Megan Courtney Daley v Vickers Caley Publications Pty Ltd

[1995] IRCA 35

CATCHWORDS

INDUSTRIAL LAW - Termination of Employment - Application for unlawful termination - Judicial Registrar - Jurisdiction - $10, 000 limitation - Claim for commission under contract - Cross claim for damages for breach of contract.

Industrial Relations Act 1988 ss. 170EA, 170EE, 376, 430, Order 74 Rule 2
Industrial Relations Court Rules

MEGAN COURTNEY DALEY v VICKERS CALEY PUBLICATIONS PTY LTD

No. NI 668  of 1994

CORAM:      McILWAINE JR
PLACE:        SYDNEY

DATE:          20 JANUARY 1995
IN THE INDUSTRIAL RELATIONS COURT 
OF AUSTRALIA  

NEW SOUTH WALES DISTRICT REGISTRY  No. NI 668 OF 1994

BETWEEN:  MEGAN COURTNEY   DALEY

Applicant

AND:  VICKERS CALEY   PUBLICATIONS

PTY LTD                 

First Respondent

INFLIGHT   MARKETING GROUP   PTY LTD

Second Respondent

CORAM:      McILWAINE JR
PLACE:        SYDNEY
DATE:          20 JANUARY 1995

REASONS FOR JUDGMENT

The District Registry on 1 September 1994 referred this case to the Australian Industrial Relations Commission for conciliation.  The proceedings again came before the Court on the 7 November 1994 for directions following the conciliation process.  This directions hearing was stood over for a further directions hearing on 5 December 1994 at which time the matter came before me.  By consent, I granted leave to file an amended application in the Court and ordered a timetable for the parties to enable an early hearing date and listed the matter for further directions on 9 December 1994.

On the 9 December I granted leave to the applicant to file and serve a further amended application by the 16 December 1994 and to file and serve any request for particulars by the 21 December 1994.  The matter was again set down for further hearing before me on 23 December 1994.

During the course of these directions hearings I was made aware that the Respondent wished to file a cross claim against the applicant.  One of the issues that arose out of the proposed cross claim was the need to join a further Respondent i.e. the Inflight

Marketing Group Pty Ltd.  On the 23 December 1994 I ordered the first cross claimant to provide to the cross Respondents particulars of damages claimed by the cross claimant and to provide access to the applicant to material  on which its assessment of damages was made by the 27 January 1995.

Following consultation with the parties the matter came before me again on the 20 January 1995 to determine whether a Judicial Registrar has jurisdiction to hear the matter and the parties were directed to be prepared to argue this issue as a short matter before me. 

The claims which have been filed are firstly an application under Section 170EA of the Industrial Relations Act 1988 dated the 12 August 1994 and filed in the Registry on that day. An amended application under Sections 170EA and 430 of the Industrial Relations Act 1988 filed in the Court on the 5 December 1994. The applications are identical with the exception that Paragraphs three and four have been added in the amended application dated 1 December 1994. Then there is a further amended application undated but filed in the Court on 19 December 1994. The further amended application added the Inflight Marketing Group Pty Ltd as a respondent. The applicant claims:-

(1a) An order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”)

(1b) An order requiring the First Respondent, or in the alternative the Second Respondent, to reinstate the employee in the employment; and

(1c) An order that the First Respondent, or in the alternative the second Respondent, pay compensation to the employee

(2) Such other orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee had not been terminated : see Section 170EE of the Act

(3) In the exercise of the Courts jurisdiction under Section 430 of the Act an order requiring the first Respondent to pay the employee the sum of $24, 716.00  in respect of commission due and owing to the employee pursuant to her contract of employment with the Respondent, or such other amount as is found to be owing in respect of commission, particulars of which commission have been supplied to the first Respondent’s legal representatives.

(4) In the alternative, in the exercise of the Court’s jurisdiction under Section 430 of the Act, an order requiring the second respondent to pay the employee monies owing in respect of commission, particulars of which claimed commission have been supplied to the second Respondent’s legal representatives

(5) In the exercise of the Court’s jurisdiction under Section 430 of the Act an order requiring the first Respondent to pay the employee salary and other entitlements pursuant to her contract of employment with the first Respondent from the 29 July 1994 to date and continuing.

(6) In the alternative, in the exercise of the Court’s jurisdiction under Section 430 of the Act, an order requiring the second Respondent to pay to the employee salary and other entitlements pursuant to her contract of employment with the second Respondent from 29 July 1994 to date and continuing.

Mr Hodgkinson of Counsel appeared on behalf on both respondents.  Mr Punch, solicitor, appeared for the applicant.

It is convenient to set out an edited version of the submissions which were made to me by Mr Hodgkinson.

“The purpose of today's proceedings is to present the position that the parties have identified in terms of whether or not this matter can be dealt with before a Judicial Registrar.  The parties have had some discussions about this and the purpose of presenting this application and the position that the parties have adopted is really so as to avoid costs in having a proceedings which could either only go part way in our view or alternatively would have to be aborted.

“So the parties do not wish to be seen to be seen taking a position adverse to the role of the Judicial Registrar in these proceedings, rather I think, both of the parties to date have been more than pleased with the approach of the Judicial Registrar in getting the proceedings on and going and to the point that they are, but there is we perceive, a jurisdictional difficulty with the Judicial Registrar dealing with this matter as it is now pleaded.

. . . . . . . . . .

“The argument really is relatively brief.  It involves little more than a consideration of what is firstly before the court, that will takes us only a minute or so and then secondly, it involves a consideration of the Act and the Rules and the conferring by the Act and Rules of jurisdiction upon Judicial Registrars. It will also add the significant advantage to the parties in these proceedings of avoiding additional costs which is something that has been a substantial motivation in the adopting of the attitude that we have taken.”

Mr Punch then outlined the position of the applicant: 

“The application that the applicant moves on is the further amended application of 19 December 1994.  What that application does is it adds as a second respondent the In-Flight Marketing Group so far as the applicant is concerned, for more abundant caution, because there is a live issue as to who was the employer.  We say it was Vickers Caley was the employer at all relevant times.  It is strongly asserted by Vickers Caley that it was In-Flight Marketing Group at all relevant times and particularly at the time of examination.

“What the applicant has done has been to add the second respondent and plead all its claims against each respondent in the alternative and the effect of that, of course, is that then In-Flight Marketing Group which believes it has a claim against the applicant in respect of what it alleges to be the contract of employment it had with the applicant is, therefore, enabled to bring that claim as a cross-claim, to bring that extra claim in.”

Mr Hodgkinson continued his submission.

“Look then to the paragraphs from 3 in the further amended application.  Now, paragraphs 1 and 2 are really the standard termination of employment claim that one would see in this jurisdiction but 3 introduces a claim seeking a payment of commission.  That is, an allegation of contract and an enforcement of that contract.  That is the effect of Paragraph 3.  Paragraph 4 is an alternative way of seeking the same thing.  Paragraph 5 introduces a claim that salary be paid.  Again, the effect of the claim is that salaries paid pursuant to a particular contractual provision and that the applicant seeks enforcement of that contractual provision.

“Now, Paragraph 6 is an alternative way of seeking 5. So, what we are dealing with here is the applicant seeking to have enforced contractual provisions, one for commission, the other for wages. Not seeking to have, as they have done in paragraph 1 and 2 - and as they are entitled to do - compensation as an alternative to reinstatement or reinstatement. They are entitled to do that and they have done that but they are seeking, in addition to that, these enforcement matters. Now, the respondents have put on a cross-claim and the cross-claim seeks damages arising out of an alleged breach of contract. So, it does not seek termination. Again, it relies on the accrued jurisdiction of the court under Section 430 of the Industrial Relations Act 1988.

“It is important to identify that they are the claims when one considers the relevant provisions that give the Judicial Registrar jurisdiction and the first of the provisions then to consider in the light of the fact that what is really being sought is enforcement claims by the applicant and damages claims by this respondent.

“One goes then firstly to Section 376(1) which is in these terms:

“The rules of the court may delegate to Judicial Registrars either generally . . . . . . . . . . insofar as the proceedings relate to.”

“The effect of that, in my submission, is the words "insofar as the proceedings relate to" are words that narrow the scope of jurisdictional basis for the Judicial Registrar but that once you are within the jurisdictional basis you can exercise all the power the Court has.  That is, you can summons witnesses, you can issue bench warrants, you can swear witnesses to tell the truth and the like.  You can conduct hearing, issue decisions at transcript.  Now, what one then looks at is (a) and (b) because they’re the jurisdictional limitations, in my submission - the first is (a):

(a) A claim for an amount of not more than an amount specified in the Rules.

“And I will come to that actual amount but it is $10,000.  Or (b): - - -

“What you have got to do is characterise what is being claimed and once you characterise it, then you can apply this jurisdictional base.  Look to (b) and then you see:

(b) A claim that the termination of the employee's employment was unlawful.

“Well, nobody has any difficulty understanding that.

Or that the proposed termination of the employee's employment would be unlawful.

“So, that is just a pre-termination consideration which one understands a Judicial Registrar has.

Whether because of this Act or any other law including an unwritten law of the Commonwealth or state or territory.

“Now, can I respectfully submit that what is conferred on the Judicial Registrar is the capacity to deal with unlawful termination or proposed unlawful termination whether it is unlawful as a result of this Act or any other Act and, indeed, the common law. It seems to go as wide a common law claim. So that if one had a claim brought pursuant to the provisions of this Act and tacked on to it pursuant to Section 430, a claim arising out of that termination, which was a common law claim then the Judicial Registrar would have the scope, pursuant to this Section to deal with it but that is not what we have got here.

“Now, one does not need then to further consider Section 376 other than just to note Section 376(7) which is in these terms:

As well as the powers delegated under subsection 1, the Judicial Registrar has had such other powers as are conferred on them by this Act, the Regulations or the Rules of Court.

“I simply note at Section 486 there is a power conferred to make rules and then one needs to look to a delegation of powers to Judicial Registrars which is found in the Court Rules.”

“You have Order 74, Rule 2, Powers of the Judicial Registrar. Now, rule 2(a) and (b) is very similar to the Sections we have just seen in Section 376(1). That is that in relation to any proceedings in the Court insofar as the proceedings relates to (a) a claimed amount of not more than $10,000 or such greater amount as Regulations may from time to time prescribe or (b) a claim the termination was unlawful, etcetera. Now, Order 74, Rule 2(b) is in identical terms as I read out in Section 376(1)(b) and has the identical basis for conferring jurisdiction in my submission. Then Order 74, Rule (2) goes on and says all the powers of the Court are delegated to each Judicial Registrar.

“Now, what I submit is this, that the jurisdictional basis for the Judicial Registrar to act is found in Section 376(1). It is repeated in Section 376(2)(b). Take for a moment that there is an award enforcement claim for a sum under $10,000, properly before a Judicial Registrar properly within jurisdiction. What then is added to that award enforcement claim is a damages claim for $250,000. Now, nobody would really suggest that that fits in within the limitation of no more than $10,000 yet one would have to go to Order 74, Rule 2 or to Section 376(1)(a) to find the jurisdictional base for the Judicial Registrar to have acted in respect of the first claim, that is the underpayment of wages of less than $10,000. What would happen if you determined it in a different way is that the effectively the limitation that is placed on the Judicial Registrar's function would be just a complete nullity.

“Now, with respect and notwithstanding that the parties may be more than happy to have Judicial Registrars deal with these matters, once they start to deal pursuant to Section 430 into the areas that these matters go in, seeking identified first of all as the Commission claimed for twenty four plus thousand, which is the easiest of the examples, just to see why that could not be dealt with by the Judicial Registrar, the jurisdiction becomes limited and the matter has to go to the Judge. Now, that is the problem the parties face in these proceedings. We had both taken additional claims. As a result of those additional claims we are - well, certainly those that I represent, are very fearful that if we proceed before a Judicial Registrar there will be a jurisdictional hole in those proceedings which is insurmountable and which effectively - the real potential because it is all bound up in one is that the whole proceedings will have to be recommenced.

“That will not do us any good in terms of either having the matter dealt with speedily or alternatively costs.  It will adversely affect both of the parties in my submission in both of those respects.  It seems clear once one looks at the Act in that way and the Rules that there is a limitation and we will ask that the matter be referred to and considered so we can move forward in this case.”

The applicant through her solicitor, Mr Punch, then agreed with much of what Mr Hodgkinson had said.  He also submitted he had no difficulty whatsoever with the matters, provided they are within jurisdiction, being dealt with by a Judicial Registrar. 

“From the applicant’s point of view the process of getting a hearing is probably going to be somewhat prompter before a Judicial Registrar anyway so from a self-interest point of view the applicant would probably prefer that it was available to her to proceed before a Judicial Registrar.

“But we come up against this problem, that if there is a jurisdictional bar, we are in a situation where there are no costs orders available so that any costs that are thrown away will not be recoverable. 

“The position is that if there should be jurisdictional problems that arise in the course of a hearing before a Judicial Registrar, there will be a penalty as a matter of practicality that the applicant - obviously the respondent as well, but the applicant from our point of view will certainly suffer and that is to be avoided if at all possible. Secondly, we would say that the analysis that Mr Hodgkinson has undertaken is we say correct, we agree with it. I might make this point that it may well be that if we were to say, amend our claim - which we are not going to do - to say that we only claim $10,000 for commission and we only claim $10,000 for unpaid wages since the alleged date of termination, then our claim would probably then fit within Section 376 but we certainly are not going to do that. But if ever we were to do that, we have this additional problem that the respondent has made a cross-claim against the applicant which is now filed in these proceedings and as a consequence that seems clearly to be a matter that does not fall within the jurisdiction of a Judicial Registrar and it would not be in the interests of our client if it can be avoided for there to be, say a Judicial Registrar dealing with our claim and a Judge dealing with the other one. I do not think it should happen.”

My original intention was to give you dates for hearing now but in the light of what has been submitted and the fact that the application dated 1st December 1994 included a claim for $24, 716 under Section 430, then I am of the view that the jurisdiction of the Judicial Registrar is initially exceeded and that a Judicial Registrar is not able to hear the matter.

I would take a different view had the claim been on the basis of an unfair dismissal and a claim for $10,000 or less. Then, quite clearly in my view, in those circumstances a Judicial Registrar would have power to hear the claim. If the respondent chose to put on a cross-claim exceeding the $10, 000 under the power delegated to the Judicial Registrar by Order 74 Rule 2 all the powers of the Court are available to the Judicial Registrar. In my view a Judicial Registrar would have the power to hear such a cross-claim. If a decision along those lines is not taken, any respondent in these cases could lodge a cross-claim for an amount exceeding $10,000 and, therefore, determine that the matter had to be dealt with by a Judge.

It is not the intention, as I understand the legislation, of appointing Judicial Registrars to hear these cases that the time of Judges be taken up on unlawful termination claims where the matter is not involved. 

In addition, the view of the Court generally, on my understanding of the current authorities, is that questions of jurisdiction ought to be heard as part of the hearing before a Judicial Registrar rather than there be a separate issue taken on the basis of a jurisdictional point and at the end of the trial the issue does not arise as a result of the finding on the facts by the Judicial Registrar.

Now, in this case, it is clear from the pleadings that an amount for commission is claimed in excess of the amount that is available to me as a Judicial Registrar initially to determine, that is $10,000.  The amount claimed is $24,716 and I note that this was in the amended application filed in Court on 5th December 1994.

To be fair to the applicant this arose out of an attempt to facilitate the hearing before this Court of all the issues between the parties which required the introduction of the In-Flight Marketing Group Pty Ltd as a party. The fact is that the application currently before the Court - the further amended application of 19 December 1994 - in Paragraph 3 makes a claim under Section 430 of the Act for the sum of $24, 716.00 in respect of commission. I consider that there is no jurisdiction for me to hear the case.

Mr Hodgkinson informs me that the cross-claim, although the amount is not specified, will exceed the amount of $10, 000.00 in any case.  In the circumstances I feel that there is also an additional issue that a Judicial Registrar would not have jurisdiction to hear the cross claim.  As I say, initially, on the original application as based, I would have ruled that a Judicial Registrar would have had jurisdiction.  However, in the light of what has now been put, I determine that a Judicial Registrar does not have jurisdiction and I refer the matter to a Judge for hearing.

I reserve the applicant's right to seek an order from the Judge to reply to the particulars of damages given on the cross claim, but apart from that I am satisfied that the matter is ready to be set down for hearing without further preparatory work by both parties.

I reserve the question of costs.

I refer the case for hearing before a Judge.

_________________________________________________________________

REPRESENTATION

Solicitor for the Applicant:                Mr Punch, Carroll & O’Dea, Solicitors

Solicitor for the Respondent:             Mr Spedding, I S P Law, Solicitors

Counsel for the Respondent:             Mr Hodgkinson

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of Judicial Registrar McIlwaine.

Associate:       Julianne Taverner
Date:              16 February 1995