APPEAL FROM A SINGLE JUDGE OF THE
INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:              THERESA LYNCH
  Appellant

AND:        TRUSTEES OF THE SISTERS
  OF CHARITY OF AUSTRALIA
  Respondent

CORAM:    Moore, Marshall & North JJ
PLACE:    Sydney
DATE:     4 June 1997

REASONS FOR JUDGMENT

THE COURT

This is an appeal from a judgment of 12 March 1997 of Madgwick J sitting as a judge of the Industrial Relations Court of Australia (“IRCA”). The jurisdiction of IRCA is now, in substance, vested in the Federal Court of Australia by operation of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and this appeal is a proceeding in that latter Court.

On 24 May 1996, Ms Lynch lodged with the Australian Industrial Relations Commission (“the Commission”) an application under s 170EA of what is now entitled the Workplace Relations Act 1996 (“the Act”) for relief in respect of the termination of her employment by the Trustees of the Sisters of Charity of Australia (“the employer”) who conducted St Vincents Private Hospital in Sydney. Ms Lynch had been employed as a clinical specialist nurse in an intensive care unit. Her employment was terminated on 4 October 1984. Proceedings concerning her dismissal were brought, without success from Ms Lynch’s perspective, shortly thereafter in the Industrial Commission of New South Wales (“the State Commission”). As part of the proceeding arising from the application lodged in 1996 under the Act, Ms Lynch asserted the judgment of the State Commission should be set aside on the basis of fresh evidence.

The application lodged in 1996 came before the President of the Commission on 30 May 1996. It appears that the employer applied for the matter to be referred to IRCA to deal with an application to summarily dismiss it. On 24 July 1996, Judicial Registrar Walker dismissed Ms Lynch’s application on the basis that IRCA had no jurisdiction to entertain it. This was because the rights conferred on employees by Division 3 of Part VIA, arising from amendments to the Act by the Industrial Relations Reform Act 1993 (“the Reform Act”) and effective from 30 March 1994, were rights in relation to a termination occurring after that date. The Reform Act did not operate retrospectively. The Judicial Registrar referred to the judgments of Wilcox CJ in Siagian v Sanel Pty Limited (1994) 1 IRCR 1 and Gray J in Association of Professional Engineers Scientists and Managers Australia v Skilled Engineering Pty Ltd (1994) 1 IRCR 106 which established that the relevant provisions of the Reform Act did not have retrospective operation. It appears from his ex-tempore judgment that the Judicial Registrar refused leave to extend the time within which Ms Lynch’s application might be made. He seemingly did so because he had no jurisdiction to extend time given that the termination occurred prior to 30 March 1994.

On 13 August 1996, Ms Lynch sought a review by a judge of IRCA of the exercise of power by the Judicial Registrar to summarily dismiss the application.  The review was heard by Madgwick J on 12 March 1997.  His Honour held that the Judicial Registrar had not erred  and that the application of Ms Lynch was “quite hopeless”.  His Honour also held that there was no jurisdiction in IRCA to hear and determine the application.

In this appeal, Ms Lynch contended that Madgwick J erred in holding that IRCA had no jurisdiction to entertain the application.  His Honour was plainly correct in finding that IRCA had no jurisdiction to deal with the application.  As Wilcox CJ said in Siagian at 8:

“There could not be a contravention of Div. 3 before it came into operation.  It did not come into operation until 30 March (1994).  Accordingly a termination before 30 March (1994) could not amount to a termination under the Division.”

See also Gray J in APESMA at 112.

In addition Ms Lynch sought to rely on s8(c) of the Acts Interpretation Act 1901 (Cth) to found jurisdiction. It provides:

“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:-

(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed.”

However no relevant rights were conferred by an Act of the Commonwealth prior to the enactment of the Reform Act. Thus no rights regarding the termination of Ms Lynch’s employment were preserved. Section 8(c) has no application to this matter.

Ms Lynch pointed to ss 418 and 419 of the Act, in the terms they were in when the Judicial Registrar addressed the matter, as providing jurisdiction to deal with it: see now ss 22 and 23 of the Federal Court of Australia Act 1976. However these sections respectively refer to a “claim properly brought forward” and a matter “in which (IRCA) has jurisdiction”. These sections only apply when the Court has jurisdiction to hear a matter. In our view it does not.

Ms Lynch contended that the Court could determine other issues which arise out of the same substratum of facts as her application under s 170EA and therefore arise in the associated and/or accrued jurisdiction of the Court. However as the Full Court of IRCA held in Gunnedah Shire Council v Grout (1995) 134 ALR 156 there is no jurisdiction to hear an associated or accrued claim where the primary claim is colourable or made for an improper purpose of fabricating jurisdiction. See also Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212, 219.

In this matter the application under s 170EA is manifestly colourable. It was correctly described by the trial judge as “quite hopeless”. In any event IRCA has no jurisdiction, even in its associated or accrued jurisdiction, to grant the relief sought by Ms Lynch. That is, the setting aside of a judgment of the State Commission in an unfair dismissal matter heard by it over a decade ago. Neither IRCA nor the Federal Court are in the same curial hierarchy as the State Commission or its successors as evident from the discussion by Beaumont J in The Rochester Communications Group Pty Ltd v Adler (1996) 65 FCR 572.

Ms Lynch drew attention to a letter in evidence from the employer’s solicitors, Cutler Hughes & Harris, to Madgwick J’s associate indicating there had been discussions between the solicitors and the associate, prior to the hearing before his Honour, about the scope of the hearing. The discussion concerned matters of procedure only, that is, would the hearing be confined to the legal question of jurisdiction.  Ms Lynch contended this raised a issue of apprehended bias on his Honour’s part. The discussions that the associate engaged in were entirely consistent with the issue before Madgwick J, namely the exercise of power by a Judicial Registrar to summarily dismiss an application for want of jurisdiction. 

However the role of an associate may not be well understood.  A judge’s associate can, and often must, discuss matters concerning procedure with parties and can do so without compromising the impartiality of the judge.  There is nothing about the communications referred to in the letter that suggests that they were improper or even inappropriate.  The following remarks by Davies J in Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 51 apply equally to oral communications between a party and the Registry or an associate as they do to documents:

“Documents and their contents do not come to the knowledge of a judge merely by being contained in the Court’s file or produced on subpoena, whether held in the Registry or in the judge’s chambers.  It is a necessary and fundamental incident of the Court’s processes that a judge is removed from the knowledge which registry officers may have and even from that which members of his own staff may have.  In general, a judge is made aware of matters which the judge takes into account when evidence is adduced formally in court.”

Another matter pointed to by Ms Lynch as a cause for concern about the impartial adjudication of her application by IRCA was a file note annexed to an affidavit sworn by a solicitor in the employ of Cutler Hughes & Harris. The file note was made before the Judicial Registrar dismissed Ms Lynch’s application.  The note, dated 3 July 1996, was made by a secretary of a consultant to that firm.  The relevant part of the note related to a conversation the secretary had had, seemingly, with an employee in the Registry of IRCA.  The relevant part of the file note reads:

“Tel Industrial Rel. Ct (239 8333).  This matter has been listed before a Judicial Registrar & only Lynch to appear.  This matter is possibly vexatious & will probably be dismissed.  Lynch has to prove jurisdiction.  It is possible for this matter to go before a Judge if Lynch forces the issue.  No orders will be made in our absence - unless it will be dismissed.”

If this file note records accurately the substance of the conversation between a Registry employee and the secretary, it gives rise to real concern.  It is not part of the function of Registry staff to proffer a view about the likely result of litigation in the Court.  Indeed it can, as it has done in this case, create a disturbing impression, though a false one, that matters are determined before they are heard by a judicial officer in open court.  While we understand the concern it has engendered in Ms Lynch, we have no reason to believe  that it is anything other than a manifestation of an employee in the Registry behaving inappropriately. It does not sustain a conclusion that the Judicial Registrar or Madgwick J had predetermined the matter.

For these reasons the appeal is dismissed.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:   Alexandra George  

Date:   4 June 1997  

APPEARANCES

Appellant:                  appeared in person

Counsel for the Respondent:  M Scott
Solicitor for the Respondent:     Cutler Hughes and Harris

Date of hearing:            2 June 1997

Date of judgment:           4 June 1997