Naqvi v MBP (SA) Pty Ltd

[1981] FCA 143

Re: SHAHID NAQVI
And: M.B.P. (S.A.) PTY. LIMITED
SA Nos. 9 and 10 of 1981
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - Informations laid and summonses filed alleging commission of offences under s.5(1)(aa) and s.5(1)(f) of the Conciliation and Arbitration Act outside the period of one year from the date shown as the day of the alleged offences - time limitation in which to commence such prosecutions - whether Court has jurisdiction to hear such prosecution - proceedings instituted "vexatiously or without reasonable cause" - costs of such proceedings. Conciliation and Arbitration Act s.5(1)(aa) and s.5(1)(f), s.197A, Rules of Court 0.4 r.16 and 0.49 r.1 and 2. Crimes Act 1914 s.21(1)(c)

HEARING

ADELAIDE

#DATE 1:9:1981

ORDER

(1) The information and summons be dismissed.

(2) The prosecutor pay the defendant's costs.

The information and summons be dismissed.

JUDGE1

In matters S.A. Nos. 9 and 10 of 1981 the prosecutor Shahid Naqvi alleges that the defendant M.B.P. (S.A.) Pty. Limited committed offences against s.5(1)(aa) and s.5(1)(f) of the Conciliation and Arbitration Act 1904 respectively. The information in each matter was signed by the prosecutor in accordance with 0.4 r.16 and 0.49 r.1 and 2 of the Rules of Court before a Deputy Registrar of the Court on 9 July 1981. On that date the said informations and the summonses thereon were filed with the Court.

In each information the date shown as being the day on which each offence was alleged to have been committed is 28 March 1980, whilst such date as alleged in each of the summonses is shown as 28 March 1981.

Paragraphs (aa) and (f) of sub-s.5 (1) of the Act read:

"5(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee -

(aa) has refused or failed to join in industrial action; or ........ ........ ........ ..

(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. Penalty: Four hundred dollars."

Both matters were listed for directions on 22 July 1981. Mr Ward of Counsel appeared for the prosecutor and sought leave to amend the summonses in both matters by consent. Such leave was granted. The effect of such amendments was that the date of the alleged offences as set out in the both summonses was 28 March 1980.

Mr Sulan of Counsel who appeared for the defendant in each of the matters raised as a preliminary point pursuant to 0.29 of the Rules of Court the question of time limitations and submitted that as each matter had been commenced outside the period of one year after the commission of the alleged offences the Court had no jurisdiction to hear the matters. He relied on s.21(1)(c) of the Crimes Act (Cth) 1914 which reads:

"21(1) A prosecution in respect of an offence against any law of the Commonwealth may be commenced as follows:

(c) where the punishment provided in respect of the offence is a pecuniary penalty and no term of imprisonment is mentioned-at any time within one year after the commission of the offence."

At the request of Mr Ward the Court then adjourned the matter for argument of the preliminary point.

Such argument was heard by the Court on 14 August 1981 when the Court determined that the information and summons in each case having been issued outside the one year period referred to in s.21(1)(c) of the Crimes Act should be dismissed. Mr Sulan then sought an order that the prosecutor pay to the defendant its costs. Owing to its commitments the Court indicated that it would publish its reasons for judgment at a later date and reserved its decision on the question of costs.

Mr Ward submitted that s.21(1)(c) of the Crimes Act does not apply to a summons upon information wherein it is alleged that the defendant has committed an offence against the provisions of any paragraph of s.5(1) of the Act for the reason that sub-s.(5) of s.5 makes provision for the imposition by the Court of an 'additional punishment' upon a defendant employer who is convicted of an offence against the section. Such 'additional punishment' he argued was the reimbursement of any wages lost by an employee wrongfully dismissed and/or the reinstatement of the dismissed employee in his old position or a similar position. Accordingly, it was submitted that as the 'punishment' provided for in s.5 of the ACt was not limited to the 'punishment' provided for in s.21(1)(c) of the Crimes Act that paragraph of sub-s.21(1) did not apply. This argument is rejected.

There are three separate and independent sub-sections within s.5 which proscribe certain actions by an employer or an employee. The first (namely sub-s.(1)) makes it an offence for an employer to dismiss an employee or injure him in his employment or alter his position to his prejudice by reason of certain circumstances therein set out.

The second sub-section (namely sub-s.(1A)) makes it an offence for an employer to threaten to dismiss an employee or to injure him in his employment or to alter his position to his prejudice by reason of certain circumstances therein set out.

The third sub-section (namely sub-s.(2)) makes it an offence for an employee to cease work in the service of his employer by reason of certain circumstances therein set out.

At the foot of each of those sub-sections is the word "Penalty:" followed by an amount of money in words.

Sub-section (3) then provides that a reference to an organization in the section is to be read as including a reference to a branch of the organization while sub-s.(4) makes provision for the shifting of the onus of proof upon a defendant employer in certain circumstances.

Then follows sub-s.(5) which reads:

"Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position."

It is clear that sub-s.(5) does not make provision for an offence against the Act or for the imposition of a pecuniary penalty. In my view sub-s.(5) does not make provision for a punishment at all.

Further s.41 of the Acts Interpretation Act (Cth) 1901 so far as is relevant provides that a pecuniary penalty set out at the foot of any sub-section of any Act, but not at the foot of the section shall indicate that any contravention of the sub-section shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned; provided that where the penalty is expressed to apply to a part only of the section or sub-section it shall apply to that part only.

Accordingly I am of the view that s.21(1)(c) of the Crimes Act does apply to matters brought under s.5(1) of the Act. Clearly the date when each of the alleged offences in both matters occurred was outside the one year period referred to in s.21(1)(c) of the Crimes Act. There is no provision either in the Crimes Act itself or in the Act giving the Court power to extend such period. As a consequence the informations and summonses were issued out of time and should be dismissed.

In Roberts -v- General Motors Holden's Employees' Canteen Society Inc. 25 F.L.R. 415 the Court constituted by three Judges of the Australian Industrial Court in dismissing one of the informations and summonses issued therein stated at p.418

"The information was dated 19 June and the summons was issued on 30 June 1975 both well outside the twelve months allowed by s.21 of the Crimes Act in cases of offences for which a pecuniary penalty is provided."

Again in Bowling -v- G.M.H. Limited (No.2) 33 A.L.R. 297 a Full Court of this Court stated at p.301:

"Under s.13 of the Crimes Act 1914 as amended, unless a contrary intention appears in the Act creating the offence, any person may institute proceedings for the summary conviction of a person in respect of any offence against the law of the Commonwealth punishable upon a summary conviction. There is no contrary intention appearing in the Conciliation and Arbitration Act with respect to s.5 and it follows therefore that any person may institute proceedings for the summary conviction of a person in respect of an offence under s.5 of the Act. The proceedings can be instituted in either the Federal Court or in a court of summary jurisdiction, but must be commenced within one year after the commission of the offence : s.21 of the Crimes Act."

As to the question of costs, s.197A of the Act provides that a party to a proceeding before the Court shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause.

In my view in circumstances such as those under consideration a Court, but for s.197A of the Act, would on the probabilities order that the prosecutor, being the unsuccessful party, pay the defendant's costs.

Clearly, if the information and summons in each of these matters had been laid and filed within one year of the commission of the alleged offences it could not have been suggested that either matter had been instituted without reasonable cause. Indeed Counsel for the defendant did not suggest that this was so or that the prosecutor, knowing of the limitation period, deliberately issued the summonses and sat back to see if the defendant would raise s.21(1)(c) of the Crimes Act as a defence.

Accordingly, the question for determination in this regard is: does a prosecutor who commences a proceeding under s.5 of the Act outside the period of one year provided for in s.21(1)(c) of the Crimes Act institute that proceeding vexatiously or without reasonable cause.

In my view the provisions of s.21(1)(c) of the Crimes Act prohibits the commencing of a proceeding outside the stated period in the paragraph and that thereafter a court has no jurisdiction to hear any proceeding so commenced. (see Paine -v- Loft 1953 V.L.R. 601 @ pp.611-617; Vehicle Builders Employees Federation of Australia -v- G.M.H. Pty. Limited (1977) 32 F.L.R. 100 @ pp.111-113). This is to be contrasted with limitation provisions in regard to certain causes of action where the commencement of such an action outside the relevant limitation period is a matter of procedure only and may be pleaded by a defendant in bar (see Pedersen -v- Young (1964) 110 C.L.R. 162 @ p.169 and Australian Iron and Steel Pty. Limited -v- Hoogland (1962) 108 C.L.R. 471 @ p.488 and cases therein referred to ).

The provisions of s.197A of the Act were considered by Northrop J. in Heidt -v- Chrysler Australia Limited (1976) 26 F.L.R. 257 @ 271 et seq. His Honour therein set out the history and purpose of the section. I respectfully agree with his analysis in this regard together with his conclusions drawn from the examination of the authorities referred to in his reasons for judgment. It is noted that such judgment was given before 1 February 1977 the date when s.118A of the Act came into operation. Since that date the provisions of s.116 of the Act to which his Honour makes reference in his reasons for judgment has no relevance as "the Court" referred to in that section is not the Federal Court of Australia in its Industrial Division (see s.118A(1)(b)). It is sufficient to cite one or two passages from his Honour's reasons for judgment. At p.272 he states:

"The policy of s.197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court."

A review of authorities is then made which includes, @ p.273, a citation from the judgment of Barwick C.J. in General Steel Industries Inc. -v- The Commissioner of Railways (N.S.W.) (1969) 112 C.L.R. 125. A passage from that citation is, in my view, material in considering the present matter. The Chief Justice when referring to 0.26 r.18 of the High Court Rules in which the words "frivolous or vexatious" are used stated @ p.129:

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed: ' so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. "At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'. "

Being of the opinion that the Court had no jurisdiction to hear the present matters at the time when they were instituted as they were then statute barred and applying the principles referred to above I am of the opinion that the present proceedings were instituted vexatiously or without reasonable cause within the meaning of the phrase as used in s.197A of the Act. Accordingly I am of the view that an order should be made that the prosecutor in these matters pay to the defendant its costs, such costs being limited to the costs in matter S.A. No.9 of 1981 only.