Marks, Colin T v Skywest Aviation Pty Ltd

[1997] FCA 820

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Nos VI 2046 of 1996
  VI 2047 of 1996

B E T W E E N :

COLIN T MARKS AND ANOTHER

Applicants

A N D :

SKYWEST AVIATION PTY LTD

Respondent

COURT:         NORTHROP J
PLACE:          MELBOURNE
DATE:            25 JULY 1997

REASONS FOR JUDGMENT

The matters presently before the Court are in VI96/2046 in which the applicant is Colin Thomas Marks, I leave aside the Air Pilots Federation. The respondent is Skywest Aviation Pty Ltd.  This application was commenced on 25 July 1996, exactly one year ago today, in which the applicant sought relief for unlawful termination of employment by the respondent, Skywest Aviation.  At the same time in other proceedings, matter VI2047 of 1996, Philip Andrew Taylor commenced proceedings against Skywest Aviation also for unlawful termination of employment.

The two applications came on for hearing before a Judicial Registrar and were heard together. On 21 March 1997 the Judicial Registrar made orders and published reasons for those orders.  The document which was published by the Judicial Registrar on that occasion consisted of the traditional form. On the front page there were set out the catchwords, the names of the parties, the numbers of the applications and the constitution of the Court. The two matters, 2046 and 2047 of 1996 both appeared.  The next page sets out the minutes of the orders and again only one page in which the two matters are identified at the beginning of the page. Here there appeared under the words Minutes/Orders “the Court orders that the applications be dismissed”. Note the words “applications be dismissed”.

The reasons for decision were set out. They appeared under the same heading. The Registrar dealt with the two applications in the one set of reasons and the concluding part of the reasons are:

“In these circumstances the appropriate order is that the applications be dismissed.”

It is fair to say that during the course of the hearing, apparently and also in the reasons for decision, another company, Skywest Airlines, gets much mention. The unusual feature here is that Skywest Aviation and Skywest Airlines were to some extent related companies but carrying on different activities and the relationship by now might be further apart than previously. There was an Award binding each company and the Australian Federation of Air Pilots, the organisation to which Mr Taylor and Mr Marks were members, in which there was a common seniority list of pilots which enabled pilots employed by one company to bid or seek employment in relation to the other company if a vacancy occurred in relation to particular types of aircraft.  Questions arose before the Judicial Registrar in circumstances whether there had been an obligation by Skywest Airlines to take on a pilot under the provisions of that Award.

In due course a motion to review the decision of the Judicial Registrar was filed in No.2047 of 1996, the matter in which Mr Taylor was the applicant. No similar motion was filed in No.2046 of 1996 in which Mr Marks was the applicant. No.2047 of 1996 came on for directions.  Directions were given and the matter was adjourned.  It came on a second occasion before the Court for directions and was adjourned. On the third occasion it came before the Court for directions it was announced that there were problems because there should have been a motion for review in relation to Mr Marks in No.2046 of 1996. The matter was adjourned further. The Court made further directions. These were in No.2047 of 1996 in which Mr Taylor was the applicant, being the only matter before the Court in this sense that it was the only matter in which the motion for review had been filed.  The directions, given on 8 July, were:-

“(1)Adjourn directions hearing of VI2047 of 1996 to 25 July 1997 and direct that on that occasion the parties should be prepared to argue questions of change of venue and questions of whether leave should be granted to extend time for the making of an application to review the decision of the Judicial Registrar dated 21 March 1997 in matter No.VI2046 of 1996.

(2)Any affidavit material in support of either matter be filed and served by 15 July 1997, and any answering affidavit be filed and served on or before 22 July 1997.”

Pursuant to those directions, the applicant, Mr Marks, in matter No. 2046 of 1996 has filed a notice of motion seeking a number of orders:

“1)that the decision of the Judicial Registrar Boon made on 21 March 1997 and the orders made pursuant to that decision on 21 March 1997 be reviewed pursuant to section 377, subsection (1), of the Industrial Relations Act 1988;

2)the time prescribed in Order 74, rule 3, of the Industrial Relations Court Rules for the applicant to apply to review the Judicial Registrar's decision and orders of 21 March 1997 be extended to allow the application to review to be brought;

3)that this application to review be heard together with proceeding number VI 2047 of 1996; and

4)that Sky West Airlines Pty Limited be joined as a respondent to the combined proceedings.”

The first matter to consider is whether there should be leave granted to bring the application for review out of time.  In support of that motion there was an affidavit sworn by Mr Cox, the advocate employed by Australian Federation of Air Pilots and who appeared for Mr Marks and Mr Taylor before the Judicial Registrar.  According to that affidavit, it seems fairly clear that Mr Cox was under the impression that one order of review would be sufficient to enable both applicants to have their case reheard before the Court, and that he had made the error in not giving instructions to have two motions for review filed, one in respect of each application.

In non-conformity with the directions given, an affidavit was filed and served on behalf of the respondent, Skywest Aviation, whose name now is Pearl Aviation Pty Limited.  That affidavit was not filed and served until late yesterday. It raises a disputed question of fact which goes to the full disclosure by Mr Cox as to whether he in fact always intended to seek a review of the decision affecting Mr Marks, or whether this only arose later.  It deposes to communications between Mr Cox and the deponent, Mr Den Haan.  It is very difficult for a Court to decide questions of disputed fact on affidavit material alone.  No notices of intention to cross-examine deponents have been given, although as far as the affidavit of Mr Den Haan is concerned, there was hardly time for the applicant to give any such notice, although the respondent had ample opportunity to give notice to have Mr Cox present for cross-examination.  The matter is complicated to some extent by the fact that Mr Haan is in Western Australia, although Mr Cox apparently is in Victoria.  In all the circumstances the Court is unable to make any final finding of fact on this point, but is prepared to act on inferences to be drawn from the affidavit of Mr Cox and the fact of the confusion that could arise in relation to the form of the publication of the orders of the Judicial Registrar.

Strictly speaking, there should have been two separate orders, one for each application.  If this practice had been followed, it would have been obvious that there were two separate orders which should have been made the subject of review.  The one document containing reference to the two decisions can give rise to confusion. The Court is satisfied that here Mr Cox did act under a misapprehension, and that again, despite submissions made that the only purpose of the review was to determine whether Mr Taylor in substance was still bound by the award or not, the review is by way of rehearing, and it should have been obvious that once a review in one was brought, in all probability there would have been a review in the other, seeing the two are so closely connected together.

Having formed that view, there is no material before the Court to suggest that Skywest Aviation has been prejudiced by the lapse of time. Accordingly the Court gives leave to extend the time in which the motion for review to be filed be extended to 15 July 1997, being the date of the notice of motion seeking that review was filed.  The effect of that order, which is order 2 in the notice of motion, is that there is now before the Court the motion to review the decision of the Judicial Registrar affecting Mr Marks. Once that order is made, there is no dispute that that review should be heard together with the proceeding by Mr Taylor in VI 2047 of 1996.

The next order sought does give rise to more difficult questions.  This involves, among other things, a detailed examination of the concept of contract of employment, of the relationship of employment, who is an employer, and against which employers an order can be made under the provisions of the Industrial Relations Act, now the Workplace Relations Act.  At the time of the terminations, it appears that Skywest Aviation was in fact the employer employing each of the pilots, but there was in existence the Award requiring the common seniority list of pilots affecting both Skywest Aviation and Skywest Airlines. 

There is a suggestion that, even though a contract of employment might be brought to an end unilaterally or at least breached by one party, it does not necessarily bring to an end the employment of the employee of that party.  Nice questions would have arisen if the initial application had named as respondents both Skywest Aviation and Skywest Airlines, particularly having regard to the relationship between those two employers, the obligation of each under the Award binding both those employers and the Air Pilots Federation of which Mr Marks and Mr Taylor were members, and whether Skywest Airlines, in those circumstances, could have applied successfully to be dismissed as a respondent improperly joined to those proceedings.  There is much to be said for the view that, having regard to the heavy onus on a person applying to have an application struck out under Order 20 of the Rules of Court, whether any such motion to strike out Airlines would succeed.  It is not for this Court to determine that type of question on a motion to join Airlines as a respondent pursuant to Order 6, rule 8 of the Rules of Court.  It is sufficient to say that, from what has been said by counsel for the applicant, Mr Marks, there is at least an argument that it is appropriate to have Skywest Airlines a respondent to the unlawful termination case, particularly on review, and if that were the only matter involved, the Court would be inclined to grant the order sought in order 4 of the motion.

As opposed to that, attention has been drawn to the fact that here it is now exactly 12 months since the application was initially commenced for unlawful termination. The relevant statutory provisions require an application for unlawful termination to be brought within a limited time. That limited time has long since passed. It is only now, or in the last week or so, that the question of joining Airlines as a respondent has been raised. Although there is no strict limitations of actions applicable, and although the time for commencing a proceeding can be extended, questions arise whether they should be extended on the facts of this case. It is interesting to note that there are in existence other proceedings brought by - I think it is the Federation of Air Pilots, seeking a penalty under section 178 of the Workplace Relations Act against Airlines for breach of an Award, and many of the questions which will arise as against Airlines, if they are joined as a respondent in the present matter, could well be argued before the Court in those proceedings.  I place no reliance on the existence of those proceedings.  The issue for me is to determine whether, because of the lapse of time, I should grant leave now.

Having regard to all the circumstances of the case, the long delay, the fact that this obviously is a fairly late identification of an issue when the policy of the legislation was to have the matter of unlawful termination determined speedily and quickly, and despite the fact that the position of Airlines may well be a relevant factor on the review by the Court of the decisions of the Judicial Registrar.  The review is by way of rehearing.  Despite the fact that it may well be to the advantage of Airlines to be present at that hearing to protect its interests, having regard to the delay, this is a case where the Court, in the exercise of its discretion, will not extend the time in which to allow Skywest Airlines Pty Limited to be joined as a respondent in the proceedings.

The effect of those orders is that leave has been granted to extend time for the filing of a motion for review of the decision of the Judicial Registrar made on 21 March 1997 in matter No.2046 of 1996.  That motion was filed in the Court on 15 July, and time has been extended to file that motion to that date.  It is also ordered that this matter be heard with matter No.2047 of 1996.  I think they are the only orders I should make so far in this matter.

Following further submissions on the motion for change of venue the Court continued.

The view I take on these matters is that if I consider a matter really is a matter arising in, say, Western Australia in this case, prima facie it should go to Western Australia.  It is not a case of counting heads, it is a case of the most efficient use of resources, also keeping in mind the fact that the applicant has a choice, I suppose, so you cannot really treat that as being final one way or the other.  But the view I have formed is that these applications essentially are Western Australian matters and should be heard in Western Australia.  The hearing before the Judicial Registrar was in Western Australia.  I would order that matters Nos.2046 and 2047 of 1996 be transferred to the Western Australia Registry.  I should also indicate that I would direct that the two matters be joined and heard together.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the applicants  Mr H Borenstein
Solicitors for the applicants                  Mahoneys

Counsel for the respondent                  Mr Stuart Wood
Solicitors for the respondent                 Freehill Hollingdale & Page

Counsel for Skywest Airlines               Mr F Parry