Lynch v St Vincents Private Hospital

[1997] IRCA 95

DECISION NO:95/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - no point of principle

Industrial Relations Act 1988 (Cth), ss170DB, 377, 430

Lynch v St Vincents Private Hospital
NI  1689R of 1996


Before:  MADGWICK J
Place:  SYDNEY
Date:  12 MARCH 1997

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

NI  1689R of 1996

BETWEEN:

Lynch
Applicant

AND

St Vincents Private Hospital
Respondent

BEFORE:     MADGWICK J
PLACE:        SYDNEY
DATE:           12 MARCH 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

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  1689R of 1996

BETWEEN:

Lynch
Applicant

AND

St Vincents Private Hospital
Respondent

BEFORE:     MADGWICK J
PLACE:        SYDNEY
DATE:           12 MARCH 1997

REASONS FOR DECISION
(Revised from transcript)

In this matter, the applicant seeks a review of a decision of a Judicial Registrar, who dismissed her application. He did so succinctly in an ex tempore judgment in the following terms:

"It is the respondent's case that this court has no jurisdiction to entertain the applicant's claim as the applicant was given written notice of termination from her employment on 4 October 1984.

The applicant, in support of her extension of time to bring this claim states that her employer has wilfully concealed relevant evidence from the Industrial Relations Commission and has thereby improperly gained a judgment and financial benefit. By this I understand that the applicant means the New South Wales Industrial Commission. The applicant also says she has suffered some miscarriage of justice concerning an order for discovery made by the commission.

In order for me to consider the applicant's claim it will be necessary for the Industrial Relations Reform Act to have retrospective operation as the provisions of the Act came into operation on the 30th March 1994.

The situation was considered by Wilcox CJ in Siagian v Sanel Pty Limited and Gray J in A.P.E.S.M.A. v Skilled Engineering, and on the basis of these decisions I must dismiss the application for unfair termination.

I make no order for costs."

Before me, Ms Lynch has elaborated the injustice which she feels she has suffered. She has drawn my attention to the associated jurisdiction of this court. She has also drawn my attention to the necessity to give this remedial Act a purposive construction. She has referred to the wide powers of the court to do justice in a matter properly before it, and has pointed out that she only recently discovered what she says was the wilful concealing of evidence. She seeks to attach the associated or accrued jurisdiction to a claim that section 170DB of the Act was breached, and therefore asserts that the entire claim comes within the associated jurisdiction of the court.

There is no doubt that I have jurisdiction to review the Judicial Registrar's decision and I do so review it. However, none of the matters raised by Ms Lynch indicates any error in the approach of the Judicial Registrar and I agree with him that this case is quite hopeless. There is nothing to indicate that the Act has a retrospective operation such that it would catch allegedly unlawful terminations of employment in 1984, nor does it provide a remedy for notice of termination of employment in 1984 which, judged by the standards of the 1994 Act, might be inadequate. There is therefore no matter within the primary jurisdiction of the court to which any otherwise justiciable plaint could attach. Consequently, the court has no jurisdiction to entertain the applicant’s claims.

I confirm the order of the judicial registrar that the proceedings be dismissed.

I certify that the preceding 2 pages are a true copy of the reasons for decision of Madgwick J.



Associate:     
Dated:            12 March 1997




APPEARANCES

For the Applicant:	In person
Counsel for the Respondent:	S. Bower
Solicitors for the Respondent:	G. Hughes
:
Date of hearing:	12 March 1997