Manuel v Pasminco Cockle Creek Smelter Pty Ltd

[1998] FCA 1083

FEDERAL COURT OF AUSTRALIA

Industrial Law – review – unlawful termination – compensation awards based on the loss of a chance of continued employment – whether award should carry interest

Workplace Relations Act 1996 (Cth), s 170EE, s 482
Industrial Relations Act 1988 (Cth)
Federal Court of Australia Act 1976 (Cth), s 50

Simpson v Systems Services Pty Ltd (No.2) (1997) 73 IR 61 cited
Jefford & Another v Gee [1970] 2 QB 130 cited

Matter No. SG11 of 1998

DENNIS RICHARD MANUEL & OTHERS v PASMINCO COCKLE CREEK SMELTER PTY LTD

VON DOUSSA J
SYDNEY
7 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG11  of   1998

BETWEEN:

DENNIS RICHARD MANUEL
RODNEY CHARLES CARROLL
WAYNE MALCOLM CALDWELL
NEVILLE DAVID DENNIS
GEORGE JOHNSON
RONALD JOHN SIMMONS
PAUL DOUGLAS CARROLL
RONALD JAMES PARKER
MARK GREGORY NAPIER
PETER JOHN McDONALD
KOSGMAS DIAMANTES

APPLICANT

AND:

PASMINCO COCKLE CREEEK SMELTER PTY LTD (formerly PASMINCO METALS SULPHIDE PTY LTD)

RESPONDENT

JUDGE:

VON DOUSSA J

DATE OF ORDER:

7 AUGUST 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. By consent award in favour of Ronald John Simmons amended to $17,472.

2. Application to revoke orders made in s 50 of the Federal Court of Australia Act 1976 during the hearing of the review refused.

3. The awards in favour of each of the applicants carry in addition interest at the rate of 8 per cent per annum for one year.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG11 of 1998

BETWEEN:

DENNIS RICHARD MANUEL
RODNEY CHARLES CARROLL
WAYNE MALCOLM CALDWELL
NEVILLE DAVID DENNIS
GEORGE JOHNSON
RONALD JOHN SIMMONS
PAUL DOUGLAS CARROLL
RONALD JAMES PARKER
MARK GREGORY NAPIER
PETER JOHN MCDONALD
KOSGMAS DIAMANTES

APPLICANTS

AND:

PASMINCO COCKLE CREEEK SMELTER PTY LTD (formerly PASMINCO METALS SULPHIDE PTY LTD)

RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	7 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Judgment was given in this matter on 7 July 1998. It has been relisted this morning at the request of the solicitors for the applicants, each of whom succeeded to the extent that they obtained awards of compensation assessed under s 170EE of the Workplace Relations Act 1996 (Cth), formerly the Industrial Relations Act 1988 (Cth) (“the Act”). The Court has been informed that there are several matters outstanding that need to be attended to.

The first matter concerns an adjustment, that the parties agree is necessary, to the award made in favour of Ronald John Simmons.  I am informed now that the information that was placed before the Court regarding workers compensation payments which ran from January 1979 was incorrect.  If adjustment is made to reflect the correct payments, the award of compensation according to the process of calculation used in the judgment would be $17,472.  By consent that figure is to be substituted for $13,625 in the order.  It remains for the applicants to finally bring in orders to be sealed and that is the figure that should be inserted.

The next matter is an application to revoke orders that were made under s 50 of the Federal Court of Australia Act 1976 (Cth) in respect of certain exhibits that were tendered during the review hearing. In my opinion, there is information of a confidential nature in those documents. It was for that reason that the s 50 orders were made in the first instance and I am not disposed to lift those orders. The papers are, however, available for use in the Full Court if that is necessary. Pursuant to the order that was made the exhibits are also available to the solicitors and counsel for the parties.

The final matter is an application for interest pursuant to s 482 of the Act in respect of the awards that were made. I am informed and accept that the original applications that were lodged included claims for interest. The awards made by the Judicial Registrar did not include interest and the question of interest was not raised in the course of oral submissions before me. I accept that there was a one line reference to interest in the voluminous written submissions that were made by the parties and I regret that that reference was overlooked.

The Court undoubtedly has power to award interest pursuant to s 482. I consider the Court has power to award interest even where the compensation awarded represents the maximum permitted under s 170EE. I refer to my reasons for judgment in Simpson v Systems Services Pty Ltd (No.2) (1997) 73 IR 61 at 67.

The application of the principles that relate to the award of interest is not easy in this case because the compensation was not based on the loss of an ongoing weekly wage.  Rather, it was assessed by reference to the chance that the applicants would have continued to work for a further four years.

Mr Morris contends that the loss was assessed over a four year period and that it was assessed without any discount being made for the fact that part of the four years was yet to run.  By chance, today happens to be the mid point of the four year period.  His argument has the virtue of simplicity.  It is that two years have already run, and there are two years yet to run which have been the subject of an undiscounted award of compensation.  The future should offset the past and there should be no award of interest.  That is a superficially appealing argument.

On the other hand, the award operates notionally from the time when the termination occurred, and had there been an assessment made at about that time, the award would probably have been in the same order as the amounts that have now been awarded.

As Mr Docking points out, awards were made by the Judicial Registrar in favour of some of these applicants, and others received the benefit of reinstatement orders.  All orders were stayed pending the review.  The effect of the stay was to keep them out of money for the duration of the review hearing.  Those are matters that I think need to be taken into account.  On the other hand I do not overlook the fact that part of the loss is in respect of the future.  Even if the awards were to be treated as compensation for the loss of a complete weekly wage over a finite period, interest would not run on the whole of the sum from the first day after termination.

I think this is a matter where a very broad approach should be taken to interest.  What I propose to do is allow interest at 8 per cent for one year, or if you wish 4 per cent for two years, on each of the amounts that are awarded: cf Jefford & Another v Gee [1970] 2 QB 130. I will express the order as one year’s interest at 8 per cent on each of the sums awarded. I will extend time to appeal by seven days from today.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa

Associate:

Dated:             7 August 1998

Counsel for the Applicant:	Mr B G Docking
Solicitor for the Applicant:	Buckworth Keady Chalker
Counsel for the Respondent:	Mr A Morris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 August 1998
Date of Judgment:	7 August 1998